Opinion
Civil Action No. 03-cv-02098-WDM-PAC.
January 3, 2006
ORDER ON RECOMMENDATION OF MAGISTRATE JUDGE
This matter is before me on the order and recommendation of Magistrate Patricia A. Coan, issued November 17, 2005, regarding several motions in this case. Magistrate Judge Coan recommends that: (1) Defendants Mr. Shapiro, Ernest J. Codilis, Jr., Toni M.N. Dale, Lynn M. Janeway, Kerry A. Campbell, and Mark Synan's motion to dismiss for failure to serve, filed on April 20, 2005, be granted; (2) Defendants Meinhold, Stawiarski, Shapiro, Codilis LLP (MSSC), Don H. Meinhold, and Leo E. Stawiarski's motion for summary judgment, filed April 20, 2005, be granted; (3) Plaintiff's three rule 60(b) motions, filed October 25 and 28, 2005, be denied; and (4) Plaintiff's claims against the defendants listed as Duns 183810683 and Duns 131357068, and 20 John Does and Jane Does as may be discovered be dismissed sua sponte. No objections to this recommendation have been filed and therefore de novo review is not required. 28 U.S.C. § 636(b). Having reviewed the pertinent portions of the record in this case, including the motions, the responses, and the recommendation, I will accept the recommendation as discussed below.
1. Motion to Dismiss
I agree with Magistrate Judge Coan that, in spite of my February 8, 2005 Order giving her additional time to demonstrate proper service on the moving defendants, she has again failed to do so. Moreover, she has not moved for an extension of time, nor demonstrated good cause, and we are now well past the 120-day deadline contained in Fed.R.Civ.P. 4(m), and the March 4, 2005 deadline contained in my Order. Therefore, dismissal under Fed.R.Civ.P. 4(m) is appropriate.
2. Motion for Summary Judgment
I also agree that the summary judgment motion should be granted. First, Magistrate Judge Coan is correct that all of Plaintiff's claims under the Federal and Colorado Fair Debt Collection Practices Acts are barred by the applicable statutes of limitations. See 15 U.S.C. § 1692k(d); Colo. Rev. Stat. Ann. § 12-14-113(4). Second, I agree that Plaintiff is not the real party in interest regarding any claims arising after August 20, 2002, when she transferred all of her rights in the relevant property to a trust. And, as Plaintiff states that the trust is no longer a viable entity, (Pl's Resp. Br., at 4, ¶ 5), leave to join or substitute the real party in interest would be futile. Third, I agree that Plaintiff's Uniform Consumer Credit Code (UCCC) claims must fail. Although the recommendation does not discuss the possibility that the UCCC might apply to Plaintiff's disclosure claims, see Colo. Rev. Stat. Ann. §§ 5-3-101(1) 5-5-202, these claims are barred by the statute of limitations at § 5-5-202(5). Finally, as these grounds are sufficient to justify granting summary judgment on all of Plaintiff's claims against the moving defendants, I need not address Magistrate Judge Coan's alternate ground — that Plaintiff has failed to meet her summary judgment burden of demonstrating genuine issues of material fact.
3. Rule 60(b) Motions
I also agree with Magistrate Judge Coan that Plaintiff's rule 60(b) motions should be denied. These motions are not timely, and Plaintiff has failed to demonstrate sufficient cause to warrant this extraordinary relief.
4. Dismissal of Unknown Defendants
Finally, I agree that Plaintiff's claims against defendants listed as Duns 183810683 and Duns 131357068, and 20 John Does and Jane Does should be dismissed on futility grounds.
Accordingly, it is ordered:
1. The recommendation of Magistrate Judge Coan, issued November 17, 2005 (Docket No. 150), is accepted as modified herein.
2. Defendants Mr. Shapiro, Ernest J. Codilis, Jr., Toni M.N. Dale, Lynn M. Janeway, Kerry A. Campbell, and Mark Synan's motion to dismiss for failure to serve, filed on April 20, 2005 (Docket No. 60), is granted, and Plaintiff's claims against these defendants are dismissed without prejudice.
3. Defendants Meinhold, Stawiarski, Shapiro, Codilis LLP (MSSC), Don H. Meinhold, and Leo E. Stawiarski's motion for summary judgment, filed April 20, 2005 (Docket No. 55), is granted, and Plaintiff's claims against these defendants are dismissed with prejudice.
4. Plaintiff's rule 60(b) motions, filed October 25 and 28, 2005 (Docket Nos. 128, 130, 131), are denied.
5. Plaintiff's claims against the defendants listed as Duns 183810683 and Duns 131357068, and 20 John Does and Jane Does as may be discovered are dismissed without prejudice.
6. This case remains pending on Plaintiff's claims against defendant Washington Mutual.