Opinion
Civil Action 1:20-cv-00099-DDD-STV
02-25-2022
MARTIN J. FLANNERY, Plaintiff, v. BOXER F2 L.P., Defendant.
ORDER ADOPTING RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Daniel D. Domenico, Judge
Before the Court is the recommendation of United States Magistrate Judge Scott T. Varholak that the Court enter judgment in favor of Defendant Boxer F2 L.P. (Doc. 111.) The recommendation states that objections to the recommendation must be filed within fourteen days after its service on the parties. (Doc. 111 at 19 (citing Fed.R.Civ.P. 72(b).) The recommendation was served on January 27, 2022, and no party has objected to it.
The report and recommendation is dated on January 27, 2022. However, the text entry on the docket shows that it was entered on January 28, 2022. (Doc. 111.) Even using the January 28, 2022, no party objected within 14-days or at all.
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. The Court agrees with Judge Varholak's determination that Mr. Flannery failed to show good cause to amend his complaint and an amendment would cause undue delay and prejudice. (Doc. 111 at 3-7.) The Court also agrees with Judge Varholak's determinations that Mr. Flannery failed to file his action within the applicable statute of limitations and equitable tolling is inapplicable in these circumstances. (Id. at 11-19.) Using the Fair Labor Standards Act three-year statute of limitations and December 28, 2019 as the relevant commencement date, the disputed payments from August 5, 2016 to December 23, 2016 are time barred. (Id. at 13-15.) Mr. Flannery's January 6, 2017 paycheck is also time barred because Mr. Flannery did not commence the action until January 13, 2020-the date reflected by the file stamp from the Clerk on the complaint. (Id. at 17.)
CONCLUSION
The Recommendation of United States Magistrate Judge (Doc. 111) is ACCEPTED and ADOPTED. Plaintiffs Motion for Permission to Amend the Complaint (Doc. 99) is DENIED. Defendant's First Motion for Partial Summary Judgment (Doc. 78) is GRANTED. Defendant's Second Motion for Partial Summary Judgment (Doc. 88) is GRANTED. Judgment is entered in favor of Defendant.