Opinion
Civil Action 22-cv-00167-CMA-STV
11-24-2023
LAQUITA JONES, LATEESHA PROCTOR, PATRICK SMITH, and BEN MCCOLLUM, Plaintiffs, v. >DISH NETWORK CORPORATION, THE BOARD OF DIRECTORS OF DISH NETWORK CORPORATION, and RETIREMENT PLAN COMMITTEE OF DISH NETWORK CORPORATION, Defendants.
ORDER AFFIRMING AND ADOPTING NOVEMBER 6, 2023 RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
CHRISTINE M. ARGUELLO SENIOR UNITED STATES DISTRICT JUDGE
This matter is before the Court on the November 6, 2023 Recommendation (Doc. # 106) of United States Magistrate Judge Scott T. Varholak, wherein he recommends granting in part and denying in part Defendants' Motion to Dismiss Plaintiffs' Amended Class Action Complaint (Doc. # 84). Specifically, Judge Varholak recommends dismissing Plaintiffs' Claim 1 with prejudice and denying the remainder of Defendants' Motion to Dismiss. The Court affirms and adopts the Recommendation for the following reasons.
This Court has “considerable discretion with respect to the treatment of unchallenged magistrate [judge] reports. In the absence of timely objection, the district court may review [said] report 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 (1985) (stating that “[i]t does not appear that Congress intended to require district court review of a [magistrate judge's] factual or legal conclusions, under a de novo or any other standard, when neither party objects to those findings”)). The Recommendation advised the parties that specific written objections were due within fourteen (14) days after being served with a copy of the Recommendation. (Doc. # 106 at 26 n.7.) Neither party has filed any objection, and the time to do so has since expired.
Having reviewed the Recommendation, the relevant portions of the record, and applicable legal authorities, the Court is satisfied that the Recommendation is sound and not clearly erroneous or contrary to law. See generally Fed.R.Civ.P. 72(a).
The Recommendation does not explain why it calls for dismissal with prejudice, but this Court nonetheless agrees that dismissal with prejudice is appropriate. The Court has previously explained to Plaintiffs that Claim 1 fails to state a claim without allegations that “Defendants' actions were for the purpose of benefitting themselves or anyone else.” (Doc. # 72 at 35); (Doc. # 79 at 21); (Doc. # 106 at 25). Yet, despite an opportunity to amend, Plaintiffs' Amended Class Complaint,makes no changes to Claim 1's allegations. Compare (Doc. # 1 at ¶¶ 104-08), with (Doc. # 80 at ¶¶ 71-75). Moreover, Plaintiffs neither requested leave to amend again nor objected to the Recommendation. See (Doc. # 93 at 30); cf. Mcdaniel v. N. Range Crossings & Dominium Mgmt. LLC, Civ. Action No. 21-cv-01997, 2023 WL 4872412, at *1 n.1 (D. Colo. Feb. 24, 2023) (unreported) (justifying dismissal with prejudice because plaintiffs forewent multiple opportunities to cure their deficient pleadings); Campos v. State Farm Mut. Auto. Ins. Co., Civ. No. 21-cv-02777, 2022 WL 2702849, at *1 n.1 (D. Colo. July 12, 2022) (unreported) (same).
Consequently, the Court ORDERS as follows:
• The November 6, 2023 Recommendation of the United States Magistrate Judge (Doc. # 106) is AFFIRMED and ADOPTED as an order of this Court;
• Defendants' Motion to Dismiss Plaintiffs' Amended Class Action Complaint (Doc. # 84) is GRANTED IN PART and DENIED IN PART.
• The Motion is GRANTED as to Claim 1 against all Defendants.
• The Motion is DENIED in all other respects. Consequently, • Plaintiffs' Claim 1 is DISMISSED WITH PREJUDICE.