Sladek et al v. Bank of America, N.A. et al
ORDER by Judge Philip A. Brimmer on 8/25/15. ORDERED that the Recommendation of United States Magistrate Judge 135 is ACCEPTED. It is furtherORDERED that plaintiffs Diana Sladek and Dennis Sladek's Motion to AmendComplaint 130 is DENIED. ORDERED: Within 14 days of the entry of judgment, defendants may have their costs by filing a bill of costs with the Clerk of the Court. ORDERED: This case is dismissed in its entirety.(kpreu)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 13-cv-03094-PAB-MEH
DIANA SLADEK and
BANK OF AMERICA, N.A.,
ARONOWITZ & MECKLENBURG,
MERS, a division of MERSCORP, and
ROBERT ARONOWITZ, individually,
This matter is before the Court on the Recommendation of United States
Magistrate Judge filed on November 5, 2014 [Docket No. 135] (the “Recommendation”).
The magistrate judge recommends that the Court deny plaintiffs’ Motion to Amend
Complaint [Docket No. 130]. Plaintiffs filed a timely objection to the Recommendation.
Docket No. 137. The Court will “determine de novo any part of the magistrate judge’s
disposition that has been properly objected to.” Fed. R. Civ. P. 72(b)(3). In the
absence of a proper objection, the Court may review a magistrate judge’s
recommendation under any standard it deems appropriate. See Summers v. Utah, 927
F.2d 1165, 1167 (10th Cir. 1991); see also Thomas v. Arn, 474 U.S. 140, 150 (1985)
(“[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”). An objection is proper if it is specific enough to
enable the Court “to focus attention on those issues–factual and legal–that are at the
heart of the parties’ dispute.” United States v. 2121 East 30th Street, 73 F.3d 1057,
1059 (10th Cir. 1996). In light of plaintiffs’ pro se status, the Court construes their
filings liberally. See Haines v. Kerner, 404 U.S. 519, 520 (1972); Hall v. Bellmon, 935
F.2d 1106, 1110 & n.3 (10th Cir. 1991).
The magistrate judge recommended that the Court deny plaintiffs’ Motion for
Leave to Amend Complaint on the grounds that amendment would be futile.
Specifically, the magistrate judge found that plaintiffs’ new allegations, which allege
misconduct on the part of defendant Aronowitz & Mecklenburg based upon an
investigation by the Colorado Attorney General’s Office, do not state a plausible claim
for relief for two reasons. First, the magistrate judge found that plaintiffs do not explain
how they themselves were damaged and are entitled to relief for any of Aronowitz &
Mecklenburg’s alleged conduct. Second, the magistrate judge found that the new
claims that plaintiffs assert in the amended complaint do not relate to the allegations
concerning Aronowitz & Mecklenburg. See Docket No. 135 at 8-10. Additional relevant
facts are set forth in detail in the Recommendation, see id. at 1-5, and will not be
Plaintiffs object that the Recommendation improperly decides the case on the
merits. Docket No. 137 at 4. Plaintiffs further state that, with respect to the
Recommendation’s findings, upon reading of the complaint “from cover to cover,” it
“clearly satis[fies] any argument for failure to state a claim or failure to plead with
particularity.” Id. at 5. Defendants respond that plaintiffs’ objection is not specific and
merely repeats the arguments that plaintiffs made in their motions to amend. Docket
No. 138 at 5. The Court agrees with defendants. Plaintiffs do not point to any specific
error with the Recommendation’s findings, and instead direct the Court to read the
complaint “from cover to cover.” Docket No. 137 at 5. Plaintiffs’ objections do not
identify any allegation in the proposed amended complaint where plaintiffs claim
personal injury due to the new allegations concerning Aronowitz & Mecklenburg’s
conduct and do not explain how these new allegations relate to the amended
complaint’s new claims. See id. at 5-6. Plaintiffs’ objection is therefore not specific
enough to enable the Court “to focus attention on those issues–factual and legal–that
are at the heart of the parties’ dispute,” 2121 East 30th Street, 73 F.3d at 1059, and is
not properly before the Court. In the absence of a proper objection, the Court has
reviewed the Recommendation and is satisfied that there is “no clear error on the face
of the record”1 with respect to the Recommendation’s findings. Fed. R. Civ. P. 72(b),
Advisory Committee Notes.
Wherefore, it is
ORDERED that the Recommendation of United States Magistrate Judge [Docket
No. 135] is ACCEPTED. It is further
ORDERED that plaintiffs Diana Sladek and Dennis Sladek’s Motion to Amend
Complaint [Docket No. 130] is DENIED. It is further
ORDERED that, within 14 days of the entry of judgment, defendants may have
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).
their costs by filing a bill of costs with the Clerk of the Court. It is further
ORDERED that this case is dismissed in its entirety.
DATED August 25, 2015.
BY THE COURT:
s/Philip A. Brimmer
PHILIP A. BRIMMER
United States District Judge
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