Miller et al v. Timothy M. Buchheit Revocable Trust et al

Filing 85

ORDER Adopting Recommendation of the United States Magistrate Judge. The Amended Recommendations on Pending Motions [# 73 ] are APPROVED AND ADOPTED as an order of this court. The objections of plaintiffs in their Objection to Amended Recommendations on Pending Motions [# 81 ] are OVERRULED. The Motion To Dismiss, Stay or Transfer on Behalf of Defendants Ronald C. Unterreiner, Herbert Graetz, Robert E. Moser, Joe Bullock, Jeffrey Unterreiner, CPA, and Begley Young Unterreiner & White LLC [# 32 ] is GRANTED IN PART and DENIED AS MOOT IN PART. Pursuant to defendants' Notice To Withdraw Motion To DismissSecond Amended Complaint [# 67 ] and the court's corresponding order granting that motion [# 74 ] defendants' Motion To Dismiss Second Amended Complaint [# 54 ] is WITHDRAWN. All pretrial deadlines, the Trial Preparation Conference set 3/28/2014, at 3:30 p.m., and the jury trial set to commence 4/14/2014, are VACATED. This case is TRANSFERRED to the United States District Court for theEastern District of Missouri (111 South 10th Street, St. Louis, MO 63102). By Judge Robert E. Blackburn on 11/22/2013. (klyon, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Robert E. Blackburn
Civil Action No. 13-cv-00365-REB-CBS
DOUGLAS E. MILLER, and
FRANCES ELLEN MILLER, a/k/a F. ELLEN MILLER,
Plaintiffs,
v.
RONALD C. UNTERREINER,
HERBERT GRAETZ,
ROBERT E. MOSER,
JEFFREY UNTERREINER, CPA, and
BEGLEY YOUNG UNTERREINER & WHITE LLC,
Defendants.

ORDER ADOPTING RECOMMENDATION OF
THE UNITED STATES MAGISTRATE JUDGE
Blackburn, J.
The matters before me are (1) the magistrate judge’s Amended
Recommendations on Pending Motions [#73],1 filed September 27, 2013; and (2)
plaintiffs’ Objection to Amended Recommendations on Pending Motions [#81], filed
October 30, 2013. I overrule the objections, adopt the recommendations, and grant
defendants’ motion to transfer venue to the United States District Court for the Eastern
District of Missouri.
As required by 28 U.S.C. § 636(b), I have reviewed de novo all portions of the
recommendations to which objections have been filed, and have considered carefully
1

“[#73]” is an example of the convention I use to identify the docket number assigned to a
specific paper by the court’s electronic case filing and management system (CM/ECF). I use this
convention throughout this order.

the recommendations, objection, and applicable caselaw. The recommendations are
detailed and well-reasoned. The magistrate judge’s analysis of the factors informing the
court’s decision whether to transfer this case to the United States District Court for the
Eastern District of Missouri is cogent. By contrast, plaintiffs’ arguments are
unpersuasive. Although the magistrate judge discussed the principles embodied in the
“first-filed’ rule in making his recommendations, he did so within the broader context of
determining whether transfer was warranted under 28 U.S.C. § 1404(a). Contrary to
plaintiffs’ arguments, I am not constrained to defer to the Missouri court’s determination
as to which of these two actions should proceed.2
Thus, I find and conclude that the arguments advanced, authorities cited, and
findings of fact, conclusions of law, and recommendations proposed by the magistrate
judge should be approved and adopted.
THEREFORE, IT IS ORDERED as follows:
1. That the Amended Recommendations on Pending Motions [#73], filed
September 27, 2013, are APPROVED AND ADOPTED as an order of this court;
2. That the objections of plaintiffs in their Objection to Amended
Recommendations on Pending Motions [#81], filed October 30, 2013, are
OVERRULED;
3. That the Motion To Dismiss, Stay or Transfer on Behalf of Defendants
Ronald C. Unterreiner, Herbert Graetz, Robert E. Moser, Joe Bullock, Jeffrey
Unterreiner, CPA, and Begley Young Unterreiner & White LLC [#32], filed April 15,
2

Moreover, as the magistrate judge noted, plaintiffs presented no actual evidence to substantiate
their bald assertion that the Missouri suit was an anticipatory filing.

2

2013, is GRANTED IN PART and DENIED AS MOOT IN PART as follows;
a. That the motion is GRANTED to the extent it requests that this action be
transferred to the United States District Court for the Eastern District of Missouri; and
b. That otherwise, the motion is DENIED AS MOOT;
4. That pursuant to defendants’ Notice To Withdraw Motion To Dismiss
Second Amended Complaint [#67], filed August 9, 2013, and the court’s
corresponding order granting that motion [#74], filed September 27, 2013, defendants’
Motion To Dismiss Second Amended Complaint [#54], filed July 6, 2013, is
WITHDRAWN;
5. That all pretrial deadlines, the Trial Preparation Conference set March 28,
2014, at 3:30 p.m., and the jury trial set to commence April 14, 2014, are VACATED;
and
6. That this case is TRANSFERRED to the United States District Court for the
Eastern District of Missouri (111 South 10th Street, St. Louis, MO 63102).
Dated November 22, 2013, at Denver, Colorado.
BY THE COURT:

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