Opinion
Civil Action No. 14-cv-02513-REB-MJW
01-12-2016
BRANZAN ALTERNATIVE INVESTMENT FUND, LLLP, on behalf of itself and all others similarly situated, Plaintiff, v. THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., Defendants.
REPORT AND RECOMMENDATION on
DEFENDANT THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.'S MOTION FOR JUDGMENT ON THE PLEADINGS ON TWO REMAINING CLAIMS ASSERTED IN PLAINTIFF'S COMPLAINT
(Docket No. 84) MICHAEL J. WATANABE United States Magistrate Judge
On September 29, 2015, District Judge Robert R. Blackburn adopted the undersigned's report and recommendation, granted in part two pending motions to dismiss, and dismissed all claims in this case except for (1) Count Two and (2) Count Five insofar as it is derivative of Count Two. (Docket No. 76.)
At a scheduling conference in November, the remaining parties requested and received a briefing schedule for judgment on the pleadings as to those remaining claims, in lieu of a Rule 16 scheduling order. (Docket No. 83.) Defendant filed that motion. (Docket No. 84.) In response, Plaintiff argued that the motion was procedurally improper but that, in the interest of judicial economy, Plaintiff did not oppose dismissal of the remaining claims. (Docket No. 86.)
In light of the foregoing, Plaintiff has confessed the motion. The Court recommends that it be granted.
Recommendation
For the foregoing reasons, the undersigned RECOMMENDS that:
• Defendant Bank of New York Mellon Trust Company's Motion for Judgment on the Pleadings on Two Remaining Claims Asserted in Plaintiff's Complaint (Docket No. 84) be GRANTED; and
• Counts Two and Five be DISMISSED in their entirety.
NOTICE: Pursuant to 28 U.S.C. § 636(b)(1)(C) and Fed. R. Civ. P. 72(b)(2) , the parties have fourteen (14) days after service of this recommendation to serve and file specific written objections to the above recommendation with the District Judge assigned to the case. A party may respond to another party's objections within fourteen (14) days after being served with a copy. The District Judge need not consider frivolous, conclusive, or general objections. A party's failure to file and serve such written, specific objections waives de novo review of the recommendation by the District Judge, Thomas v. Arn , 474 U.S. 140, 148-53 (1985), and also waives appellate review of both factual and legal questions, Makin v. Colo. Dep't of Corr. , 183 F.3d 1205, 1210 (10th Cir. 1999); Talley v. Hesse , 91 F.3d 1411, 1412-13 (10th Cir. 1996). Dated: January 12, 2016
Denver, Colorado
/s/ Michael J . Watanabe
Michael J. Watanabe
United States Magistrate Judge