Fick v. US Bank National Association et al

Filing 60

ORDER Affirming and Adopting Recommendation of United States Magistrate Judge. ORDERED that Magistrate Judge Mix's Recommendation 58 is AFFIRMED and ADOPTED. ORDERED that pursuant to FED. R. CIV. P. 41(b), plaintiff, Linda Sue Fick's, claims are DISMISSED WITH PREJUDICE for failure to prosecute and failure to comply with court orders by Judge Wiley Y. Daniel on 09/17/13.(jjhsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Senior Judge Wiley Y. Daniel
Civil Action No. 11-cv-03184-WYD-KLM
LINDA SUE FICK,
Plaintiff,
v.
WELLS FARGO, and,
AMERICA’S SERVICING COMPANY,
Defendants.
______________________________________________________________________
ORDER AFFIRMING AND ADOPTING RECOMMENDATION OF UNITED STATES
MAGISTRATE JUDGE
______________________________________________________________________
THIS MATTER is before the Court on Magistrate Judge Mix’s Recommendation
[ECF No. 58]. Because the plaintiff, Linda Sue Fick, proceeds pro se, I referred all
motions to Magistrate Judge Mix [ECF No. 7]. On January 15, 2013, Magistrate Judge
Mix issued a Recommendation [ECF No. 58] stating that pursuant to Rule 41(b) of the
FEDERAL RULES of CIVIL PROCEDURE, Fick’s claims should be dismissed with prejudice
for failure to prosecute and failure to comply with court orders. Magistrate Judge Mix’s
Recommendation [ECF No. 58] is incorporated herein by reference. See 28 U.S.C. §
636(b)(1), FED. R. CIV. P. 72(b), D.C.COLO.LCivR. 72.1. For the reasons stated below,
the Recommendation [ECF No. 58] is AFFIRMED and ADOPTED, and Fick’s claims are
DISMISSED WITH PREJUDICE.

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BACKGROUND
On December 7, 2011, pro se plaintiff, Linda Sue Fick, filed suit against
defendants, Wells Fargo and America’s Servicing Company (collectively “the
Defendants”), seeking a declaratory judgment that the Defendants have “no legal
standing to institute or maintain foreclosure” proceedings against her. ECF No. 1, p. 9, ¶
19. On November 21, 2012, the Defendants filed a Motion To Dismiss RESPA and
FDCPA Claims [ECF No. 55].1 Because Fick failed to respond to the Defendants’
motion [ECF No. 55], Magistrate Judge Mix issued an Order To Show Cause [ECF No.
57] on December 19, 2012, ordering that on or before January 7, 2013, Fick shall either:
(1) show good cause in writing as to why she failed to respond to the Defendants’
motion [ECF No. 55]; or, (2) file a response to the Defendants’ motion [ECF No. 55].
Fick did not respond to the Order To Show Cause [ECF No. 57].2 As a result of Fick’s
failure to respond, Magistrate Judge Mix issued a Recommendation [ECF No. 58] on
January 15, 2013, recommending that pursuant to FED. R. CIV. P. 41(b), Fick’s claims
against the Defendants should be dismissed with prejudice for failure to prosecute and
failure to comply with court orders.3 Magistrate Judge Mix advised the parties that they
had 14 days after service of a copy of the Recommendation [ECF No. 58] to file

1

RESPA is an acronym for the Real Estate Settlement Procedures Act, 12 U.S.C. § 2601, et seq.
FDCPA is an acronym for the Fair Debt Collection Practices Act, 15 U.S.C. § 1692, et seq.

2

As of Tuesday, September 17, 2013, Fick has not responded to Magistrate Judge Mix’s Order To Show
Cause [ECF No. 57]. To note, this is the second time Fick has not responded to an Order To Show
Cause issued by Magistrate Judge Mix; the first of which was issued by Magistrate Judge Mix on August
13, 2012 [ECF No. 50].
3

FED. R. CIV. P. 41(b) states, in pertinent part, “[i]f the plaintiff fails to prosecute or to comply with these
rules or a court order, a defendant may move to dismiss the action or any claim against it.” “Rule [41(b)]
has long been interpreted to permit courts to dismiss actions sua sponte for a plaintiff’s failure to
prosecute . . . ” Rogers v. Andrus Transp. Servs., 502 F.3d 1147, 1151 (10th Cir. 2007) (quoting Olsen v.
Mapes, 333 F.3d 1199, 1204 n.3 (10th Cir. 2003)).

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objections. As of Tuesday, September 17, 2013, no party has filed objections to the
Recommendation [ECF No. 58].
ANALYSIS
Because the parties did not file objections to Magistrate Judge Mix’s
Recommendation [ECF No. 58], I am vested with discretion to review it “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.”4 Advisory Committee Notes to FED. R. CIV. P. 72(b).
Having reviewed Magistrate Judge Mix’s Recommendation [ECF No. 58], I am
satisfied that there is no clear error on the face of the record. I find that Magistrate
Judge Mix’s Recommendation [ECF No. 58] is thorough, well-reasoned, and sound.
Further, I agree that pursuant to FED. R. CIV. P. 41(b), Fick’s claims should be
dismissed with prejudice for failure to prosecute and failure to comply with court orders.
CONCLUSION
After careful consideration of the matter before this Court, it is
ORDERED that Magistrate Judge Mix’s Recommendation [ECF No. 58] is
AFFIRMED and ADOPTED. It is

4

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).

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FURTHER ORDERED that pursuant to FED. R. CIV. P. 41(b), plaintiff, Linda Sue
Fick’s, claims are DISMISSED WITH PREJUDICE for failure to prosecute and failure to
comply with court orders.
Dated: September 17, 2013.
BY THE COURT:
/s/ Wiley Y. Daniel
Wiley Y. Daniel
Senior U. S. District Judge

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