Bremer v. Association of Flight Attendants- CWA et al

Filing 143

ORDER The Recommendation of the United States Magistrate Judge ECF No. 134 is ADOPTED in its entirety; Plaintiffs Objection to the Recommendation ECF No. 136 is OVERRULED; and Defendants Motion to Dismiss Pursuant to Fed. R. Civ. P. 41(b) ECF No. 122 is GRANTED, and this matter is DISMISSED WITH PREJUDICE. Defendant shall have its costs, by Judge William J. Martinez on 8/18/2014.(evana, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge William J. Martínez
Civil Action No. 11-cv-2764-WJM-MJW
KARIN CHRISTINE BREMER,
Plaintiff,
v.
ASSOCIATION OF FLIGHT ATTENDANTS - CWA, a Labor Organization,
Defendants.

ORDER ADOPTING MARCH 13, 2014 RECOMMENDATION OF MAGISTRATE JUDGE
AND GRANTING DEFENDANT’S MOTION TO DISMISS

This matter is before the Court on Plaintiff’s Objection to U.S. Magistrate Judge
Michael J. Watanabe’s Recommendation dated March 13, 2014 (“Recommendation”),
which recommended granting Defendant Association of Flight Attendants’ (“Defendant” or
“AFA”) Motion to Dismiss Pursuant to Federal Rule of Civil Procedure 41(b). (ECF No.
134). The Recommendation is incorporated herein by reference. See 28 U.S.C. §
636(b)(1)(B); Fed. R. Civ. P. 72(b). Plaintiff filed a timely Objection to the
Recommendation (“Objection”). (ECF No. 136.) For the reasons set forth below,
Plaintiff’s Objection is overruled, the Recommendation is adopted, and Defendant’s
Motion to Dismiss is granted.
I. STANDARD OF REVIEW
When a magistrate judge issues a recommendation on a dispositive matter,
Federal Rule of Civil Procedure 72(b)(3) requires that the district judge “determine de
novo any part of the magistrate judge’s [recommendation] that has been properly

objected to.” Fed. R. Civ. P. 72(b)(3). In the absence of a timely and specific objection,
“the district court may review a magistrate . . . [judge’s] report under any standard it
deems appropriate.” Summers v. Utah, 927 F.2d 1165, 1167 (10th Cir. 1991) (citing
Thomas v. Arn, 474 U.S. 140, 150 (1985)); see also Fed. R. Civ. P. 72 Advisory
Committee’s Note (“When no timely objection is filed, the court need only satisfy itself that
there is no clear error on the face of the record.”). An objection to a recommendation is
properly made if it is both timely and specific. United States v. One Parcel of Real
Property Known as 2121 East 30th St., 73 F.3d 1057, 1059 (10th Cir. 1996). An
objection is sufficiently specific if it “enables the district judge to focus attention on those
issues—factual and legal—that are at the heart of the parties’ dispute.” Id. (quoting
Thomas v. Arn, 474 U.S. 140, 147 (1985)). In conducting its review, “[t]he district court
judge may accept, reject, or modify the recommendation; receive further evidence; or
return the matter to the magistrate judge with instructions.” Id.
Because Plaintiff is proceeding pro se, the Court must liberally construe her
pleadings. Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Trackwell v. United States
Gov’t, 472 F.3d 1242, 1243 (10th Cir. 2007). The Court, however, cannot act as
advocate for Plaintiff, who must still comply with the fundamental requirements of the
Federal Rules of Civil Procedure. See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.
1991).
II. BACKGROUND
Neither party objects to the recitation of facts set forth by the Magistrate Judge in
the Recommendation. Accordingly, the Court adopts and incorporates the factual

