Getachew v. 7-Eleven, Inc. et al

Filing 56

ORDER RE: RECOMMENDATIONS OF THE UNITED STATES MAGISTRATE JUDGE. The recommendations contained in the magistrate judge's Order on Plaintiff's Motions Amending His Complaint (Docket Nos. 40 and 41 ) and Recommendations on Defendant 7-Eleven, Inc.'s Motion To Dismiss (Docket No. 10 ) and Plaintiff's Motion for Judgment Against Defendant 7-Eleven (Docket No. 23 ) 52 filed April 27, 2012, are REJECTED IN PART and APPROVED AND ADOPTED IN PART. Plaintiff's Moti on for Judgment Against Defendant 7-Eleven Inc. On Plaintiff's Pleading Filed on September 14, 2011 23 , filed November 14, 2011, is DENIED. Defendant 7-Eleven, Inc.s Motion To Dismiss and Memorandum in Support [#10], filed October 18, 2011, is RE-REFERRED to the magistrate judge for further recommendation. By Judge Robert E. Blackburn on 6/8/12.(mjgsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Robert E. Blackburn
Civil Case No. 11-cv-02421-REB-MJW
ALEMAYEHU GETACHEW,
Plaintiff,
v.
7-ELEVEN, INC.,
Defendant.

ORDER RE: RECOMMENDATIONS OF
THE UNITED STATES MAGISTRATE JUDGE
Blackburn, J.
The matters before me are the recommendations contained in the magistrate
judge’s Order on Plaintiff’s Motions Amending His Complaint (Docket Nos. 40 and
41) and Recommendations on Defendant 7-Eleven, Inc.’s Motion To Dismiss
(Docket No. 10) and Plaintiff’s Motion for Judgment Against Defendant 7-Eleven
(Docket No. 23) [#52]1 filed April 27, 2012. I adopt the recommendation regarding
plaintiff’s motion for judgment against defendant, but respectfully reject the
recommendation to deny defendant’s motion to dismiss as moot in light of more recent
developments in the case.
Plaintiff is proceeding pro se. Accordingly, and appropriately, the magistrate
judge construed his pleadings more liberally and held them to a less stringent standard
than formal pleadings drafted by lawyers, as have I. See Erickson v. Pardus, 551 U.S.
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“[#52]” is an example of the convention I use to identify the docket number assigned to a
specific paper by the court’s electronic case filing and management system (CM/ECF). I use this
convention throughout this order.

89, 94, 127 S. Ct. 2197, 2200, 167 L.Ed.2d 1081 (2007); Andrews v. Heaton, 483 F.3d
1070, 1076 (10th Cir. 2007); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991)
(citing Haines v. Kerner, 404 U.S. 519, 520-21, 92 S.Ct. 594, 595-96, 30 L.Ed.2d 652
(1972)). However, a litigant’s pro se status does not excuse him from complying in all
particulars with the Federal Rules of Civil Procedure, the Local Rules of this District, and
of course, all duly issued orders of the court. Nielsen v. Price, 17 F.3d 1276, 1277
(10th Cir. 1994); Carrillo v. Castle, Stawiarki, LLC, 2012 WL 12809 at*2 (D. Colo. Jan.
4, 2012). Nevertheless, and despite plaintiff’s pro se status, where no objections have
been filed to the recommendation, as here, I review it only for plain error. See MoralesFernandez v. Immigration & Naturalization Service, 418 F.3d 1116, 1122 (10th Cir.
2005).
The magistrate judge recommends that Defendant 7-Eleven, Inc.’s Motion To
Dismiss and Memorandum in Support [#10] filed October 18, 2011, be denied as
moot in light of his contemporaneous order granting plaintiff’s motions to amend his
complaint to add parties and a request for a jury trial. Plaintiff was ordered to file his
amended complaint on or before May 11, 2012. When no such amended pleading was
filed by the deadline, the magistrate judge issued an Order To Show Cause [#54] filed
May 22, 2012, directing plaintiff to show why the case should not be dismissed for
failure to comply with the court’s directive. Plaintiff filed an untimely response to the
show cause order, indicating that “[a]t this time [he] is not interested to amend.”
(Plaintiff’s Answer to “Order To Show” Filed on May 22, 2012 [#55], filed June 4,

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2012.)2
Given plaintiff’s obvious change of heart concerning his desire to amend his
complaint, the reasons underlying the magistrate judge’s recommendation to deny
defendant’s motion to dismiss without prejudice have evanesced. I therefore will reject
that recommendation and re-refer the motion to the magistrate judge for further
recommendation. However, finding no plain error in the magistrate judge’s
recommended disposition of plaintiff’s motion for judgment, I find and conclude that the
recommendation as to that motion should be approved and adopted.
THEREFORE, IT IS ORDERED as follows:
1. That the recommendations contained in the magistrate judge’s Order on
Plaintiff’s Motions Amending His Complaint (Docket Nos. 40 and 41) and
Recommendations on Defendant 7-Eleven, Inc.’s Motion To Dismiss (Docket No.
10) and Plaintiff’s Motion for Judgment Against Defendant 7-Eleven (Docket No.
23) [#52] filed April 27, 2012, are REJECTED IN PART and APPROVED AND
ADOPTED IN PART as follows:
a. That the recommendation to deny Defendant 7-Eleven, Inc.’s Motion
To Dismiss and Memorandum in Support [#10], filed October 18, 2011,
is respectfully REJECTED; and
b. that the recommendation to deny Plaintiff’s Motion for Judgment
Against Defendant 7-Eleven Inc. On Plaintiff’s Pleading Filed on

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The magistrate judge has not yet had opportunity to resolve the issues implicated by the
plaintiff’s answer to the show cause order.

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September 14, 2011 [#23], filed November 14, 2011, is APPROVED AND
ADOPTED as an order of this court;
2. That Plaintiff’s Motion for Judgment Against Defendant 7-Eleven Inc. On
Plaintiff’s Pleading Filed on September 14, 2011 [#23], filed November 14, 2011, is
DENIED; and
3. That Defendant 7-Eleven, Inc.’s Motion To Dismiss and Memorandum in
Support [#10], filed October 18, 2011, is RE-REFERRED to the magistrate judge for
further recommendation.
Dated June 8, 2012, at Denver, Colorado.
BY THE COURT:

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