Opinion
Civil Action 20-cv-01827-RM-NRN
08-11-2021
HARLIE W. LOESBY, Plaintiff, v. JENNIFER W. FISCHER, Esq., LISA C. SECOR, Esq., RONNIE FISCHER, Esq., and FISCHER & FISCHER, P.C., a Colorado Corporation, Defendants.
ORDER
RAYMOND P. MOORE United States District Judge.
This matter is before the Court on the July 1, 2021 Report and Recommendation of United States Magistrate Judge N. Reid Neureiter (the “Recommendation”) (ECF No. 90) to grant Defendants' Amended Motion to Dismiss the Second Amended Complaint Pursuant to Fed.R.Civ.P. 12(b)(6) and (1) (ECF No. 51) and dismiss this entire action without prejudice. Specifically, the Magistrate Judge recommended (1) dismissing the federal claims without prejudice and (2) declining to exercise supplemental jurisdiction over the state law claims and, therefore, also dismissing the state law claims without prejudice. 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 days after being served with a copy of the Recommendation. (ECF No. 90 at page 14.) Despite this advisement, no objections to the Recommendation have to date been filed by any party and the time to do so has expired. (See generally Dkt.)
The Court concludes that Magistrate Judge Neureiter's analysis was thorough and sound, and that there is no clear error on the face of the record. See Fed. R. Civ. P. 72(b) advisory committee's note (“When no timely objection is filed, the court need only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.”); see also Summers v. Utah, 927 F.2d 1165, 1167 (10th Cir. 1991) (“In the absence of timely objection, the district court may review a magistrate's report under any standard it deems appropriate.”). The Recommendation is, therefore, accepted and adopted as an order of this Court.
The Magistrate Judge recommended dismissing the Title III American with Disabilities Act claim as moot and the Section 504 of the Rehabilitation Act of 1973 claim for failure to state a claim, under Rule 12(b)(1) and (b)(6), respectively. “[O]rdinarily the dismissal of a pro se claim under Rule 12(b)(6) should be without prejudice.” Ghailani v. Sessions, 859 F.3d 1295, 1304 (10th Cir. 2017).
In accordance with the foregoing, the Court:
(1) ACCEPTS and ADOPTS the Report and Recommendation of the Magistrate Judge (ECF No. 90) in its entirety;
(2) GRANTS Defendants' Amended Motion to Dismiss (ECF No. 51);
(3) DISMISSES WITHOUT PREJUDICE Plaintiff's ADA claim under Title II and Rehabilitation Claim;
(4) Pursuant to 28 U.S.C. § 1367(c), declines to exercise supplemental jurisdiction over Plaintiff's state law claims and dismisses the state law claims WITHOUT PREJUDICE;
(5) DIRECTS the Clerk to enter JUDGMENT in favor of Defendants and against Plaintiff on the federal claims; and
(6) DIRECTS the Clerk to close this case.