Briones et al v. JNS Construction Services, LLC et al

Filing 108

ORDER adopting Report and Recommendations re 106 Report and Recommendations. Having entered this judgment, the parties are directed to show cause, by written response filed with this Court within 20 days of the date of this Order, why this court should not dismiss Plaintiffs' claims against all Defendants with prejudice and conclude this litigation by Judge David M. Ebel on 04/03/09.(jjh, )

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I N THE UNITED STATES DISTRICT COURT F O R THE DISTRICT OF COLORADO C i v i l Action No. 08-cv-00461-DME-CBS: M A R I O FACUNDO BORREGO BRIONES, JESUS ALBERTO MARINES C A R R E O N , RAUL RIOS SOLIS, PABLO PACHECO DEL REAL, ANTONIO R O D A R T E GARAMENDI, ERNESTO ALVAREZ SALINAS, JUAN GABRIEL A L E J A N D R O RAMIREZ, MANUEL MIJANGOS, JOSE LUIS RUBIO C H A V A R R I A , JOSE JESUS VALTIERRA MONTOYA, NICOLAS HERNANDEZ H E R N A N D E Z , JULIAN FERIA ACOSTA, ROBERTO CARLOS BERNAL C H A V E Z , JESUS GERARDO CUETO LOPEZ, AURELIO CARILLO H E R N A N D E Z , MARTIN OLIVA PONCE, GABRIEL MARTINEZ PONCE, A N T O N I O CARILLO HERNANDEZ, SILVANO GARCIA VEGA, CHRISTIAN O S U N A RAMOS, LEOPOLDO ZARCA GONZALEZ, LUIS MATA LOPEZ, JOSE P A Z AGUIRRE HERNANDEZ, PEDRO VARGAS LEDESMA, ANGEL GEOVANNI D U R A N NAVARRO, PABLO SANCHEZ REYES, RICARDO ROJO C O V A R R U B I A S , JORGE ROJO COVARRUBIAS, JUAN SARABIA MENDEZ, P A B L O LUNA TORRES, MARTIN ALEJANDRE HERNANDEZ, JUAN GERARDO A L V A R A D O GATICA, MIGUEL ANGEL BELTRAN ACEVEDO, JOSE DE JESUS G O M E Z GALVAN, MARTIN BARRON VERA, DAVID GUDINO CHAVARRIA, G E R M A N MARTINEZ HERNANDEZ, JOEL AGUILAR TORRES, ARMANDO O R T I Z RUBIO, CALIXTRO OVANDO LIMA, RODOLFO DELGADO RODRIGUEZ, R A M O N RODRIGUEZ ARAGUZ, ARTEMIO GARCIA MELO, ANTONIO M O N C A D A RICO, MIGUEL ANGEL CASTANDEDA MARTINEZ, ORACIO R A M I R E Z MARTINEZ, LINDOLFO MARTINEZ CASTRO, RAMIRO AVALOS C A M A C H O , MARTIN JAIME DURAN MARIN, DANIEL HECTOR DAVILA M A R T I N E Z , ANSELMO BARRIOS VALDEZ, LUIS ALBERTO DAMIAN ARROYO, F R A N C I S C O NEGRETE CAMACHO, JUAN LUCIANO ORTIZ DUARTE, DANIEL M O R E N O VERA, JORGE FLORES BALTAZAR, MARION ARMANDO FLORES B A L T A Z A R , EDGAR ESTEBAN RODRIGUEZ HERNANDEZ, PABLO CESAR A G U I L A R DIAZ, ALEJANDRO ZUNIGA, SANTIAGO MENDOZA RAMIREZ, F E D E R I C O GONZALEZ CHANTACA, FERMIN RIVERA GUZMAN, MIGUEL A N G E L GUZMAN ESCOGIDO, RODRIGO HERNANDEZ CAHUICH, VICTOR D A N I E L BARRIOS RANGEL, DAVID ARENAS MUNIZ, RICARDO GONZALEZ M I R A N D A , and MIDWEST DRYWALL COMPANY, INC., Plaintiffs, v. J N S CONSTRUCTION SERVICES, LLC, JOHN HERZER, LENO & COMPANY, L L C , LENO ASEUDO, also known as Leno Acevedo, 1 Defendants. O R D E R ADOPTING MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION I n this action, Plaintiffs--sixty-eight Mexican citizens who sought to work i n the United States after obtaining temporary work visas, and a Kansas drywall c o m p a n y -- s e e k to recover from Defendants expenses the individual Plaintiffs i n c u r r e d in obtaining their visas and travelling to Colorado for work promised t h e m by Defendants. Plaintiffs allege that Defendants did not fulfill those p r o m i s e s of employment. The parties have entered