Opinion
Civil Action No. 19-cv-01199-CMA-STV
08-03-2020
AMANDA KENNEDY, on behalf of herself and those similarly situated, Plaintiff, v. MOUNTAINSIDE PIZZA, INC., PRIMA PIZZA, INC., LONGHORN PIZZA, INC., BRENT HAMILL, and SOUTHSIDE PIZZA, INC., Defendants.
ORDER AFFIRMING AND ADOPTING RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
This matter is before the Court on the May 15, 2020 Recommendation of United States Magistrate Judge ("the Recommendation") (Doc. # 92) by United States Magistrate Judge Scott T. Varholak, wherein Judge Varholak recommends that this Court grant in part and deny in part Defendants' Motion to Dismiss ("the Motion") (Doc. # 42), filed by Defendants Prima Pizza, Inc., Longhorn Pizza, Inc., and Southside Pizza, Inc. ("Moving Defendants"). Specifically, Judge Varholak recommends that the Motion be granted to the extent it seeks dismissal of Plaintiff's claims against Moving Defendants for lack of personal jurisdiction and that the Motion be denied to the extent it seeks to have William Benge's Notice of Consent to Join FLSA Action (Doc. # 38) stricken. The Recommendation is incorporated herein by reference. See 28 U.S.C. § 636(b)(1)(B); Fed. R. Civ. P. 72(b).
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. # 92 at 24-25.) Despite this advisement, no objection to Magistrate Judge Varholak's Recommendation has been filed.
"[T]he district court is accorded considerable discretion with respect to the treatment of unchallenged magistrate reports. In the absence of timely objection, the district court may review a magistrate [judge's] 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's factual or legal conclusions, under a de novo or any other standard, when neither party objects to those findings.")).
After reviewing the Recommendation of Magistrate Judge Varholak, in addition to applicable portions of the record and relevant legal authority, the Court is satisfied that the Recommendation is sound and not clearly erroneous or contrary to law. See Fed. R. Civ. P. 72(a). Accordingly, the Court ORDERS that the Recommendation of United States Magistrate Judge (Doc. # 92) is AFFIRMED and ADOPTED as an Order of this Court. It is
FURTHER ORDERED that Defendants' Motion to Dismiss (Doc. # 42) is GRANTED IN PART and DENIED IN PART as follows:
• the Motion is GRANTED to the extent it seeks dismissal of Plaintiff's claims
against Moving Defendants for lack of personal jurisdiction;
• accordingly, the claims against Defendants Prima Pizza, Inc., Longhorn Pizza, Inc., and Southside Pizza, Inc. are DISMISSED WITHOUT PREJUDICE;
• the caption on all subsequent filings shall reflect the removal of Prima Pizza, Inc., Longhorn Pizza, Inc., and Southside Pizza, Inc. as defendants in this case;
• Plaintiff's claims against Defendants Mountainside Pizza, Inc. and Brent Hamill pursuant to the Fair Labor Standards Act and Colo. Rev. Stat. §§ 8-4-101, et seq., and 8-6-101, et seq., remain; and
• the Motion is DENIED to the extent it seeks to have Mr. Benge's Consent to Join FLSA Action stricken.
DATED: August 3, 2020
BY THE COURT:
/s/_________
CHRISTINE M. ARGUELLO
United States District Judge