Ball et al v. USA et al

Filing 41

RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE by Magistrate Judge N. Reid Neureiter on 10/1/2018 re 24 MOTION to Dismiss Under Fed. R. Civ. P. 12(b)(1) and 12(b)(6) filed by Colorado Division of Reclamation, Mining and Safety. (tsher, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 18-cv-01461-REB-NRN
LOGAN BALL,
ELIZABETH BALL,
HANG SIK KIM,
HYUN AH KIM,
ESTATE OF SARAH BALL, and
ESTATE OF PETER KIM,
Plaintiffs,
v.
UNITED STATES OF AMERICA, and
COLORADO DIVISION OF RECLAMATION, MINING, AND SAFETY,
Defendants.
REPORT AND RECOMMENDATION ON
DEFENDANT COLORADO DIVISION OF RECLAMATION, MINING AND SAFETY’S
MOTION TO DISMISS UNDER FED. R. CIV. P. 12(b)(1) AND 12(b)(6)
(DOCKET NO. 24)

N. Reid Neureiter
United States Magistrate Judge

Presently before the Court is Defendant Colorado Division of Reclamation,
Mining and Safety’s Motion to Dismiss Under Fed. R. Civ. P. 12(b)(1) and 12(b)(6)
(Docket No. 42), which Judge Robert E. Blackburn referred to the undersigned
magistrate judge on August 25, 2018 (Docket No. 24). On September 17, 2018,
Plaintiffs Logan Ball, Elizabeth Ball and the Estate of Sarah Ball (the “Plaintiffs”) filed a
Response (Docket No. 35) in which they confessed the subject motion (Docket No. 24).
Plaintiffs represent that, after conferral with CDRMS’s counsel, the parties agree that
Plaintiffs and CDRMS will each bear their own fees and costs related to this matter and
the Motion to Dismiss.
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Accordingly, it is
RECOMMENDED that Defendant Colorado Division of Reclamation, Mining and
Safety’s Motion to Dismiss Under Fed. R. Civ. P. 12(b)(1) and 12(b)(6) (Docket No. 42)
be GRANTED; it is further
RECOMMENDED that Plaintiffs’ First, Third, and Fourth Claims for Relief against
Defendant Colorado Division of Reclamation, Mining and Safety be DISMISSED, with
each party to bear its own fees and costs.
IT IS 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, 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: October 1, 2018
Denver, Colorado

/s/ N. Reid Neureiter
N. Reid. Neureiter
United States Magistrate Judge

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