Opinion
Civil Case No. 11-cv-02421-REB-MJW
06-08-2012
ALEMAYEHU GETACHEW, Plaintiff, v. 7-ELEVEN, INC., Defendant.
Judge Robert E. Blackburn
ORDER RE: RECOMMENDATIONS OF
THE UNITED STATES MAGISTRATE JUDGE
Blackburn, J.
The matters before me are the recommendations contained in the magistrate judge's Order on Plaintiff's Motions Amending His Complaint (Docket Nos. 40 and 41) and Recommendations on Defendant 7-Eleven, Inc.'s Motion To Dismiss (Docket No. 10) and Plaintiff's Motion for Judgment Against Defendant 7-Eleven (Docket No. 23) [#52] filed April 27, 2012. I adopt the recommendation regarding plaintiff's motion for judgment against defendant, but respectfully reject the recommendation to deny defendant's motion to dismiss as moot in light of more recent developments in the case.
"[#52]" is an example of the convention I use to identify the docket number assigned to a specific paper by the court's electronic case filing and management system (CM/ECF). I use this convention throughout this order.
Plaintiff is proceeding pro se. Accordingly, and appropriately, the magistrate judge construed his pleadings more liberally and held them to a less stringent standard than formal pleadings drafted by lawyers, as have I. See Erickson v. Pardus, 551 U.S. 89, 94, 127 S. Ct. 2197, 2200, 167 L.Ed.2d 1081 (2007); Andrews v. Heaton, 483 F.3d 1070, 1076 (10th Cir. 2007); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991) (citing Haines v. Kerner, 404 U.S. 519, 520-21, 92 S.Ct. 594, 595-96, 30 L.Ed.2d 652 (1972)). However, a litigant's pro se status does not excuse him from complying in all particulars with the Federal Rules of Civil Procedure, the Local Rules of this District, and of course, all duly issued orders of the court. Nielsen v. Price, 17 F.3d 1276, 1277 (10th Cir. 1994); Carrillo v. Castle, Stawiarki, LLC, 2012 WL 12809 at*2 (D. Colo. Jan. 4, 2012). Nevertheless, and despite plaintiff's pro se status, where no objections have been filed to the recommendation, as here, I review it only for plain error. See Morales-Fernandez v. Immigration & Naturalization Service, 418 F.3d 1116, 1122 (10th Cir. 2005).
The magistrate judge recommends that Defendant 7-Eleven, Inc.'s Motion To Dismiss and Memorandum in Support [#10] filed October 18, 2011, be denied as moot in light of his contemporaneous order granting plaintiff's motions to amend his complaint to add parties and a request for a jury trial. Plaintiff was ordered to file his amended complaint on or before May 11, 2012. When no such amended pleading was filed by the deadline, the magistrate judge issued an Order To Show Cause [#54] filed May 22, 2012, directing plaintiff to show why the case should not be dismissed for failure to comply with the court's directive. Plaintiff filed an untimely response to the show cause order, indicating that "[a]t this time [he] is not interested to amend." (Plaintiff's Answer to "Order To Show" Filed on May 22, 2012 [#55], filed June 4, 2012.)
The magistrate judge has not yet had opportunity to resolve the issues implicated by the plaintiff's answer to the show cause order.
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Given plaintiff's obvious change of heart concerning his desire to amend his complaint, the reasons underlying the magistrate judge's recommendation to deny defendant's motion to dismiss without prejudice have evanesced. I therefore will reject that recommendation and re-refer the motion to the magistrate judge for further recommendation. However, finding no plain error in the magistrate judge's recommended disposition of plaintiff's motion for judgment, I find and conclude that the recommendation as to that motion should be approved and adopted.
THEREFORE, IT IS ORDERED as follows:
1. That the recommendations contained in the magistrate judge's Order on Plaintiff's Motions Amending His Complaint (Docket Nos. 40 and 41) and Recommendations on Defendant 7-Eleven, Inc.'s Motion To Dismiss (Docket No. 10) and Plaintiff's Motion for Judgment Against Defendant 7-Eleven (Docket No. 23) [#52] filed April 27, 2012, are REJECTED IN PART and APPROVED AND ADOPTED IN PART as follows:
a. That the recommendation to deny Defendant 7-Eleven, Inc.'s Motion To Dismiss and Memorandum in Support [#10], filed October 18, 2011, is respectfully REJECTED; and
b. that the recommendation to deny Plaintiff's Motion for Judgment Against Defendant 7-Eleven Inc. On Plaintiff's Pleading Filed on
September 14, 2011 [#23], filed November 14, 2011, is APPROVED AND ADOPTED as an order of this court;
2. That Plaintiff's Motion for Judgment Against Defendant 7-Eleven Inc. On Plaintiff's Pleading Filed on September 14, 2011 [#23], filed November 14, 2011, is DENIED; and
3. That Defendant 7-Eleven, Inc.'s Motion To Dismiss and Memorandum in Support [#10], filed October 18, 2011, is RE-REFERRED to the magistrate judge for further recommendation.
Dated June 8, 2012, at Denver, Colorado.
BY THE COURT:
________________
Robert E. Blackburn
United States District Judge