O'Neill v. California Farms, Inc. et al

Filing 40

ORDER AFFIRMING AND ADOPTING RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE 38 Report and Recommendations.; granting in part and denying in part 8 Motion for Default Judgment; denying 31 Motion to Dismiss; granting in part and denying in part 32 Motion to Strike. by Judge Wiley Y. Daniel on 9/29/2013.(trlee, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Senior Judge Wiley Y. Daniel
Civil Action No. 12-cv-00676-WYD-KMT
BARRY O’NEILL;
Plaintiff,
v.
CALIFORNIA FARMS, INC.;
JAMES ROBERTS; and,
DAN FANTZ,
Defendants.
______________________________________________________________________
ORDER AFFIRMING AND ADOPTING RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
______________________________________________________________________
THIS MATTER is before the Court on: (1) plaintiff, Barry O’Neill’s, Motion For
Entry Of Default And Default Judgment [ECF No. 8]; (2) plaintiff, Barry O’Neill’s, Motion
For Entry Of Default And Default Judgment Against Defendant Dan Fantz [ECF No. 28];
(3) defendant, Dan Fantz’s, Motion To Dismiss Pursuant To FRCP Rule 12(b)(2) [Lack
Of Personal Jurisdiction] and Rule 12(b)(3) [Improper Venue] Or, In The Alternative, To
Transfer From Improper Venue [28 USC § 1406(a)] Or To Transfer For Convenience
[28 USC § 1404(a)] [ECF No. 31]; (4) plaintiff, Barry O’Neill’s, Motion To Strike
Defendant’s Motion To Dismiss And Re-Urging Motion For Default Judgment [ECF No.
32]; and, (5) Magistrate Judge Tafoya’s Amended Recommendation [ECF No. 38],
which incorporates a recommendation on all pending motions in this matter. Magistrate
Judge Tafoya’s Recommendation [ECF No. 38] 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.
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Magistrate Judge Tafoya issued her Recommendation [ECF No. 38] on February
14, 2013. She advised the parties that they had 14 days after service of a copy of the
Recommendation [ECF No. 38] to file objections. ECF No. 38, pp. 37-38. As of
Monday, September 30, 2013, no objections have been filed. No objections having
been filed, I am vested with discretion to review the Recommendation [ECF No. 38]
“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 [ECF No. 38] to “satisfy [my]self that there is no clear error on the
face of the record.”1 FED. R. CIV. P. 72(b) Advisory Committee Notes.
Having reviewed the Recommendation [ECF No. 38], I am satisfied that there is
no clear error on the face of the record. I find that Magistrate Judge Tafoya’s
Recommendation [ECF No. 38] is thorough, well-reasoned, and sound and I agree with
the recommendations contained therein. Accordingly, it is
ORDERED that Magistrate Judge Tafoya’s Recommendation [ECF No. 38] is
AFFIRMED and ADOPTED. Therefore, it is
FURTHER ORDERED that O’Neill’s Motion For Entry Of Default And Default
Judgment [ECF No. 8] and Motion For Entry Of Default And Default Judgment Against
Defendant Dan Fantz [ECF No. 28] are GRANTED IN PART and DENIED IN PART.

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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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The motions are GRANTED to the extent O’Neill seeks judgment on his first through
twelfth claims for relief (the securities claims). As to those claims, JUDGMENT IS
ENTERED against the defendants, California Farms, Inc., James Roberts, and Dan
Fantz, jointly and severally, for the sum of $100,000, plus interest. The motions are
DENIED to the extent that O’Neill seeks judgment on his thirteenth and fourteenth
claims (fraudulent misrepresentation and breach of fiduciary duty), and those claims are
DISMISSED WITH PREJUDICE. The motions are DENIED WITHOUT PREJUDICE to
the extent that O’Neill seeks attorney fees. If O’Neill wishes to request attorney fees, he
shall file an appropriate motion under Rule 54(d)(2) of the FEDERAL RULES of CIVIL
PROCEDURE and D.C.COLO.LCivR 54.3. It is
FURTHER ORDERED that defendant, Dan Fantz’s, Motion To Dismiss Pursuant
To FRCP Rule 12(b)(2) [Lack Of Personal Jurisdiction] and Rule 12(b)(3) [Improper
Venue] Or, In The Alternative, To Transfer From Improper Venue [28 USC § 1406(a)]
Or To Transfer For Convenience [28 USC § 1404(a)] [ECF No. 31] is DENIED. It is
FURTHER ORDERED that O’Neill’s Motion To Strike Defendant’s Motion To
Dismiss And Re-Urging Motion For Default Judgment [ECF No. 32] is GRANTED IN
PART and DENIED IN PART.2 The motion is GRANTED to the extent O’Neill seeks
judgment in his favor, and JUDGMENT IS ENTERED in his favor as outlined in this
Order. The Motion is DENIED to the extent O’Neill seeks to strike Fantz’s, Motion To
Dismiss Pursuant To FRCP Rule 12(b)(2) [Lack Of Personal Jurisdiction] and Rule
12(b)(3) [Improper Venue] Or, In The Alternative, To Transfer From Improper Venue [28
2

Magistrate Judge Tafoya recommended that this motion be denied and I agree with that
recommendation. However, in this motion, O’Neill renews his argument for entry of default judgment in
his favor. Because I grant default judgment in O’Neill’s favor, this motion should be granted to the extent
that he seeks default judgment.

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USC § 1406(a)] Or To Transfer For Convenience [28 USC § 1404(a)] [ECF No. 31].
Dated: September 29, 2013.

BY THE COURT:
/s/ Wiley Y. Daniel
Wiley Y. Daniel
Senior U. S. District Judge

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