Malibu Media, LLC v. John Doe subscriber assigned IP address 71.237.22.86

Filing 77

ORDER that the Recommendation of United States Magistrate Judge ECF No. 75 is AFFIRMED and ADOPTED. Thus, it is ORDERED that Plaintiffs Motion to Dismiss Defendant/Counter-Plaintiffs Counterclaim ECF No. 30 is GRANTED, by Judge Wiley Y. Daniel on 3/5/2015.(evana, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No.

13-cv-02385-WYD-MEH

MALIBU MEDIA, LLC,
Plaintiff,
v.
MIKE CUDDY,
Defendant.

ORDER AFFIRMING AND ADOPTING RECOMMENDATION OF
UNITED STATES MAGISTRATE JUDGE

THIS MATTER is before the Court on Plaintiff’s Motion to Dismiss
Defendant/Counter-Plaintiff’s Counterclaim (ECF No. 30), filed March 19, 2014. The
motion was referred to Magistrate Judge Michael E. Hegarty for a Recommendation by
Order of Reference (ECF No. 65). Magistrate Judge Hegarty issued a Recommendation
(ECF No. 75) on January 27, 2015. The Recommendation is incorporated herein by
reference. See 28 U.S.C. § 636(b)(1)(B); Fed. R. Civ. P. 72(b).
Magistrate Judge Hegarty recommended therein that Plaintiff’s Motion to Dismiss
Defendant/Counter-Plaintiff’s Counterclaim be granted. ECF No. 75 at pp. 1, 7-8. In
sum, Magistrate Judge Hegarty explains that “Defendant has failed to plausibly allege
that Plaintiff engaged in an abuse of process by filing this action or engaging in settlement
negotiations.” Id. at p. 7.
Magistrate Judge Hegarty advised the parties that they had fourteen (14) days to
serve and file written, specific objections to the Recommendation. Despite this

advisement, no objections were filed to the Magistrate Judge's Recommendation. No
objections having been filed, I am vested with discretion to review the Recommendation
“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 to “satisfy [my]self that there is no clear error on the face of the
record.”1 See FED. R. CIV. P. 72(b) Advisory Committee Notes.
Having reviewed the Recommendation (ECF No. 75), I am satisfied that there is no
clear error on the face of the record. I find that the Recommendation is thorough,
well-reasoned, and sound. I agree that Defendant failed to plausibly allege that Plaintiff
engaged in abuse of process by means of filing this suit or partaking in settlement
negotiations. I further agree that Plaintiff’s motion to dismiss the counterclaim should be
granted.
CONCLUSION
For the reasons stated above, it is
ORDERED that the Recommendation of United States Magistrate Judge (ECF No.
75) is AFFIRMED and ADOPTED. Thus, it is
ORDERED that Plaintiff’s Motion to Dismiss Defendant/Counter-Plaintiff’s

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).
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Counterclaim (ECF No. 30) is GRANTED.
Dated: March 5, 2015.
BY THE COURT:

s/ Wiley Y. Daniel
WILEY Y. DANIEL,
SENIOR UNITED STATES DISTRICT JUDGE

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