Guarneros et al v. Deutsche Bank Trust Company Americas et al

Filing 65

AMENDED ORDER ACCEPTING MAGISTRATE JUDGE'S RECOMMENDATION re: 62 Order. Accepting 59 Report and Recommendation of United States Magistrate Judge. Granting pursuant to Fed. R. Civ. P. 4(m) and 12(b)(5) and otherwise denying as moot 25 Aur ora Loan Services LLC's Motion to Dismiss Plaintiffs' Amended Complaint. Granting pursuant to Fed. R. Civ. P. 4(m) and 12(b)(5) and otherwise denying as moot 28 Castle Meinhold & Stawiarski, LLC, Katharine E. Fisher and Lauren R. Smith&# 039;s Motion to Dismiss Plaintiffs' Amended Complaint for Failure to Effect Service of Process. Granting 55 Aurora Loan Services LLC's Motion for Attorney Fees. Judgment shall enter against Plaintiffs and in favor of defendant Aurora Lo an Services, LLC in the amount of $10,000.00 for attorneys' fees incurred in litigating the motion to dismiss and in the amount of $492.25 for costs. Judgment shall enter against Plaintiffs and in favor of defendants Castle Meinhold & Stawiarski, LLC, Katherine E. Fisher, and Lauren R. Smith in the amount of $10,000.00 for attorneys fees incurred in litigating the motion to dismiss. Plaintiffs claims against Aurora Loan Services, LLC, Castle Meinhold & Stawiarski, LLC, Katherine E. Fisher, and Lauren R. Smith are dismissed without prejudice, by Judge Philip A. Brimmer on 7/7/09. (ebs, )

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Judge Philip A. Brimmer Civil Case No. 08-cv-01094-PAB-KLM KEVIN D. GUARNEROS and SHERRON L. LEWIS, JR., Plaintiffs, v. DEUTSCHE BANK TRUST COMPANY AMERICAS, AURORA LOAN SERVICES, LLC, KATHERINE E. FISHER, LAUREN R. SMITH, CASTLE MEINHOLD & STAWIARSKI, LLC, STEPHANIE O'MALLEY, and DIANE BAILEY, Defendants. _____________________________________________________________________ AMENDED ORDER ACCEPTING MAGISTRATE JUDGE'S RECOMMENDATION _____________________________________________________________________ This matter is before the Court on the Recommendation of United States Magistrate Judge Kristen L. Mix filed on June 1, 2009 [Docket No. 59]. The Recommendation states that objections to the Recommendation must be filed within ten days after its service on the parties. See also 28 U.S.C. § 636(b)(1)(C). The Recommendation was served on June 2, 2009. No party has objected to the Recommendation. Court mail addressed to plaintiff Guarneros at his last known address has been returned as undeliverable since September, 2008. Plaintiff Guarneros has failed to inform the court of his current mailing address and therefore bears responsibility for not receiving a copy of the Recommendation, which was also returned as undeliverable.

In the absence of an objection, the district court may review a magistrate judge's recommendation under any standard it deems appropriate. Summers v. Utah, 927 F.2d 1165, 1167 (10th Cir. 1991); see also Thomas v. Arn, 474 U.S. 140, 150 (1985) ("[i]t does not appear that Congress intended to require district court review of a magistrate's factual or legal conclusions, under a de novo or any other standard, when neither party objects to those findings"). In this matter, I have reviewed the Recommendation to satisfy myself that there is "no clear error on the face of the record."1 See Fed. R. Civ. P. 72(b), Advisory Committee Notes. Based on this review, I have concluded that the Recommendation is a correct application of the facts and the law. However, rather than dismissing the claims against movants with prejudice as recommended by the magistrate judge, the Court will dismiss such claims without prejudice. See Fed. R. Civ. P. 4(m) (if service not effectuated, dismissal is "without prejudice"). Accordingly, it is ORDERED as follows: 1. The Recommendation of United States Magistrate Judge [Docket No. 59] is accepted. 2. Aurora Loan Services LLC's Motion to Dismiss Plaintiffs' Amended Complaint [Docket No. 25] is granted pursuant to Fed. R. Civ. P. 4(m) and 12(b)(5) and otherwise denied as moot. 3. Castle Meinhold & Stawiarski, LLC, Katharine E. Fisher and Lauren R. Smith's Motion to Dismiss Plaintiffs' Amended Complaint for Failure to Effect Service of

This standard of review is something less than a "clearly erroneous or contrary to law" standard of review, Fed. R. Civ. P. 72(a), which in turn is less than a de novo review. Fed. R. Civ. P. 72(b). 2

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Process [Docket No. 28] is granted pursuant to Fed. R. Civ. P. 4(m) and 12(b)(5) and otherwise denied as moot. 4. Aurora Loan Services LLC's Motion for Attorney Fees [Docket No. 55] is granted. 5. Judgment shall enter against Plaintiffs and in favor of defendant Aurora Loan Services, LLC in the amount of $10,000.00 for attorneys' fees incurred in litigating the motion to dismiss and in the amount of $492.25 for costs. 6. Judgment shall enter against Plaintiffs and in favor of defendants Castle Meinhold & Stawiarski, LLC, Katherine E. Fisher, and Lauren R. Smith in the amount of $10,000.00 for attorneys' fees incurred in litigating the motion to dismiss. 7. Plaintiffs' claims against Aurora Loan Services, LLC, Castle Meinhold & Stawiarski, LLC, Katherine E. Fisher, and Lauren R. Smith are dismissed without prejudice.

DATED July 7, 2009. BY THE COURT:

s/Philip A. Brimmer PHILIP A. BRIMMER United States District Judge

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