Opinion
Civil Case No. 11-cv-01089-REB-MJW
02-22-2012
BRIAN EDMOND BATH, Plaintiff, v. EMC MORTGAGE CORPORATION, a Texas corporation, EXPERIAN INFORMATION SOLUTIONS, INC., an Ohio corporation, and Defendants.
Judge Robert E. Blackburn
ORDER ADOPTING RECOMMENDATIONS OF THE
UNITED STATES MAGISTRATE JUDGE
Blackburn, J.
The matter before me is the magistrate judge's Recommendation That This Case be Dismissed with Prejudice Based Upon the Plaintiff's Failure To Appear and Failure To Comply with Court Orders [#111] filed February 1, 2012. No objections having been filed to the recommendation, I review it only for plain error. See Morales-Fernandez v. Immigration & Naturalization Service, 418 F.3d 1116, 1122 (10th Cir. 2005). Finding no such error in the magistrate judge's recommended disposition, I find and conclude that the recommendation should be approved and adopted.
"[#111]" is an example of the convention I use to identify the docket number assigned to a specific paper by the court's electronic case filing and management system (CM/ECF). I use this convention throughout this order.
This standard pertains even though plaintiff is proceeding pro se in this matter. Morales- Fernandez, 418 F.3d at 1122. In addition, because plaintiff is proceeding pro se, I have construed his pleadings more liberally and held them to a less stringent standard than formal pleadings drafted by lawyers. See Erickson v. Pardus, 551 U.S. 89, 94, 127 S. Ct. 2197, 2200, 167 L.Ed.2d 1081 (2007); Andrews v. Heaton, 483 F.3d 1070, 1076 (10th Cir. 2007); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991) (citing Haines v. Kerner, 404 U.S. 519, 520-21, 92 S.Ct. 594, 595-96, 30 L.Ed.2d 652 (1972)).
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THEREFORE, IT IS ORDERED as follows:
1. That the magistrate judge's Recommendation That This Case be Dismissed with Prejudice Based Upon the Plaintiff's Failure To Appear and Failure To Comply with Court Orders [#111] filed February 1, 2012, is APPROVED AND ADOPTED as an order of this court;
2. That the following motions are DENIED AS MOOT:
a. Defendant EMC Mortgage Corporation's Motion To Dismiss Second Amended Complaint for Failure To State a Claim Under Fed.R.Civ.P. 12(b)(6) [#77] filed December 5, 2011;
b. Plaintiff [sic] Motion To Dismiss Amended Complaint Without Prejudice Pursuant to Federal Rule of Civil Procedure 41(a)(1)(I) [#103] filed January 20, 2012; and
c. Defendant Experian Information Solutions, Inc.'s Joinder to Defendants [sic] EMC Mortgage Corporation's Response to Plaintiff's Motion To Dismiss [#108] filed January 31, 2012;
3. That plaintiff's claims against defendants are DISMISSED WITH PREJUDICE pursuant to Fed. R. Civ. P. 16(f) and 41(b) and D.C.COLO.LCivR 41.1 based on plaintiff's repeated and unexplained failures to appear as ordered by the court and to comply with the duly issued orders of the court;
4. That judgment SHALL ENTER on behalf of defendants, EMC Mortgage Corporation and Experian Information Solutions, Inc., against plaintiff, Brian Edmond Bath, as to all claims for relief and causes of action asserted against them; provided, that the judgment shall be with prejudice;
5. That the Trial Preparation Conference currently scheduled for Friday, October 26, 2012, at 3:30 p.m., and the trial currently scheduled to commence on November 19, 2012, are VACATED; and
6. That, as provided by Fed. R. Civ. P. 16(f)(2), defendants are AWARDED their reasonable expenses, including attorney fees, incurred in connection with their appearances at the January 20, 2012, scheduling conference, and the February 1, 2012, scheduling conference and show cause hearing; provided further that defendants SHALL FILE motions substantiating such reasonable expenses by no later than March 14, 2012.
Dated February 22, 2012, at Denver, Colorado.
BY THE COURT:
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Robert E. Blackburn
United States District Judge