Opinion
Civil Action No. 12-cv-02065-WJM-KLM
04-09-2013
THOMAS ROBERTS, Plaintiff, v. DEUTSCH BANK AG, PHILIP GORDON, and ARA BALIKIAN Defendants.
Judge William J. Martínez
ORDER ADOPTING IN PART MAGISTRATE JUDGE'S RECOMMENDATION AND
DISMISSING PLAINTIFF'S CLAIMS WITHOUT PREJUDICE
This matter is before the Court on the March 30, 2013 Recommendation of United States Magistrate Kristen L. Mix (the "Recommendation") (ECF No. 42) that Plaintiff's case be dismissed with prejudice for failure to prosecute pursuant to Fed. R. Civ. P. 41(b) and failure to comply with D.C.COLO.LCivR 16.1. 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. 42, at 8.) Despite this advisement, no objections to the Magistrate Judge's Recommendation have to date been filed.
The Court concludes that the Magistrate Judge'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."). While the Court agrees with Magistrate Judge's analysis, it disagrees with the recommendation that Plaintiff's claims be dismissed with prejudice. Because this case is dismissed at the early stages of the litigation and there is no indication that Plaintiff's failure to prosecute was in bad faith, the Court will dismiss Plaintiff's claims without prejudice. See The Procter & Gamble Co. v. Haugen, 427 F.3d 727, 738 (10th Cir. 2005) (dismissal with prejudice "should be used as a weapon of last, rather than first, resort" and only in cases in which there is some "willfulness, bad faith or fault" on the part of the party to be sanctioned).
In accordance with the foregoing, the Court ORDERS as follows: (1) The Magistrate Judge's Recommendation (ECF No. 42) is ADOPTED IN PART; (2) The above-captioned matter is DISMISSED WITHOUT PREJUDICE pursuant to Fed. R. Civ. P. 41(b) based on Plaintiff's failure to prosecute; (3) The Motions to Dismiss (ECF Nos. 16, 22, and 40) are DENIED as MOOT; and (4) The Clerk shall close the case. Each party shall bear his or its own costs.
BY THE COURT:
________________________
William J. Martínez
United States District Judge