Fox v. California Franchise Tax Board et al

Filing 84

REPORT AND RECOMMENDATION that 55 Plaintiff's MOTION to Amend Complaint and 59 Plaintiff's MOTION to Amend Complaint (#4) (Rule 15(a)) be denied without prejudice, by Magistrate Judge Boyd N. Boland on 9/24/09. (ebs, ) Modified on 10/1/2009 to reactivate motion as the case was closed in error (ebs, ).

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Magistrate Judge Boyd N. Boland Civil Action No. 08-cv-01047-PAB-BNB JEFFREY D. FOX, Plaintiff, v. CALIFORNIA FRANCHISE TAX BOARD, et al., Defendants. ______________________________________________________________________________ RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE ______________________________________________________________________________ This matter arises on two motions filed by the plaintiff (the "Motions"): 1. Motion to Amend Complaint [Doc. #55, filed 02/18/2009], and 2. Motion to Amend Complaint (#4) (Rule 15(a)) [Doc. # 59, filed 02/27/2009]. I respectfully RECOMMEND that the Motions be DENIED. The plaintiff seeks leave to amend his Amended Complaint to add as a defendant the Judicial Council of California and to add claims under California's Information Practices Act of 1977, Cal.Civ.Code § 1798 et seq., and the California Fair Debt Collection Practices Act. He has tendered a proposed second amended complaint [Doc. #67]. Rule 15, Fed.R.Civ.P., provides that a complaint may be amended once as a matter of course if a responsive pleading has not been served. Fed.R.Civ.P. 15(a)(1)(A). Ordinarily, under Rule 15(a) the plaintiff would be permitted to amend his Complaint as of right because a

responsive pleading has not yet been served.1 In this case, however, I have issued three separate recommendations wherein I have recommended dismissal of the claims against defendants County of Orange - California, Board of Supervisors; Thomas G Mauk, CEO - County of Orange, California; John M. W. Moorlach; Patricia C. Bates; Janet Nguyen; Bill Campbell; Chris Norby; SchoolsFirst Federal Credit Union; Lisa Mitchell; Fabiola Guillen; and AllianceOne Receivables Management, Inc. The plaintiff's proposed second amended complaint reasserts the same claims against these defendants. Accordingly, I respectfully recommend that the Motions be denied without prejudice, subject to refiling of a proposed second amended complaint in accordance with the district judge's rulings on the recommendations. I respectfully RECOMMEND that the Motions be DENIED WITHOUT PREJUDICE. FURTHER, IT IS ORDERED that pursuant to 28 U.S.C. § 636(b)(1)(C) and Fed.R.Civ.P. 72(b), the parties have 10 days after service of this recommendation to serve and file specific, written objections. A party's failure to serve and file specific, written objections waives de novo review of the recommendation by the district judge, Fed.R.Civ.P. 72(b); Thomas v. Arn, 474 U.S. 140, 147-48 (1985), and also waives appellate review of both factual and legal questions. In re Key Energy Resources Inc., 230 F.3d 1197, 1199-1200 (10th Cir. 2000). A party's objections to this 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, 73 F.3d 1057, 1060 (10th Cir. 1996).

The defendants' motions to dismiss are not responsive pleadings. Cooper v. Shumway, 780 F.2d 27, 29 (10th Cir. 1985). 2

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Dated September 24, 2009. BY THE COURT: s/ Boyd N. Boland United States Magistrate Judge

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