Aday v. Capital One Bank, (USA) NA. et al

Filing 54

ORDER adopting 49 Report and Recommendations.; granting 12 Motion for More Definite Statement; granting in part and denying in part 23 Motion to Dismiss by Judge R. Brooke Jackson on 2/26/19. (jdyne, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge R. Brooke Jackson
Civil Action No.: 18-cv-001272-RBJ-KMT
LORENA ADAY,
Plaintiff,
v.
CAPITAL ONE BANK, (USA) NA,
MACHOL & JOHANNES, LLC,
RANDALL D. JOHANNES,
JACQUES A. MACHOL, III, and
HEATHER L. CANNON
Defendants.

ORDER

This matter is before the Court on the January 3, 2018 Recommendation of Magistrate
Judge Kathleen M. Tafoya, ECF No. 49. The Recommendation addresses a motion for a more
definite statement, ECF No. 21, filed by defendants Heather Cannon, Randall Johannes, Machol
and Johannes, LLC, and Jacques Machol III [the “law firm defendants”] and a motion to dismiss,
ECF No. 23, filed by defendant Capital One Bank [“Capital One’].1 Judge Tafoya recommends
that I grant the law firm defendants’ motion for a more definite statement. Judge Tafoya also
recommends that I grant Capital One’s motion to dismiss with regard to plaintiff’s claims under
the federal and state Fair Debt Collection Practices Act (FDCPA) and 15 U.S.C. § 1681s-(a), but
deny the motion to dismiss with regard to plaintiff’s claims under 15 U.S.C. § 1681s-2(b) to give

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Law firm defendants sought leave to join Capital One’s motion to dismiss and Judge Tafoya granted this motion.
ECF No. 31, 33. For simplicity, I will continue to refer to the motion to dismiss, ECF No. 23 as the Capital One
motion to dismiss, noting that the law firm defendants have joined this motion.

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plaintiff an opportunity to remedy this claim with a more definite statement. The
Recommendation is incorporated herein by reference. See 28 U.S.C. § 636(b)(1)(B); Fed. R.
Civ. P. 72(b).
The Recommendation advised the parties that specific written objections were due within
fourteen (14) days after being served with a copy of the Recommendation and that failure to
make timely objections may bar de novo review by the district judge of the magistrate judge’s
proposed findings and recommendations. ECF No. 49 at 11. Despite this advisement, plaintiff
did not file any objections.
“In the absence of timely objection, the district court may review a magistrate . . .
[judge's] report under any standard it deems appropriate.” Summers v. Utah, 927 F.2d 1165,
1167 (10th Cir.1991) (citing 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”).
The Court has reviewed the Recommendation. Based on this review, the Court concludes
that the Magistrate Judge’s analyses and recommendations are correct, and that “there is no clear
error on the face of the record.” Fed. R. Civ. P. 72 advisory committee’s note. Within its
discretion, the Court has also conducted a de novo review of Judge Tafoya’s Recommendation.
Based upon that review, which involved reading the plaintiff’s complaint, ECF No. 1, the law
firm defendants’ motion for a more definite statement, ECF No. 12, the plaintiff’s response to
that motion, ECF No. 21, Capital One’s motion to dismiss, ECF No. 23, the plaintiff’s response,
ECF No. 26, and Capital One’s reply, ECF No. 36, I agree Judge Tafoya’s conclusions.

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Therefore, the Court ADOPTS the Recommendation as the findings and conclusions of this
Court.
Accordingly, it is ORDERED that the Recommendation of United States Magistrate
Judge Tafoya [ECF No. 49] is AFFIRMED and ADOPTED. Accordingly, the motion for a more
definite statement [ECF No. 21] is GRANTED and the motion to dismiss [ECF No. 23] is
GRANTED IN PART and DENIED IN PART.
DATED this 26th day of February, 2019.
BY THE COURT:

___________________________________
R. Brooke Jackson
United States District Judge

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