Opinion
Civil Action No. 99-cv-01462-ZLW-CBS.
January 3, 2008
ORDER
The matter before the Court is Petitioner's Motion For Relief Under Rule 60 F.R.C.P. (60-b) (Doc. No. 99) [hereinafter Motion]. The Motion was referred to Magistrate Judge Craig B. Shaffer pursuant to 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b). On December 12, 2007, the Magistrate Judge issued a Recommendation that Petitioner's Motion be denied without prejudice. Plaintiffs timely filed objections to the Recommendation.
Order (Doc. No. 103) [hereinafter Recommendation].
Objection To Magistrates [sic] Recomendation [sic] To Dismiss Motion w/out Prejudice (Doc. No. 105).
The Magistrate Judge denied Petitioner's Motion under Fed.R.Civ.P. 5(a) and (b) and D.C.COLO.LCivR 5.1F for failure to attach a Certificate of Mailing to his original Motion. The Court agrees with the Magistrate Judge that no Certificate of Mailing was filed concurrently with the Motion. The Court finds that due to the amount of time Petitioner's Motion has been pending, it is appropriate to deny the motion without prejudice with leave for Petitioner to re-file his motion, serving a copy on Respondents as required by Fed.R.Civ.P. 5(a) and (b) and D.C.COLO.LCivR 5.1F. Accordingly it is
Petitioner claims the Magistrate Judge "assumed" Respondents' counsel wasn't served because counsel did not respond to the Motion. Motion, at 1 ¶ 3. The Court finds no language in the Recommendation indicating the Magistrate Judge made this assumption.
ORDERED that Petitioner's objections to the Recommendation are overruled. It is
FURTHER ORDERED that the Recommendation of the Magistrate Judge (Doc. No. 103; Dec. 12, 2007) is accepted and adopted. It is
FURTHER ORDERED that Petitioner's Motion For Relief Under Rule 60 F.R.C.P. (60-b) (Doc. No. 99; Jun. 25, 2007) is denied without prejudice.