Andrion v. Renaissance Memory Care, LLC et al

Filing 34

RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE re 31 MOTION to Dismiss by Magistrate Judge Kristen L. Mix on 11/6/18. The Court respectfully RECOMMENDS that Plaintiff's Motion to Dismiss 31 be GRANTED, and that this action be DISMISSED without prejudice pursuant to Fed. R. Civ. P. 41(a)(2). (lgale, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 17-cv-02395-CMA-KLM
ALEX ANDRION,
Plaintiff,
v.
RENAISSANCE MEMORY CARE, LLC,
SAFE AT HOME RESIDENCES, LLC,
ASHLEY FYFE, and
KENAN FYFE,
Defendants.
_____________________________________________________________________
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
_____________________________________________________________________
ENTERED BY MAGISTRATE JUDGE KRISTEN L. MIX
This matter is before the Court on Plaintiff’s Motion to Dismiss Without Prejudice
[#31]1 (the “Motion”). The Motion [#31] has been referred to the undersigned for a
recommendation regarding disposition pursuant to 28 U.S.C. § 636(b)(1) and
D.C.COLO.L.CivR 72.1(c). See [#32]. No Response has been filed. For the reasons set
forth below, the Court recommends that the Motion [#31] be GRANTED.
In the Motion [#31], Plaintiff seeks to dismiss this case without prejudice pursuant
to Fed. R. Civ. P 41(a)(2). That rule provides that “an action may be dismissed at the
plaintiff’s request only by court order, on terms that the court considers proper.” Fed. R.
Civ. P 41(a)(2). Voluntary dismissals pursuant to Fed.R.Civ.P. 41(a)(2) “are committed to

1

“[#31]” is an example of the convention the Court uses to identify the docket number
assigned to a specific paper by the Court's electronic case filing and management system
(CM/ECF). This convention is used throughout this Recommendation.

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the sound discretion of the Court.” Eighth Dist. Elec. Pension Fund v. Ludvik Elec. Co., No.
06-cv-1299-WDM-MEH, 2007 WL 496687, at *1 (D. Colo. Feb. 12, 2007). “Absent
prejudice to the defendant[s], the court normally should grant such a request for dismissal.”
Carter v. Noodles & Co., No. 16-CV-00319-CMA-KMT, 2016 WL 3636833, at *2 (D. Colo.
June 29, 2016) (citing Ohlander v. Larson, 114 F.3d 1531, 1537 (10th Cir. 1997)).
Relevant factors to consider when assessing legal prejudice include insufficient explanation
of the need for a dismissal; the opposing parties’ effort and expense in preparing for trial;
the present stage of the litigation; and excessive delay and lack of diligence on the part of
the movant. Id. (quoting Ohlander, 114 F.3d at 1537).
Plaintiff states that he has elected to move for dismissal because “Defendants have
declined to continue participating in this litigation.” Motion [#31] at 1. As Plaintiff correctly
observes, the Court granted Defendants’ counsel’s Motion to Withdraw as Counsel of
Record [#22] on June 18, 2018. Minute Order [#24]. In doing so, the Court ordered
Defendants Ashley Fyfe and Kenan Fyfe to confirm their mailing addresses, e-mail
addresses, and telephone numbers on or before June 25, 2018. Id. at 2. The Court also
ordered Defendants Renaissance Memory Care, LLC and Safe at Home Residences, LLC
to comply with D.C.COLO.LAttyR 5(b) by having new counsel enter an appearance on or
before July 18, 2018. Id. Since the date of that Minute Order [#24], Defendants have failed
to comply with either order and have not made any other filings in this case.2
As indicated in Plaintiff’s Status Report [#30], filed on August 16, 2018, Plaintiff’s

2

Attorney Michael Poindexter entered an appearance on behalf of Defendant Kenan Frye
on September 4, 2018. See [#33]. Since that time, however, the Court has not received any filing
or communication from Defendant Kenan Frye.

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counsel is clearly aware of the methods available for proceeding with the litigation and
obtaining a default judgment under the Federal Rules of Civil Procedure. Nevertheless,
Plaintiff has voluntarily chosen to request dismissal of his case and the Court finds no
reason to deny Plaintiff of this request. Despite the late stage of this litigation, it does not
appear that Plaintiff has acted with excessive delay or with a lack of diligence. Plaintiff filed
the present Motion [#31] on August 23, 2018, shortly after Defendants ceased participation
in this case by failing to comply with the Court’s Minute Order [#24] of June 18, 2018. For
these reasons, and in the absence of any argument to the contrary, the Court concludes
that dismissing this case without prejudice would not cause legal prejudice to Defendants.
Accordingly,
The Court respectfully RECOMMENDS that Plaintiff’s Motion to Dismiss [#31] be
GRANTED, and that this action be DISMISSED without prejudice pursuant to Fed. R. Civ.
P. 41(a)(2).
THE COURT FURTHER RECOMMENDS that taxable costs of this action be
determined by the Clerk as provided by D.C.COLO.LCivR 54.1, and that payment of such
costs be a condition to Plaintiff filing a future action based on or including the same claims
against the same Defendants, pursuant to Fed. R. Civ. P. 41(d).
IT IS HEREBY ORDERED that pursuant to Fed. R. Civ. P. 72, the parties shall have
fourteen (14) days after service of this Recommendation to serve and file any written
objections in order to obtain reconsideration by the District Judge to whom this case is
assigned. A party’s failure to serve and file specific, written objections waives de novo
review of the Recommendation by the District Judge, Fed. R. Civ. P. 72(b); Thomas v. Arn,

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474 U.S. 140, 147-48 (1985), and also waives appellate review of both factual and legal
questions. Makin v. Colo. Dep’t of Corr., 183 F.3d 1205, 1210 (10th Cir. 1999); Talley v.
Hesse, 91 F.3d 1411, 1412-13 (10th Cir. 1996).

A party’s objections to this

Recommendation must be both timely and specific to preserve an issue for de novo review
by the District Court or for appellate review. United States v. One Parcel of Real Prop., 73
F.3d 1057, 1060 (10th Cir. 1996).

Dated: November 6, 2018

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