Opinion
Civil Action No. 1:19-cv-03201-DDD-SKC
04-20-2021
MICHELA MORELLATO BLOSFIELD, Plaintiff, v. UNITED STATES OF AMERICA, Defendant.
ORDER ADOPTING MAGISTRATE JUDGE'S RECOMMENDATION AND DENYING MOTION TO AMEND
Before the court is the recommendation (Doc. 37) of United States Magistrate Judge Kato Crews that the Court dismiss Plaintiff's complaint for lack of subject matter jurisdiction. The recommendation states that objections to the recommendation must be filed within fourteen days after its service on the parties. (Doc. 37 at 11 (citing 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b).) The recommendation was mailed and docketed March 26, 2021, and no party has objected to the recommendation.
In the absence of a timely objection, the Court may review a magistrate judge's recommendation under any standard it deems appropriate. Summers v. Utah, 927 F.2d 1165, 1167 (10th Cir. 1991) (citing Thomas v. Arn, 474 U.S. 140, 150, 154 (1985)). In this matter, the Court has reviewed the recommendation to satisfy itself that there is "no clear error on the face of the record." Fed. R. Civ. P. 72(b) Advisory Committee Notes. Based on that review, the Court has concluded that the recommendation is a correct application of the facts and the law. As Judge Crews explained, Ms. Blosfield failed to satisfy the exhaustion requirement of the Federal Tort Claims Act.
Ms. Blosfield moved to amend her complaint after Defendant filed its motion to dismiss. Although Federal Rule of Civil Procedure 15 generally favors permitting an amendment, a district court may deny a motion to amend when the amendment would be futile. Jefferson Cty. Sch. Dist. No. R-1 v. Moody's Investor's Servs., Inc., 175 F.3d 848, 859 (10th Cir. 1999). That is the case here. Ms. Blosfield's motion fails to identify any fact that would overcome the core deficiency in her complaint identified by Judge Crews—namely, that she properly exhausted her administrative remedies by demanding a sum certain from the Army. Her motion to amend is thus denied.
Accordingly, it is ORDERED that the Report and Recommendation (Docs. 37) is ACCEPTED and ADOPTED. Defendant's Motion to Dismiss (Doc. 21) is GRANTED, and it is ORDERED that this action is DISMISSED WITHOUT PREJUDICE. Plaintiff's Motion to Amend her Complaint (Doc. 34) is DENIED AS MOOT. The clerk is directed to close the case. DATED: April 20, 2021
BY THE COURT:
/s/_________
Hon. Daniel D. Domenico