Freedman v. Countrywide Home Loans, Inc.

Filing 11

REPORT AND RECOMMENDATION that 5 Defendant's MOTION to Dismiss be denied as moot. Ordered: Plaintiff shall respond to Defendant's second Motion to Dismiss 8 on or before 7/31/09, by Magistrate Judge Kristen L. Mix on 7/9/09. (ebs, )

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 09-cv-01523-PAB-KLM KEITH S. FREEDMAN, Plaintiff, v. COUNTRYWIDE HOME LOANS, INC., a Colorado foreign corporation, Defendant. _____________________________________________________________________ RECOMMENDATION TO DENY MOTION TO DISMISS AS MOOT AND ORDER SETTING RESPONSE DEADLINE _____________________________________________________________________ ENTERED BY MAGISTRATE JUDGE KRISTEN L. MIX This matter is before the Court on Defendant's Motion to Dismiss [Docket No. 5; Filed June 29, 2009] ("Motion to Dismiss").1 After the Motion to Dismiss was filed, Plaintiff filed a First Amended Complaint [Docket Nos. 1-4 & 3]. The filing of an amended complaint serves to moot any pending motions to dismiss directed at the superceded complaint. See Gotfredson v. Larsen LP, 432 F. Supp. 2d 1163, 1172 (D. Colo. 2006). Further, I note that Defendant has now filed a second motion to dismiss Plaintiff's First Amended Complaint [Docket No. 8]. Pursuant to 28 U.S.C. 636(b)(1) and D.C. Colo. L. Civ. R. 72.1(C)(3), the first Motion to Dismiss has been referred to this Court for recommendation. IT IS HEREBY RECOMMENDED that the first Motion to Dismiss [#5] be DENIED as moot. IT IS FURTHER ORDERED that Plaintiff shall respond to Defendant's second This case was originally filed in state court and the Motion to Dismiss at issue here was filed before the case was removed to federal court [Docket Nos. 1 & 1-15]. 1 Motion to Dismiss [#8] on or before July 31, 2009. IT IS FURTHER ORDERED that pursuant to Fed. R. Civ. P. 72, the parties shall have ten (10) days after service of the Recommendation to serve and file any written objections in order to obtain reconsideration by the District Judge to whom this case is assigned. 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. Makin v. Colo. Dept. of Corr., 183 F.3d 1205, 1210 (10th Cir. 1999); Talley v. Hesse, 91 F.3d 1411, 1412-13 (10th Cir. 1996). 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 Prop., 73 F.3d 1057, 1060 (10th Cir. 1996). Dated: July 9, 2009 BY THE COURT: s/ Kristen L. Mix U.S. Magistrate Judge Kristen L. Mix

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