into a written confidential settlement agreement, w h i c h has been filed with this Court under seal. (Doc. 90.) The parties do not c h a l l e n g e the existence or substance of that agreement. This matter now comes before the Court on Plaintiffs' "Motion to Enforce t h e Settlement Agreement and for Other Relief." (Doc. 83.) In a report and r e c o m m e n d a t i o n dated March 3, 2009, the Magistrate Judge recommends g r a n t i n g this motion "to the extent that the stipulated amount set forth at page 3, p a r a g r a p h 2 of the settlement agreement (doc. #90 [under seal]) be reduced to a judgment in favor of all Plaintiffs and against all Defendants." (Doc. 106 at 5.) T h e report further recommends rejecting Plaintiffs' request for an award of a t t o r n e y s ' fees based upon Plaintiffs' allegations that Defendants have acted in b a d faith by failing to comply with the terms of the settlement agreement. The Magistrate Judge's report and recommendation notified all parties 2 t h a t they had ten days after the date they were served with that report to file any o b j e c t i o n s they might have. Despite this notice, none of the parties have filed a n y objections to the March 3 report and recommendation. T h i s Court "is accorded considerable discretion with respect to the t r e a t m e n t of unchallenged magistrate reports. In the absence of timely o b j e c t i o n , the district court may review a magistrate's report under any standard i t deems appropriate." Summers v. State of Utah, 927 F.2d 1165, 1167 (10th C i r . 1991); see also Thomas v. Arn, 474 U.S. 140, 149 (1985) (noting 28 U.S.C. § 636(b)(1)(C) "does not on its face require any review at all, by either the d i s t r i c t court or the court of appeals, of any issue that is not the subject of an objection"). Although not required to do so, the Court has reviewed the Magistrate J u d g e ' s report and recommendation to insure that there is no "clear error on the f a c e of the record." Strepka v. Sailors, 494 F. Supp.2d 1209, 1215 (D. Colo. 2 0 0 7 ) . Finding no such error, the Court AFFIRMS and ADOPTS in full the M a g i s t r a t e Judge's report and recommendation dated March 3, 2009. (Doc. 106.) Judgment is, therefore, entered in favor of all Plaintiffs against all D e f e n d a n t s as stipulated by the parties in their settlement agreement: D e f e n d a n t s are jointly and severally obligated "to pay Plaintiffs a total sum of F i f t y Four Thousand Four Hundred Dollars ($54,400.00), which equals $800.00 t o each of the sixty-eight individual Plaintiffs and $0.00 to Plaintiff Midwest D r y w a l l Co." (Doc. 90 at 3.) Defendants shall "make this payment . . . in a lump 3 s u m to individual Plaintiffs' counsel, Donald J. Kaufman," who will distribute it to t h e individual Plaintiffs. Having entered this judgment, the parties are directed to show cause, by w r i t t e n response filed with this Court within twenty days of the date of this order, w h y this Court should not dismiss Plaintiffs' claims against all Defendants with p r e j u d i c e and conclude this litigation. Dated: April 3, 2009 BY THE COURT: s / David M. Ebel UNITED STATES CIRCUIT JUDGE 4

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