Dowling v. Xcel Energy

Filing 23

ORDER Affirming and Adopting Recommendation of United States Magistrate Judge. ORDERED that Magistrate Judge Shaffer's Amended Recommendation 21 is AFFIRMED and ADOPTED, and this civil action is DISMISSED WITHOUT PREJUDICE by Judge Wiley Y. Daniel on 02/14/14.(jhawk, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Senior Judge Wiley Y. Daniel
Civil Action No. 12-cv-01735-WYD-CBS
THERESA L. DOWLING,
Plaintiff,
v.
XCEL ENERGY,
Defendant.
______________________________________________________________________
ORDER AFFIRMING AND ADOPTING RECOMMENDATION OF UNITED STATES
MAGISTRATE JUDGE
______________________________________________________________________
THIS MATTER is before the Court on Magistrate Judge Shaffer’s Amended
Recommendation [ECF No. 21].1
Because plaintiff, Theresa L. Dowling, proceeds pro se, I referred this civil action
to Magistrate Judge Shaffer. ECF No. 12. On October 10, 2012, Magistrate Judge
Shaffer issued his Amended Recommendation [ECF No. 21] in which he states that this
civil action should be dismissed without prejudice because Dowling failed to: (1) appear
at the Preliminary Scheduling Conference; (2) comply with the Local Rules of Practice
for the United States District Court for the District of Colorado; (3) comply with the
FEDERAL RULES of CIVIL PROCEDURE; (4) prosecute this action; and, (5) respond to the
Order To Show Cause [ECF No. 18]. Magistrate Judge Shaffer’s Amended
Recommendation [ECF No. 21] is incorporated herein by reference. See 28 U.S.C. §

1

The Amended Recommendation [ECF No. 21] includes an “Advisement to the Parties” which was not
included in the original Recommendation [ECF No. 20]. As such, the Amended Recommendation [ECF
No. 21] is the operative document in this matter.

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636(b)(1), Rule 72(b) of the FEDERAL RULES of CIVIL PROCEDURE, D.C.COLO.LCivR.
72.1.
Magistrate Judge Shaffer advised the parties that they had 14 days after service
of a copy of his Amended Recommendation [ECF No. 21] to file objections. ECF No. 21,
p. 4. As of Friday, February 14, 2014, no party has filed objections. Because the
parties did not file objections, I am vested with discretion to review the Amended
Recommendation [ECF No. 21] “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 Amended Recommendation [ECF No. 21] to “satisfy
[my]self that there is no clear error on the face of the record.”2 Advisory Committee
Notes to FED. R. CIV. P. 72(b).
Having reviewed the Amended Recommendation [ECF No. 21], I am satisfied
that there is no clear error on the face of the record. I find that Magistrate Judge
Shaffer’s Amended Recommendation [ECF No. 21] is thorough, well-reasoned, and
sound. Further, I agree that this civil action should be dismissed without prejudice for
Dowling’s failure to: (1) appear at the Preliminary Scheduling Conference; (2) comply
with the Local Rules of Practice for the United States District Court for the District of
Colorado; (3) comply with the FEDERAL RULES of CIVIL PROCEDURE; (4) prosecute this

2

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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action; and, (5) respond to the Order To Show Cause [ECF No. 18].
CONCLUSION
After careful consideration of the matter before this Court, it is
ORDERED that Magistrate Judge Shaffer’s Amended Recommendation [ECF
No. 21] is AFFIRMED and ADOPTED, and this civil action is DISMISSED WITHOUT
PREJUDICE.
Dated: February 14, 2014.
BY THE COURT:
/s/ Wiley Y. Daniel
Wiley Y. Daniel
Senior U. S. District Judge

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