Van Gorden et al v. City and County of Denver, The et al

Filing 9

ORDER Adopting and Affirming Magistrate Judge's Recommendation and for Adminstrative Closure. ORDERED that the Recommendation of United States Magistrate Judge issued on January 25, 2012 7 , is AFFIRMED and ADOPTED. ORDERED that the parties sha ll file a status report within 30 days of resolution of Plaintiffs re-zoning application. ORDERED that Defendants Motion to Dismiss Pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(60) 4 is DENIED by Chief Judge Wiley Y. Daniel on 02/16/12.(jjhsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Chief Judge Wiley Y. Daniel
Civil Action No. 11-cv-03146-WYD-KLM
TIMOTHY VAN GORDEN and
KARIN VAN GORDEN,
Plaintiffs,
v.
THE CITY AND COUNTY OF DENVER and
JEANNE FAATZ,
Defendants.

ORDER ADOPTING AND AFFIRMING
MAGISTRATE JUDGE'S RECOMMENDATION
AND FOR ADMINISTRATIVE CLOSURE

THIS MATTER is before the Court in connection with the parties’ Stipulated
Motion to Temporarily Stay Proceedings, filed January 20, 2012 [ECF No. 7]. Therein,
the parties request a complete stay of proceedings pending resolution of a re-zoning
application, which Plaintiffs expect to file within the next thirty days and which will not be
resolved for at least another three months.
This motion was referred to Magistrate Judge Mix for a recommendation by
memorandum dated January 23, 2012. A Recommendation of United States Magistrate
Judge was issued on January 25, 2012 [ECF No. 7], and is incorporated herein by
reference. See 28 U.S.C. § 636(b)(1)(B); Fed. R. Civ. P. 72(b). Magistrate Judge Mix
recommends therein this case be administratively closed pursuant to D.C.Colo.LCivR
-1-

41.2, subject to reopening for good cause.
Magistrate Judge Mix advised the parties that specific written objections were
due within fourteen (14) days after being served with a copy of the Recommendation.
To date, no objections have been filed. Therefore, I am vested with discretion to review
the Recommendation “under any standard [I] deem[] appropriate.” Summers v. Utah,
927 F.2d 1165, 1167 (10th Cir. 1991); see also Thomas v. Arn, 474 U.S. 140, 150
(1985) (stating that “[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”). Nonetheless, though not
required to do so, I review the Recommendation to “satisfy [my]self that there is no clear
error on the face of the record.”1 See Fed. R. Civ. P. 72(b) Advisory Committee Notes.
Having reviewed the Recommendation, I am satisfied that there is no clear error
on the face of the record. I agree with Magistrate Judge Mix that the circumstances of
this case make it more appropriate for administrative closure rather than a stay of
proceedings.
Accordingly, it is hereby
ORDERED that the Recommendation of United States Magistrate Judge issued
on January 25, 2012 [ECF No. 7], is AFFIRMED and ADOPTED. In accordance
therewith, it is
FURTHER ORDERED that the Clerk of this Court shall administratively close this

1

Note, 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-

case, subject to reopening for good cause, pursuant to D.C.COLO.LCivR 41.2. It is
FURTHER ORDERED that the parties shall file a status report within thirty (30)
days of resolution of Plaintiffs’ re-zoning application. It is
FURTHER ORDERED that Defendants’ Motion to Dismiss Pursuant to Fed. R.
Civ. P. 12(b)(1) and 12(b)(6), filed December 29, 2011 [ECF No. 4] is DENIED
WITHOUT PREJUDICE.
Dated: February 16, 2012
BY THE COURT:

s/ Wiley Y. Daniel
Wiley Y. Daniel
Chief United States District Judge

-3-