Topp v. Lone Tree Athletic Club

Filing 34

ORDER that Magistrate Judge Mixs Recommendation ECF No. 32 is AFFIRMED and ADOPTED. As such, it is FURTHER ORDERED that Topps Motion For Default Judgment ECF No. 23 is DENIED. It is FURTHER ORDERED that Topps FLSA claims are sua sponte DISMISS ED WITHOUT PREJUDICE. In light of this dismissal and pursuant to the discretion afforded me under 28 U.S.C. § 1367(c) (3), I DECLINE to exercise supplemental jurisdiction over Topps Colorado state law claims. It is FURTHER ORDERED that Topp ha s leave to file an amended complaint that sufficiently alleges any claim under the FLSA and any Colorado state law claim. Should Topp choose to file an amended complaint, he SHALL FILE the amended complaint on or before Tuesday, July 29, 2014, by Judge Wiley Y. Daniel on 7/15/2014.(evana, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Senior Judge Wiley Y. Daniel
Civil Action No. 13-cv-01645-WYD-KLM
BRIAN TOPP,
Plaintiff,
v.
LONE TREE ATHLETIC CLUB, INC.,
Defendant.
______________________________________________________________________
ORDER AFFIRMING AND ADOPTING RECOMMENDATION OF UNITED STATES
MAGISTRATE JUDGE
______________________________________________________________________
THIS MATTER is before the Court on plaintiff, Brian Topp’s, Motion For Default
Judgment [ECF No. 23] and Magistrate Judge Mix’s Recommendation [ECF No. 32]
regarding Topp’s Motion For Default Judgment [ECF No. 23]. Topp filed his motion on
October 31, 2013 and I referred the motion to Magistrate Judge Mix that same day. ECF
No. 24. On June 25, 2014, Magistrate Judge Mix issued her Recommendation [ECF
No. 32] regarding Topp’s motion and states that it should be denied. Magistrate Judge
Mix’s Recommendation is incorporated herein by reference. See 28 U.S.C. § 636(b)(1),
Rule 72(b) of the FEDERAL RULES of CIVIL PROCEDURE, and D.C.COLO.LCivR. 72.1.
Magistrate Judge Mix advised the parties that they had 14 days after service of a
copy of her Recommendation to file objections to the Recommendation. ECF No. 32, p.
19, ¶ 2. As of Tuesday, July 15, 2014, no party has filed objections. Because the
parties did not file objections, I am vested with discretion to review the
Recommendation “under any standard [I] deem[] appropriate.” Summers v. Utah, 927
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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 Advisory Committee Notes to FED. R. CIV. P. 72(b).
Having reviewed the Recommendation, I am satisfied that there is no clear error
on the face of the record. I find that Magistrate Judge Mix’s Recommendation is
thorough, well-reasoned, and sound. Further, I agree that Topp’s motion should be
denied because he failed to allege sufficient facts to establish a claim under the Fair
Labor Standards Act (“FLSA”), 29 U.S.C. § 201, et seq. As such, I sua sponte DISMISS
Topp’s FLSA claims WITHOUT PREJUDICE.
Subject matter jurisdiction in this action is based on federal question jurisdiction
under 28 U.S.C. § 1331.2 The ground for exercising such jurisdiction is Topp’s FLSA
claims. Because I dismissed Topp’s FLSA claims, federal question subject matter
jurisdiction no longer exists and this Court lacks subject matter jurisdiction over Topp’s
Colorado state law claims. Because I dismissed all claims over which this Court had
original jurisdiction, I DECLINE to exercise supplemental jurisdiction over Topp’s
Colorado state law claims and those claims are DISMISSED WITHOUT PREJUDICE.

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

Pursuant to 28 U.S.C. § 1331, “[t]he district Courts have original jurisdiction of all civil actions arising
under the Constitution, laws, or treaties or the United States.”

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See 28 U.S.C. § 1367(c)(3)3; Smith v. City of Enid by & ex rel. Enid City Comm’n, 149
F.3d 1151, 1156 (10th Cir. 1998) (citations omitted) (“When all federal claims have been
dismissed, the court may, and usually should, decline to exercise jurisdiction over any
remaining state claims”).
CONCLUSION
After careful consideration of the matter before this Court, it is
ORDERED that Magistrate Judge Mix’s Recommendation [ECF No. 32] is
AFFIRMED and ADOPTED. As such, it is
FURTHER ORDERED that Topp’s Motion For Default Judgment [ECF No. 23] is
DENIED. It is
FURTHER ORDERED that Topp’s FLSA claims are sua sponte DISMISSED
WITHOUT PREJUDICE. In light of this dismissal and pursuant to the discretion
afforded me under 28 U.S.C. § 1367(c)(3), I DECLINE to exercise supplemental
jurisdiction over Topp’s Colorado state law claims. It is
FURTHER ORDERED that Topp has leave to file an amended complaint that
sufficiently alleges any claim under the FLSA and any Colorado state law claim. Should
Topp choose to file an amended complaint, he SHALL FILE the amended complaint on
or before Tuesday, July 29, 2014.
Dated: July 15, 2014.
BY THE COURT:
/s/ Wiley Y. Daniel
Wiley Y. Daniel
Senior U. S. District Judge

3

Pursuant to 28 U.S.C. § 1367(c)(3), a district court may decline to exercise supplemental jurisdiction
over a claim if it “has dismissed all claims over which it has original jurisdiction . . . ”

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