Opinion
Civil Action No. 19-cv-01135-RM-NYW
09-09-2019
BRIAN WILLIAM WALLACE, Plaintiff, v. TRANS UNION, LLC, and EQUIFAX, INC., Defendants.
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
This matter comes before this court for recommendation on Plaintiff Brian William Wallace's ("Plaintiff" or "Mr. Wallace") "Brian of the Family Wallace Motions and Orders this Court to Dismiss Case no. 1:19-cv-01135-RM-NYW Without Prejudice" ("Plaintiff's Motion to Dismiss"), filed August 14, 2019, [#45]. The undersigned considers the Motion pursuant to 28 U.S.C. § 636(b), Rule 72 of the Federal Rules of Civil Procedure, and the Memorandum dated August 15, 2019. Accordingly, having reviewed the Motion, I respectfully RECOMMEND that the Motion to Dismiss be GRANTED IN PART AND DENIED IN PART.
BACKGROUND
This court has discussed the background of this matter in its Recommendation, see [#47], and therefore discusses only the most salient facts to the instant Motion to Dismiss. Plaintiff filed his pro se Complaint against Defendants Trans Union, LLC and Equifax, Inc. (collectively, "Defendants") in the Denver County District Court on or about April 2, 2019. See [#3]. In his Complaint, Mr. Wallace asserts class and individual claims against Defendants for alleged violations of the Fair Credit Reporting Act ("FCRA"), 15 U.S.C. § 1681 et seq. For this reason, Defendants removed this matter to this District pursuant to 28 U.S.C. § 1331 on April 18, 2019. See [#1].
Mr. Wallace also named Experian Information Solutions as a Defendant but stipulated to dismissal with prejudice as to the claims against Experian [#29], and the court dismissed Experian with prejudice. [#34].
On April 25, 2019, Defendants moved to dismiss or strike Mr. Wallace's purported class action claim on the basis that a pro se plaintiff may not represent a potential class of plaintiffs. [#18 at 3; #33 at 2]. Defendants also filed Partial Answers as to Plaintiff's individual claim. See [#19; #20]. On August 14, 2019, Plaintiff filed the instant Motion to Dismiss. See [#45]. Because briefing had not been completed on Plaintiff's Motion to Dismiss, the undersigned issued a Recommendation to grant Defendants' Motion to Dismiss as to Plaintiff's class claim, and noted that it would address Plaintiff's Motion to Dismiss by separate Recommendation. See [#47]. Defendants have not responded to Plaintiff's Motion to Dismiss and the time to do so has since expired. Thus, the court proceeds with a Recommendation on Plaintiff's Motion to Dismiss currently. See D.C.COLO.LCivR 7.1(d).
Had Defendants not filed Partial Answers [#19, #20], Plaintiff's Motion to Dismiss would have been self-executing and this court would have been immediately stripped of jurisdiction over the merits pursuant to Fed. R. Civ. P. 41(a)(1)(A)(i), including Defendants' Motion to Dismiss. De Leon v. Marcos, 659 F.3d 1276, 1283 (10th Cir. 2011). Given the Partial Answers, this court proceeded to consider the merits of Defendants' Motion to Dismiss. [#47].
ANALYSIS
Plaintiff moves the court to dismiss this action because he is "donating his time to his favorite charity and will not be able to continue this case." [#45 at ¶ 6]. He requests that dismissal be without prejudice, that the court "waive all Pacer fees," and that the Parties "go in peace." [Id. at ¶ 9].
Because Defendants filed Partial Answers as to Plaintiff's individual claim, Rule 41(a)(2) of the Federal Rules of Civil Procedure provides, "an action may be dismissed at the plaintiff's request only by court order, on terms that the court considers proper." Fed. R. Civ. P. 41(a)(2). Though Plaintiff's Motion to Dismiss does not contain a certificate of conferral and Defendants have not joined the Motion (thereby rendering dismissal self-effectuating under Rule 41(a)(1)(A)(ii)), this court construes the Motion as unopposed given the lack of objection by Defendants in the time provided by this District's Local Rules of Civil Practice and the Federal Rules of Civil Procedure. Augustine v. Exec. in Charge I.R.S., No. CIV.A. 06-cv-02514-MS[K], 2007 WL 247719, at *1 n.1 (D. Colo. Jan. 26, 2007). For this reason, the court believes dismissal without prejudice is appropriate under the circumstances.
As to Mr. Wallace's request that the court "waive all Pacer fees," both past and present, this court respectfully RECOMMENDS that his request that all PACER fees be DENIED, particularly given Plaintiff's pattern of litigation conduct spanning from 2011 to the present in this District. See Ex. 1 (List of cases filed by Plaintiff as Brian William Wallace and Brian Edmond Bath).
CONCLUSION
For the reasons stated herein, this court respectfully RECOMMENDS that:
(1) Plaintiff's Motion to Dismiss [#45] be GRANTED IN PART and DENIED IN PART insofar as Plaintiff seeks waiver of PACER fees past and present; andDATED: September 9, 2019
(2) This civil action be DISMISSED without prejudice.
Within fourteen days after service of a copy of the Recommendation, any party may serve and file written objections to the Magistrate Judge's proposed findings and recommendations with the Clerk of the United States District Court for the District of Colorado. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); In re Griego, 64 F.3d 580, 583 (10th Cir. 1995). A general objection that does not put the District Court on notice of the basis for the objection will not preserve the objection for de novo review. "[A] party's objections to the magistrate judge's report and recommendation must be both timely and specific to preserve an issue for de novo review by the district court or for appellate review." United States v. One Parcel of Real Property Known As 2121 East 30th Street, Tulsa, Oklahoma, 73 F.3d 1057, 1060 (10th Cir. 1996). Failure to make timely objections may bar de novo review by the District Judge of the Magistrate Judge's proposed findings and recommendations and will result in a waiver of the right to appeal from a judgment of the district court based on the proposed findings and recommendations of the magistrate judge. See Vega v. Suthers, 195 F.3d 573, 579-80 (10th Cir. 1999) (District Court's decision to review a Magistrate Judge's recommendation de novo despite the lack of an objection does not preclude application of the "firm waiver rule"); International Surplus Lines Insurance Co. v. Wyoming Coal Refining Systems, Inc., 52 F.3d 901, 904 (10th Cir. 1995) (by failing to object to certain portions of the Magistrate Judge's order, cross-claimant had waived its right to appeal those portions of the ruling); Ayala v. United States, 980 F.2d 1342, 1352 (10th Cir. 1992) (by their failure to file objections, plaintiffs waived their right to appeal the Magistrate Judge's ruling). But see Morales-Fernandez v. INS, 418 F.3d 1116, 1122 (10th Cir. 2005) (firm waiver rule does not apply when the interests of justice require review). --------
BY THE COURT:
/s/_________
Nina Y. Wang
United States Magistrate Judge