Garza v. Western Stone of Lyons, LLC et al.

Filing 39

ORDER ADOPTING 33 RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE: The Motion to Dismiss is DENIED. By Judge Robert E. Blackburn on 11/20/2014.(alowe)

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Judge Robert E. Blackburn Civil Action No. 14-cv-01953-REB-BNB ELOY GARCIA, Plaintiff, v. WESTERN STONE OF LYONS, LLC, and PAUL W. FRYSIG, Defendants. ORDER ADOPTING RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE Blackburn, J. The matter before me is the Recommendation of United States Magistrate Judge [#33],1 filed October 27, 2014. No objections having been filed to the recommendation, I review it only for plain error. See Morales-Fernandez v. Immigration & Naturalization Service, 418 F.3d 1116, 1122 (10th Cir. 2005).2 Finding no such error in the recommended disposition, I find and conclude that the magistrate judge’s recommendation should be approved and adopted. 1 “[#33]” is an example of the convention I use to identify the docket number assigned to a specific paper by the court’s case management and electronic case filing system (CM/ECF). I use this convention throughout this order. 2 This standard pertains even though plaintiff was proceeding pro se at the time he filed the apposite motion to dismiss. Morales-Fernandez, 418 F.3d at 1122. (Defendant since has secured counsel both for himself and his company, defendant Western Stone of Lyons, LLC. See Notice of Entry of Appearance of Counsel for Defendants [#34], filed November 6, 2014.) Nevertheless, because plaintiff previously was proceeding pro se, I have construed his pleadings more liberally and held them to a less stringent standard than formal pleadings drafted by lawyers. See Erickson v. Pardus, 551 U.S. 89, 94, 127 S. Ct. 2197, 2200, 167 L.Ed.2d 1081 (2007); Andrews v. Heaton, 483 F.3d 1070, 1076 (10th Cir. 2007); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991) (citing Haines v. Kerner, 404 U.S. 519, 520-21, 92 S.Ct. 594, 595-96, 30 L.Ed.2d 652 (1972)). THEREFORE, IT IS ORDERED as follows: 1. That the Recommendation of United States Magistrate Judge [#33], filed October 27, 2014, is APPROVED AND ADOPTED as an order of this court; and 2. That the corresponding Motion To Dismiss [#26], filed October 9, 2014, is DENIED insofar as it is submitted on behalf of defendant, Paul W. Frysig.3 Dated November 20, 2014, at Denver, Colorado. BY THE COURT: 3 The magistrate judge properly struck the motion to the extent it purported to be filed on behalf of the corporate defendant by Mr. Frysig acting pro se. (See Order [#32], filed October 27, 2014.) 2

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