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background detailed in the Recommendation as if set forth herein. Briefly, Plaintiff filed
this action on October 24, 2011 against AFA and then-Defendant United Air Lines, Inc.
(ECF No. 1.) On July 1, 2013, the Court granted United Air Lines’ Motion to Dismiss,
granted AFA’s Motion to Strike Plaintiff’s Amended Complaint for failure to comply with
Federal Rules of Civil Procedure 8 and 10, and granted leave to Plaintiff to file an
Amended Complaint solely as to AFA. (ECF No. 109 at 11).
However, Plaintiff never filed an Amended Complaint pursuant to the Court’s
Order. Instead, Plaintiff filed a number of objections and motions to reconsider
subsequent orders of both Magistrate Judge Watanabe and the undersigned. (See ECF
Nos. 111, 114, 117, 119, 121.) Plaintiff also appealed the Court’s rulings to the Tenth
Circuit Court of Appeals (ECF No. 126), which dismissed Plaintiff’s appeal for lack of
jurisdiction (ECF No. 135).
On December 11, 2013, AFA filed a Motion to Dismiss, arguing that Plaintiff had
failed to prosecute and failed to comply with Court orders to file an operative pleading,
and that her claims were therefore subject to dismissal with prejudice pursuant to Rules
41(b) and 16(f). (ECF No. 122.) Plaintiff filed no response to the Motion to Dismiss. On
March 13, 2014, the Recommendation was entered. (ECF No. 134.) Plaintiff filed an
Objection (ECF No. 136), and AFA filed a Response to the Objection (ECF No. 137).
III. ANALYSIS
The Magistrate Judge’s Recommendation contains the following findings and
conclusions: (1) Rule 16(f) permits dismissal as a sanction against a party that has
committed willful misconduct in failing to obey a pretrial order; and (2) dismissal is
appropriate here because Defendant has been prejudiced, Plaintiff has interfered with the
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judicial process, Plaintiff is culpable for her failure to comply with the Court’s order and
had notice of possible dismissal, and a lesser sanction would be insufficient. (ECF No.
134 at 5-9.)
Plaintiff’s Objection fails to address the majority of the findings or conclusions set
forth in the Recommendation. Instead, she states in a conclusory manner that Defendant
has not been prejudiced, and that Plaintiff “has not willfully not complied” with the Court’s
orders, without explanation of why she has filed no operative complaint and did not
respond to the Motion to Dismiss. (See ECF No. 136 at 7.) The Objection further
discusses the merits of Plaintiff’s claims, argues issues of discovery, and reiterates
arguments which have already been addressed. (Id. at 2-9.)
First, as to Plaintiff’s objection to the finding in the Recommendation that her
failure to comply with the Court’s orders was been willful, the Court finds that no evidence
or argument in the record excusing Plaintiff’s failure to file an operative complaint per the
Court’s orders, particularly given the repetitive, unresponsive filings that Plaintiff has
presented in the meantime. Thus, the Court agrees with the Magistrate Judge that such
failure was willful. As to Plaintiff’s objection to the finding that Defendant has been
prejudiced, the Court finds that, in the absence of an operative complaint, Defendant has
been prejudiced both by its inability to proceed on the merits and by being required to
respond to Plaintiff’s numerous improper filings and motions to reconsider. Accordingly,
Plaintiff’s Objection to these findings is overruled.
As to the remainder of Plaintiff’s arguments, they do not constitute specific
objections meriting de novo review of the Recommendation. See One Parcel of Real
Property, 73 F.3d at 1059; Summers, 927 F.2d at 1167. Instead of addressing the
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Magistrate Judge’s findings or analysis, Plaintiff raises issues related to the merits of her
claims which are not properly before the Court due to the lack of an operative complaint,
and continues to reargue points already addressed in the Court’s earlier rulings. The
Court need not address these points any further. See id.
Having reviewed the relevant parts of the record, the Court finds that the
Magistrate Judge’s reasoning is not clearly erroneous or contrary to law. Thus, Plaintiff
has failed to provide any grounds upon which the Objection can be sustained, and the
Recommendation is adopted in full.
IV. CONCLUSION
For the reasons set forth above, the Court ORDERS as follows:
1.

The Recommendation of the United States Magistrate Judge (ECF No. 134) is
ADOPTED in its entirety;

2.

Plaintiff’s Objection to the Recommendation (ECF No. 136) is OVERRULED; and

3.

Defendant’s Motion to Dismiss Pursuant to Fed. R. Civ. P. 41(b) (ECF No. 122) is
GRANTED, and this matter is DISMISSED WITH PREJUDICE. Defendant shall
have its costs.
Dated this 18th day of August, 2014.

BY THE COURT:

__________________________
William J. Martínez
United States District Judge

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