Eguakun v. Gutso, Inc.

Filing 50

ORDER adopting 49 Report and Recommendation and granting Defendant's 43 Motion to Dismiss Plaintiff's Amended Complaint. For the reasons set forth in the attached Order, the Court DISMISSES WITH PREJUDICE Plaintiff's 42 Amended Complaint. The Clerk of Court is ORDERED to terminate this case.SO ORDERED by Judge S. Kato Crews on 1/7/2025. (skclc3)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
District Judge S. Kato Crews
Civil Action No. 1:23-cv-01713-SKC-STV
BRITTNEY VICTORIA EGUAKUN,
Plaintiff,
v.
GUTSO, INC.,
Defendant.

ORDER ADOPTING REPORT AND RECOMMENDATION (DKT. 49)
RE: MOTION TO DISMISS (DKT. 43)
Now before the Court is the Recommendation of Chief Magistrate Judge Scott
T. Varholak (Dkt. 49) that recommends the Court grant Defendant Gutso, Inc.’s
Motion to Dismiss Plaintiff’s Amended Complaint (MTD) (Dkt. 43). As explained
below, because the Court has satisfied itself that there is no clear error on the face of
the record, the Court AFFIRMS and ADOPTS the Recommendation.
BACKGROUND
Plaintiff Brittney Eguakun was an employee of Defendant from August 6,
2018, to April 1, 2022, when Defendant terminated her employment. Dkt. 42, p.6. Her
Amended Complaint (Dkt. 42) alleges race and sex discrimination, and retaliation,
all in violation of Title VII (Counts 1, 2, and 3), and failure to accommodate her ADHD

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and General Anxiety Disorder in violation of the Americans with Disabilities Act
(ADA) (Count 4). Dkt. 42, pp.3-5.
Previously, the Court dismissed Plaintiff’s original Complaint after affirming
and adopting an earlier Report and Recommendation from Judge Varholak. The
earlier dismissal was based on the Complaint’s failure to allege sufficient facts to
support Plaintiff’s claims. The Court allowed Plaintiff time to file an amended
complaint to address the deficiencies in the original. Dkt. 41, p.4. Plaintiff filed her
Amended Complaint, and Defendant again filed a motion to dismiss. This Court
referred the MTD to the magistrate judge.
Upon referral, Judge Varholak considered the MTD and the Amended
Complaint, along with Plaintiff’s Response (Dkt. 45) and Defendant’s Reply (Dkt. 48).
He again recommends granting the MTD and dismissing the Amended Complaint,
this time with prejudice, because he recommends finding the Amended Complaint
fails to redress the shortcomings of the original Complaint. Dkt. 49, p.18. Since
Plaintiff is not represented by counsel, the Court has construed her filings liberally
but without acting as her advocate, as did Judge Varholak.
FINDINGS AND ORDERS
The Recommendation advised the parties they had 14 days after service of the
Recommendation to serve and file specific written objections to it for this Court’s
consideration, citing 28 U.S.C. § 636(b)(1) and Fed. R. Civ. P. 72(b). No party filed

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objections. As a result, they have waived de novo review by this Court. Thomas v.
Arn, 474 U.S. 140, 148-53 (1985).
When no party files objections, the district court may review a magistrate
judge’s recommendation under any standard it deems fit. See Summers v. Utah, 927
F.2d 1165, 1167 (10th Cir. 1991); see also Thomas, 474 U.S. at 150 (“It 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, therefore, reviews the Recommendation to satisfy
itself that there is “no clear error on the face of the record.” Fed. R. Civ. P. 72(b), 1983
Advisory Committee Notes. This standard of review is something less than a “clearly
erroneous or contrary to law” standard of review, which in turn is less than a de novo
review. See Fed. R. Civ. P. 72(a) and (b).
The Recommendation is detailed and thorough and contains no clear error on
the face of the record. And it correctly applies the law. In it, Judge Varholak describes
the law controlling each of Plaintiff’s claims, and further aptly explains how and why
the allegations in the Amended Complaint fail to plausibly allege one or more of the
elements of each of those claims. See generally Dkt. 49, pp.8-17. Moreover, he notes
that these failures are the same deficiencies the Court previously identified when
analyzing the prior complaint and ruling on Defendant’s earlier motion to dismiss;
thus, he recommends each claim now be dismissed with prejudice. Id. at pp.11, 13,
17.
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This Court has reviewed the Recommendation and the entire record in this
case and finds the Recommendation is well-reasoned and a correct application of the
facts and the law to the circumstances presented. Finding “no clear error on the face
of the record,” this Court AFFIRMS and ADOPTS the Recommendation and GRANTS
the MTD.
Because the Amended Complaint failed to address the deficiencies the Court
identified and explained to Plaintiff that existed in her original Complaint, the Court
ORDERS the dismissal of Plaintiff’s claims in the Amended Complaint WITH
PREJUDICE. See Stinson ex rel. United States v. Maynard, 341 F. App’x 413, 417
(10th Cir. 2009) (citing Sheldon v. Vermonty, 269 F.3d 1202, 1207 n.5 (10th Cir. 2001)
(dismissal with prejudice appropriate when amended complaint fails to address
previously identified deficiencies)). It is FURTHER ORDERED that the Clerk of
Court shall terminate this case.
DATED: January 7, 2025.
BY THE COURT:
_______________________________
S. Kato Crews
United States District Judge

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