Smith v. Bank of New York et al

Filing 24

ORDER adopting 17 , and 23 Report and Recommendations; That under Fed. R. Civ. P. 4(m), Fed. R. Civ. P. 41(b), and D.C.COLO.LCivR 41.1, the plaintiffs' claims against defendant, Bank of New York, are DISMISSED without prejudice based on the plaintiffs' failure to serve properly this defendant and the plaintiffs' failure to prosecute these claims; finding as moot 20 Motion for Default Judgment; That this case is DISMISSED.Signed by Judge Robert E. Blackburn on 2/5/08.(erv, )

Smith v. Bank of New York et al

Doc. 24

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Judge Robert E. Blackburn Civil Case No. 06-cv-02404-REB-BNB ALTON LAYCE SMITH, and DAVIA LOMAX-SMITH,, Plai nti ffs, v. BANK OF NEW YORK, and MARY WENKE, in her personal and official capacity, Defendants.

ORDER ADOPTING RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE Blackburn, J. This matter is before me on the following: 1) Recommendation of United States Magistrate Judge [#17], filed June 14, 2007; 2) Recommendation of United States Magistrate Judge [#23], filed September 28, 2007; and 3) Motion for Default Judgment Pursuant to F.R.B.P. (sic) 55 [#20], filed June 27, 2007. The Magistrate Judge recommends that the plaintiffs' claims against the defendants be dismissed based on the plaintiffs' failure to prosecute, lack of proper service on certain defendants, and the plaintiffs' failure to comply with an order of the court. The plaintiffs have not filed objections to either recommendation. Therefore, I review the recommendations only for plain error. See Morales-Fernandez v. Immigration &

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Naturalization Service, 418 F.3d 1116, 1122 (10th Cir. 2005).1 Finding no such error, I find and conclude that the magistrate judge's recommendations should be approved and adopted. As described in the Magistrate Judge's September 28, 2007, recommendation [#23], the plaintiffs filed a motion for default judgment against Mary Wenke in her individual capacity. The Clerk of the Court declined to enter default against Wenke because the plaintiffs did not file an affidavit concerning her military status, as required by law. A Clerk's Note [#22] was entered in the record. The plaintiffs have not submitted the required affidavit nor have they taken any other action in this case since they filed their motion for default judgment. THEREFORE, IT IS ORDERED as follows: 1. That the Recommendation of United States Magistrate Judge [#17], filed June 14, 2007, is APPROVED AND ADOPTED as an order of this court; 2. That the Recommendation of United States Magistrate Judge [#23], filed September 28, 2007, is APPROVED AND ADOPTED as an order of this court; 3. That under Fed. R. Civ. P. 4(m), Fed. R. Civ. P. 41(b), and D.C.COLO.LCivR 41.1, the plaintiffs' claims against defendant, Bank of New York, are DISMISSED without prejudice based on the plaintiffs' failure to serve properly this defendant and the plaintiffs' failure to prosecute these claims; 4. That under Fed. R. Civ. P. 4(m), Fed. R. Civ. P. 41(b), and D.C.COLO.LCivR 41.1, the plaintiffs' claims against defendant, Mary Wenke, in her official capacity are

This standard pertains even though plaintiffs are proceeding pro se. Morales-Fernandez, 418 F.3d at 1122.

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DISMISSED without prejudice based on the plaintiffs' failure to serve properly this defendant, and the plaintiffs' failure to prosecute these claims; 5. That under Fed. R. Civ. P. 41(b) and D.C.COLO.LCivR 41.1, the plaintiffs' claims against defendant, Mary Wenke, in her individual capacity are DISMISSED without prejudice based on the plaintiffs' failure to prosecute these claims; 6. That the plaintiffs' Motion for Default Judgment Pursuant to F.R.B.P. (sic) 55 [#20], filed June 27, 2007, is DENIED as moot; and 7. That this case is DISMISSED. Dated February 5, 2008, at Denver, Colorado. BY THE COURT: s/ Robert E. Blackburn Robert E. Blackburn United States District Judge

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