Opinion
Civil Action 20-cv-00612-RM-NYW
06-22-2021
MARK MINA, as an individual and on behalf of all others similarly situated, Plaintiff, v. RED ROBIN INTERNATIONAL, INC., and RED ROBIN GOURMET BURGERS INC., Defendants.
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE AND ORDER
Nina Y. Wang United States Magistrate Judge
This matter comes before the court on two motions:
(1) Proposed Intervenor John Geraci's (“Mr. Geraci”) Motion to Intervene and Stay this Action Pursuant to the First-to-File Rule (“Motion to Intervene”) [#67, filed May 14, 2020]; and
(2) Plaintiff Mark Mina (“Plaintiff” or “Mr. Mina”) and Defendants Red Robin International, Inc. and Red Robin Gourmet Burgers Inc.'s (“Defendants” or “Red Robin” and collectively with Plaintiff, the “Parties”) Joint Status Report (or “Joint Motion for Extension of Time”) [#91, filed June 16, 2021].
The undersigned considers the Motions pursuant to 28 U.S.C. § 636(b), the Order Referring Case dated March 6, 2020 [#55], and the Memoranda dated May 14, 2020 and June 17, 2021, respectively [#68, #92]. This court concludes that oral argument will not materially assist in the resolution of these matters. Accordingly, having carefully reviewed the Motions and associated briefing [#71, #72, #73], the docket, and applicable law, this court respectfully RECOMMENDS that Mr. Geraci's Motion to Intervene be DENIED as moot, and ORDERS that the Parties' Joint Motion for Extension of Time is GRANTED.
BACKGROUND
Plaintiff initiated this putative class action against Defendants by filing his Complaint in the United States District Court for the Central District of California on November 7, 2018, alleging Defendants' violation of the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227. See [#1]. Defendants subsequently filed a Motion to Transfer Case [#41, filed January 10, 2020], and the Honorable Philip S. Gutierrez granted the same on March 3, 2020 [#50]. The instant action was transferred to the District of Colorado on March 4, 2020, assigned to the Honorable Raymond P. Moore, and drawn to the undersigned Magistrate Judge. [#51, #53, #54]. Upon his assignment, the presiding judge, Judge Moore, referred this action to the undersigned. [#55].
On May 14, 2020, Mr. Geraci filed the instant Motion to Intervene [#67], seeking to intervene in and stay the instant action pending resolution of his first-filed putative class action, Geraci v. Red Robin Int'l, Inc., Civil Action No. 1:19-cv-01826-RM-KLM (D. Colo. Nov. 1, 2018) (“Geraci Action”). The Geraci Action was originally filed in the United States District Court for the District of New Jersey, and later transferred to the District of Colorado on June 24, 2019. See [id. at ECF Nos. 1, 22]. Mr. Geraci asserts that these putative class actions raise virtually identical allegations and claims against the same defendant and, “[b]ecause this action is substantially similar to and consumed by the earlier-filed Geraci Action, this action should be stayed pending disposition of [sic] Geraci Action under the ‘first-to-file rule.'” [#67 at 2 (quoting Rocky Mountain Chocolate Factory, Inc. v. DJRJ, LLC, No. 16-cv-0087-WJM-MEH, 2016 WL 1377160, at *3 (D. Colo. Apr. 7, 2016)) (further citations omitted)]. Plaintiff responded in opposition to the Motion to Intervene [#71], and Mr. Geraci replied [#73].
This court uses the convention of [#__] and the page number assigned by the Electronic Court Filing System (“ECF”) for this District to refer to materials filed in this action. For docket entries from other cases, the court refers to the case number, and then uses the convention [ECF No. __].
Shortly thereafter, Defendants sought a stay of proceedings (“Motion to Stay”) pending a decision by the United States Supreme Court (“Supreme Court”) in Duguid v. Facebook, Inc., 926 F.3d 1146 (9th Cir. 2019), cert. granted, 2020 WL 3865252 (U.S. July 9, 2020) (No. 19-511). [#74, filed July 30, 2020]. Plaintiff filed a statement of non-opposition to Defendants' Motion to Stay and requested that the court withhold ruling on the Motion to Intervene until the Supreme Court decided Duguid. [#76]. Judge Moore granted Defendants' Motion to Stay on August 28, 2020, thereby staying all proceedings in this case, including the pending Motion to Intervene, pending a decision by the Supreme Court in Duguid. [#77].
