Opinion
Civil Action No. 11-cv-02430-WYD-KMT
04-10-2012
LUCAS DeMAESTRI, Plaintiff, v. VERIFACTs, INC., Defendant.
Chief Judge Wiley Y. Daniel
ORDER AFFIRMING AND ADOPTING
MAGISTRATE JUDGE'S RECOMMENDATION
THIS MATTER is before the Court in connection with Defendant's Motion for Summary Judgment Pursuant to Fed. R. Civ. P. 56(a) filed November 22, 2011 and Plaintiff's pro se Opposed Motion for Leave to File Amended Complaint filed January 12, 2012. These motions were referred to Magistrate Judge Tafoya for a recommendation.
A Recommendation of United States Magistrate Judge was issued on March 16, 2012, which is incorporated herein by reference. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). Magistrate Judge Tafoya first recommends therein that Defendant's Motion for Summary Judgment be granted in part and denied in part; namely, that it be granted as to Plaintiff's claim under the Federal Debt Collection Practices Act ["FDCPA"] and denied as to Plaintiff's Fair Credit Reporting Act ["FCRA"] claim. (Recommendation at 8-12, 14-16.) Specifically, as to the FDCPA claim, she finds that summary judgment should be granted because Plaintiff failed to show that Defendant is a debt collector as required under the Act. (Id. 14-16.) As to the FCRA claim, she finds that summary judgment should be denied because "the scant facts, and Defendant's palpable omission of other important facts, fail to rise to the level of demonstrating that there is no genuine dispute as to whether Defendant has a permissible purpose for obtaining Plaintiff's credit report." (Id. 8-12.)
While Magistrate Judge Tafoya rejected Defendant's summary judgment arguments as to the FCRA claim, she nonetheless finds that the claim fails to state a claim for relief because it fails to satisfy two of the elements of such a claim. (Recommendation at 12-13.) Accordingly, she recommends that the FCRA claim be dismissed sua sponte. (Id.)
Finally, Magistrate Judge Tafoya recommends that Plaintiff's motion for leave to file an amended complaint be denied. (Id. at 16-19.) She finds that the amended complaint fails to cure the deficiencies in his claims, and that the amendment would be futile. (Id.)
Magistrate Judge Tafoya advised the parties that specific written objections were due within fourteen (14) days after service of the Recommendation. (Recommendation at 3-4.) Despite this advisement, no objections were filed to the Recommendation. No objections having been filed, I am vested with discretion to review the Recommendation "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 to "satisfy [my]self that there is no clear error on the face of the record." See 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, I am satisfied that there is no clear error on the face of the record. I agree with Magistrate Judge Tafoya's analysis regarding the two motions and find that the Recommendation should be affirmed in its entirety. Accordingly, it is
ORDERED that the Recommendation of United States Magistrate Judge dated March 16, 2012 (ECF No. 27) is AFFIRMED and ADOPTED. In accordance therewith, it is
ORDERED that Defendant's Motion for Summary Judgment Pursuant to Fed. R. Civ. P. 56(a) filed November 22, 2011 (ECF No. 11) is GRANTED IN PART AND DENIED IN PART. It is GRANTED as to Plaintiff's claim under the Federal Debt Collection Practices Act and denied as to Plaintiff's claim under the Federal Fair Credit Reporting Act. It is
FURTHER ORDERED that Plaintiff's claim under the Fair Credit Reporting Act is dismissed sua sponte pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state a claim upon which relief can be granted. It is
FURTHER ORDERED that Plaintiffs [sic] Opposed Motion for Leave to File Amended Complaint filed January 12, 2012 (ECF No. 23) is DENIED. Finally, it is
ORDERED that since no claims remain in the case, this case shall be terminated.
BY THE COURT:
_________________
Wiley Y. Daniel
Chief United States District Judge