Free Order on Report and Recommendations - District Court of Colorado - Colorado

Case 1:04-cv-01262-WYD-PAC

Document 7

Filed 10/18/2005

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Judge Wiley Y. Daniel Civil Action No. 04-cv-01262-WYD-PAC JAMES MORAN; and PAMELA MORAN, Plaintiffs, v. THE INTERNAL REVENUE SERVICE; MICHELLE HAGEMAN; MICHELLE GARCIA; RICHARD PTAK; JOHN HARRISON; PATRICK MALONEY, a/k/a PATRICK MALLORY; MICHAEL PRIEST, a/k/a MICHAEL JORDAN; JAMES DOWLING, a/k/a JAMES MITCHELL; DIANE TAGGERT, a/k/a DIANE TARGET; and JOHN DOES 1-100, Defendants. _____________________________________________________________________ ORDER OF DISMISSAL _____________________________________________________________________ THIS MATTER is before the Court on Plaintiffs' Notice of Dismissal Pursuant to F.R.C.P. 41(a)(1)(I). In the Notice, Plaintiffs seek a dismissal of the case without prejudice pursuant to Rule 41(a)(1)(I), stating that no adverse party has entered an appearance or filed an answer. This Notice was filed shortly after Magistrate Judge Coan issued a Recommendation of United States Magistrate Judge on October 6, 2005. It is recommended therein that the case be dismissed with prejudice for Plaintiffs' failure to

Case 1:04-cv-01262-WYD-PAC

Document 7

Filed 10/18/2005

Page 2 of 2

effect service within 120 days of the filing of the complaint as required by FED. R. CIV. P. 4(m). The Court, having reviewed both the Recommendation and the Notice, finds that the Recommendation should be affirmed and adopted and this case should be dismissed with prejudice. Plaintiffs' Notice does not reference the Recommendation or attempt to respond to it. Further, Plaintiffs did not file actual objections to the Recommendation. I find that the Notice is an improper attempt to have this case dismissed without prejudice despite the Recommendation that the case be dismissed with prejudice. This is not a case where Defendants have simply yet not filed an answer. Instead, as the Recommendation notes, Plaintiffs failed to serve Defendants within 120 days as required by Rule 4(m). Accordingly, I find that the Recommendation should be affirmed and adopted and this case should be dismissed with prejudice. In conclusion, it is ORDERED that the Recommendation of United States Magistrate Judge filed October 6, 2005, is AFFIRMED AND ADOPTED. In accordance therewith, it is ORDERED that this case is DISMISSED WITH PREJUDICE. Dated: October 18, 2005 BY THE COURT:

s/ Wiley Y. Daniel Wiley Y. Daniel U. S. District Judge

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