Opinion
Civil Action No. 06-cv-02434-WDM-MJW.
April 6, 2007
ORDER ON RECOMMENDATION OF MAGISTRATE JUDGE
This matter is before me on the recommendation of Magistrate Judge Michael J. Watanabe, issued March 9, 2007, that (1) this case be dismissed as a sanction for failure to prosecute and failure to comply with court orders, (2) Defendant's motion to dismiss be denied as moot, (3) Defendant's motion to strike be granted, and (4) the purported "Default Judgment" filed by Plaintiff Ronald Roy (Roy) be stricken. Roy failed to file a timely objection to this recommendation and therefore is not entitled to de novo review. 28 U.S.C. § 636(b).
Having reviewed the pertinent portions of the record in this case, I agree with Magistrate Judge Watanabe that this case should be dismissed pursuant to Fed.R.Civ.P. 16(f) and 41(b) for failure to prosecute and non-compliance with court orders. However, since the recommendation does not indicate that Magistrate Judge Watanabe considered the factors set out in Ehrenhaus v. Reynolds, 965 F.2d 916, 920-21 (10th Cir. 1992), dismissal will be without prejudice.
Correspondingly, I agree that Defendant's motion to dismiss should be denied as moot. And finally, I agree that it is appropriate to strike the document filed by Roy that purports to enter default judgment in his own favor.
Accordingly, it is ordered:
1. The recommendation of Magistrate Judge Watanabe, issued March 9, 2007 (Docket No. 30), is accepted as discussed above. 2. Defendant's motion to dismiss, filed January 11, 2007 (Docket No. 11), is denied as moot. 3. Defendant's motion to strike, filed January 11, 2007 (Docket No. 11), is granted. 4. Plaintiff's "Default Judgment," filed January 5, 2007 (Docket No. 10), is stricken. 5. This case is dismissed without prejudice. 6. Defendant may have his costs.