Smith v. United Parcel Service

Filing 49

ORDER regarding the 42 Recommendation of the Magistrate Judge, 10 Defendant's Motion to Dismiss, or in the Alternative for Summary Judgment, 23 Defendant's Second Motion to Dismiss, and 27 Plaintiff's Motion for Change of Venue. The Magistrate Judge's Recommendation is approved in part but is disapproved in that this action be dismissed with prejudice, by Judge Lewis T. Babcock on 3/24/2014. (eseam)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
LEWIS T. BABCOCK, JUDGE
Civil Case No. 13-cv-01815-LTB-CBS
MATTHEW ALAN SMITH,
Plaintiff,
v.
UNITED PARCEL SERVICE,
Defendant.
________________________________________________________________________
ORDER
________________________________________________________________________

This case is before me on the Recommendation of the Magistrate Judge that
Defendant’s Motion to Dismiss, or in the Alternative for Summary Judgment, be granted in
part; that any allegations concerning conduct occurring prior to August 7, 2012 be
dismissed without prejudice for lack of subject matter jurisdiction based on failure to
exhaust administrative remedies, a jurisdictional prerequisite to suit; that the remaining
allegations concerning conduct occurring after August 7, 2012 be dismissed without
prejudice for failure to state a claim to which relief can be granted. The Magistrate Judge
further recommends that Defendant’s Second Motion to Dismiss be denied without
prejudice in light of this recommendation; that Defendant’s Motion to Dismiss, or in the
Alternative, for Summary Judgment be granted in part; and that Plaintiff’s Motion for
Change of Venue be denied without prejudice in light of this recommendation; that
Defendant’s Motion to Dismiss, or in the Alternative, for Summary Judgment be granted in

part. The recommendation was issued and served on February 27, 2014.
The Plaintiff has filed three documents all entitled “Plaintiff’s Notice of Magistrate
Judges Recommendation and Venue Changes (Doc 44 - filed March 4, 2014; Doc 45 - filed
March 4, 2014; Doc 171 - filed in Case No. 12-cv-01578 March 4, 2014). I construe these
documents as specific objections to the Magistrate Judge’s Recommendations.
The Defendant has filed its specific objections to the Magistrate Judge’s
Recommendation (Doc 46) supplemented by its Supplemental Objections (Doc 48).
Defendant has also responded to the Plaintiff’s “Notice of Magistrate Judges
Recommendation and Venue Changes.”
In light of these objections, I reviewed the Magistrate Judge’s Recommendation de
novo.
The Defendant agrees with the Magistrate Judge’s Recommendation in part but
objects and contends there are numerous reasons that dismissal be with prejudice. Each
of the Defendant’s contentions in this respect persuade me that the action must be
dismissed with prejudice.
Accordingly,
IT IS ORDERED that the Magistrate Judge’s Recommendation is approved in part
but that it is disapproved in that the above action be DISMISSED WITH PREJUDICE.
BY THE COURT:

s/Lewis T. Babcock
Lewis T. Babcock, Judge
DATED: March 24, 2014