Opinion
Civil Action No. 10-cv-02664-WYD-MEH
11-28-2011
THEOJO DAVIS, Plaintiff, v. DELTA CHAMBER OF COMMERCE, Defendant.
Chief Judge Wiley Y. Daniel
ORDER AFFIRMING AND ADOPTING RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
THIS MATTER is before the Court in connection with Defendant's Motion to Dismiss with Prejudice [ECF No. 19], filed May 17, 2011 and Defendant's Renewed Motion to Dismiss with Prejudice [ECF No. 33], filed September 29, 2011. Defendant's motions were referred to United States Magistrate Judge Hegarty for a recommendation by Order of Reference dated November 4, 2010 [ECF No. 6] and the Memoranda dated September 9, 2011 [ECF No. 24] and October 3, 2011 [ECF No. 34] respectively. Magistrate Judge Hegarty issued a Recommendation on October 24, 2011 [ECF No. 37]. The Recommendation is incorporated herein by reference. See 28 U.S.C. § 636(b)(1)(B), Fed. R. Civ. P. 72(b), D.C.COLO.LR. 72.1.
Magistrate Judge Hegarty recommends therein that Defendant's Renewed Motion to Dismiss with Prejudice be granted and that the initial Motion be denied as moot for Plaintiff's failure to prosecute this action. Specifically, Magistrate Judge Hegarty finds that Plaintiff has failed to participate in the litigation, to respond to discovery requests and to comply with the Court's orders compelling discovery and for sanctions. (Recommendation at 5-6). He further finds that this behavior has caused the Defendant prejudice, interfered with the judicial process and that Plaintiff has failed to provide a justification for her failure to respond to Court orders or to participate in the litigation. Id. Based on these finding, Magistrate Judge Hegarty finds, "no sanction less than dismissal with prejudice would be effective here...[as] Plaintiff has essentially abandoned the litigation [and] no monetary sanction would be practical." Id. at 6.
Magistrate Judge Hegarty advised the parties that written objections were due within fourteen (14) days after service of a copy of the Recommendation. (Recommendation at 1 n. 1.). Despite this advisement, no objections were filed to the Recommendation. No objections having been filed, I am vested with discretion to review the Recommendation "under any standard [I] deem[] appropriate." Summers v. Utah, 927 F.2d 1165, 1167 (10th Cir. 1991); see also Thomas v. Arn, 474 U.S. 140, 150 (1985) (stating that "[i]t does not appear that Congress intended to require district court review of a magistrate's factual or legal conclusions, under a de novo or any other standard, when neither party objects to those findings"). Nonetheless, though not required to do so, I review the Recommendation to "satisfy [my]self that there is no clear error on the face of the record." See FED. R. CIV. P. 72(b) Advisory Committee Notes.
Note, this standard of review is something less than a "clearly erroneous or contrary to law" standard of review, FED. R. CIV. P. 72(a), which in turn is less than a de novo review, FED. R. CIV. P. 72(b).
Having reviewed the Recommendation, I am satisfied that there is no clear error on the face of the record. I find that Magistrate Judge Hegarty's Recommendation is thorough, well-reasoned and sound. I agree with Magistrate Judge Hegarty that Defendant's Renewed Motion to Dismiss with Prejudice [ECF No. 33], filed September 29, 2011, should be granted and that Defendant's initial Motion to Dismiss with Prejudice [ECF No. 19], filed May 17, 2011, be denied as moot for the reasons stated in both the Recommendation and this Order. Based on the foregoing, it is
ORDERED that the Recommendation of United States Magistrate Judge Hegarty [ECF No. 37], filed October 24, 2011, is AFFIRMED and ADOPTED. In accordance therewith, it is
FURTHER ORDERED that Defendant's Renewed Motion to Dismiss with Prejudice [ECF No. 33], filed September 29, 2011, be GRANTED and that Defendant's initial Motion to Dismiss with Prejudice [ECF No. 19], filed May 17, 2011, be DENIED AS MOOT. Accordingly, this case is dismissed with prejudice.
BY THE COURT:
WILEY Y. DANIEL,
CHIEF UNITED STATES DISTRICT JUDGE