Opinion
Civil Action No. 12-cv-00676-WYD-KMT
2013-09-29
BARRY O'NEILL; Plaintiff, v. CALIFORNIA FARMS, INC.; JAMES ROBERTS; and, DAN FANTZ, Defendants.
Senior Judge Wiley Y. Daniel
ORDER AFFIRMING AND ADOPTING RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
THIS MATTER is before the Court on: (1) plaintiff, Barry O'Neill's, Motion For Entry Of Default And Default Judgment [ECF No. 8]; (2) plaintiff, Barry O'Neill's, Motion For Entry Of Default And Default Judgment Against Defendant Dan Fantz [ECF No. 28]; (3) defendant, Dan Fantz's, Motion To Dismiss Pursuant To FRCP Rule 12(b)(2) [Lack Of Personal Jurisdiction] and Rule 12(b)(3) [Improper Venue] Or, In The Alternative, To Transfer From Improper Venue [28 USC § 1406(a)] Or To Transfer For Convenience [28 USC § 1404(a)] [ECF No. 31]; (4) plaintiff, Barry O'Neill's, Motion To Strike Defendant's Motion To Dismiss And Re-Urging Motion For Default Judgment [ECF No. 32]; and, (5) Magistrate Judge Tafoya's Amended Recommendation [ECF No. 38], which incorporates a recommendation on all pending motions in this matter. Magistrate Judge Tafoya's Recommendation [ECF No. 38] is incorporated herein by reference. See 28 U.S.C. § 636(b)(1), FED. R. CIV. P. 72(b), D.C.COLO.LCivR. 72.1.
Magistrate Judge Tafoya issued her Recommendation [ECF No. 38] on February 14, 2013. She advised the parties that they had 14 days after service of a copy of the Recommendation [ECF No. 38] to file objections. ECF No. 38, pp. 37-38. As of Monday, September 30, 2013, no objections have been filed. No objections having been filed, I am vested with discretion to review the Recommendation [ECF No. 38] "under any standard [I] deem[] appropriate." Summers v. Utah, 927 F.2d 1165, 1167 (10th Cir. 1991); see also 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"). Nonetheless, though not required to do so, I review the Recommendation [ECF No. 38] to "satisfy [my]self that there is no clear error on the face of the record." FED. R. CIV. P. 72(b) Advisory Committee Notes.
Note, this standard of review is something less than a "clearly erroneous or contrary to law" standard of review, FED. R. CIV. P. 72(a), which in turn is less than a de novo review, FED. R. CIV. P. 72(b).
Having reviewed the Recommendation [ECF No. 38], I am satisfied that there is no clear error on the face of the record. I find that Magistrate Judge Tafoya's Recommendation [ECF No. 38] is thorough, well-reasoned, and sound and I agree with the recommendations contained therein. Accordingly, it is
ORDERED that Magistrate Judge Tafoya's Recommendation [ECF No. 38] is AFFIRMED and ADOPTED. Therefore, it is
FURTHER ORDERED that O'Neill's Motion For Entry Of Default And Default Judgment [ECF No. 8] and Motion For Entry Of Default And Default Judgment Against Defendant Dan Fantz [ECF No. 28] are GRANTED IN PART and DENIED IN PART. The motions are GRANTED to the extent O'Neill seeks judgment on his first through twelfth claims for relief (the securities claims). As to those claims, JUDGMENT IS ENTERED against the defendants, California Farms, Inc., James Roberts, and Dan Fantz, jointly and severally, for the sum of $100,000, plus interest. The motions are DENIED to the extent that O'Neill seeks judgment on his thirteenth and fourteenth claims (fraudulent misrepresentation and breach of fiduciary duty), and those claims are DISMISSED WITH PREJUDICE. The motions are DENIED WITHOUT PREJUDICE to the extent that O'Neill seeks attorney fees. If O'Neill wishes to request attorney fees, he shall file an appropriate motion under Rule 54(d)(2) of the FEDERAL RULES OF CIVIL PROCEDURE and D.C.COLO.LCivR 54.3. It is
FURTHER ORDERED that defendant, Dan Fantz's, Motion To Dismiss Pursuant To FRCP Rule 12(b)(2) [Lack Of Personal Jurisdiction] and Rule 12(b)(3) [Improper Venue] Or, In The Alternative, To Transfer From Improper Venue [28 USC § 1406(a)] Or To Transfer For Convenience [28 USC § 1404(a)] [ECF No. 31] is DENIED. It is
FURTHER ORDERED that O'Neill's Motion To Strike Defendant's Motion To Dismiss And Re-Urging Motion For Default Judgment [ECF No. 32] is GRANTED IN PART and DENIED IN PART. The motion is GRANTED to the extent O'Neill seeks judgment in his favor, and JUDGMENT IS ENTERED in his favor as outlined in this Order. The Motion is DENIED to the extent O'Neill seeks to strike Fantz's, Motion To Dismiss Pursuant To FRCP Rule 12(b)(2) [Lack Of Personal Jurisdiction] and Rule 12(b)(3) [Improper Venue] Or, In The Alternative, To Transfer From Improper Venue [28 USC § 1406(a)] Or To Transfer For Convenience [28 USC § 1404(a)] [ECF No. 31].
Magistrate Judge Tafoya recommended that this motion be denied and I agree with that recommendation. However, in this motion, O'Neill renews his argument for entry of default judgment in his favor. Because I grant default judgment in O'Neill's favor, this motion should be granted to the extent that he seeks default judgment.
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BY THE COURT:
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Wiley Y. Daniel
Senior U. S. District Judge