On April 1, 2021, the Supreme Court issued its opinion in Duguid. No. 19-511, 2021 WL 1215717 (Apr. 1, 2021). Accordingly, Judge Moore lifted the stay and ordered this action proceed. [#82, filed April 8, 2021]. The undersigned held a Telephonic Status Conference with the Parties and Mr. Geraci on April 12, 2021, and ordered the Parties and Mr. Geraci to file a Joint Status Report outlining, from each party's perspective,
(1) whether the party seeks to move forward with this (and its related) action; (2) if a party seeks to pursue this action, what discovery has occurred to date, and the scope and timeline for formal discovery; and (3) the mechanism proposed for resolving whether the technology at issue meets the requirement for TCPA liability as defined by the Supreme Court in Duguid.[#84]. The Parties and Mr. Geraci subsequently sought, and this court granted, several extensions of time to file the requisite Joint Status Report. [#85, #86, #87, #88, #89, #90].
On June 16, 2021, Plaintiff and Defendants filed the instant Joint Motion for Extension of Time. [#91]. Therein, the Parties request an additional 14-day extension of time to submit their Joint Status Report to allow (a) Plaintiff time to evaluate information provided by Red Robin; and (b) the Parties time to meet and confer regarding their positions with respect to pursuing the instant action, and if necessary, the proposed mechanism to resolve whether the technology at issue meets the requirement for TCPA liability as defined in Duguid. [Id.]. The Parties also assert that Mr. Geraci is not a party to the Joint Motion for Extension of Time because the Geraci Action was dismissed on June 11, 2021. [Id. at 1 n.1 (citing Geraci v. Red Robin Int'l, Inc., Civil Action No. 19-cv-01826-RM-KLM (D. Colo.) [ECF No. 98])].
ANALYSIS
This court takes judicial notice of the Geraci Action and associated docket. See Civil Action No. 19-cv-01826-RM-KLM (D. Colo.). There, Mr. Geraci and Red Robin filed a Stipulation of Dismissal of Case on June 11, 2021. [Id. at ECF No. 98]. The action was terminated three days later. [Id. at ECF No. 99]. Given that the instant Motion to Intervene is premised on the existence of the Geraci Action, which has been dismissed, this court finds the Motion to Intervene moot. Accordingly, I respectfully RECOMMEND that the Motion to Intervene be DENIED as moot.
See Fed. R. Evid. 201; Hutchinson v. Hahn, 402 Fed.Appx. 391, 394-95 (10th Cir. 2010) (citing St. Louis Baptist Temple, Inc. v. Fed. Deposit Ins. Corp., 605 F.2d 1169, 1172 (10th Cir. 1979) (observing that a court may take judicial notice of its own records as well of those of other courts, particularly in closely-related cases)).
CONCLUSION
For the reasons set forth herein, this court respectfully RECOMMENDS that:
(1) Proposed Intervenor John Geraci's Motion to Intervene and Stay this Action Pursuant to the First-to-File Rule [#67] be DENIED as moot.
Within fourteen days after service of a copy of this Recommendation, any party may serve and file written objections to the magistrate judge's proposed findings of fact, legal conclusions, and recommendations with the Clerk of the United States District Court for the District of Colorado. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); Griego v. Padilla (In re Griego), 64 F.3d 580, 583 (10th Cir. 1995). A general objection that does not put the district court on notice of the basis for the objection will not preserve the objection for de novo review. “[A] party's objections to the magistrate judge's report and 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. 2121 East 30th Street, 73 F.3d 1057, 1060 (10th Cir. 1996). Failure to make timely objections may bar de novo review by the district judge of the magistrate judge's proposed findings of fact, legal conclusions, and recommendations and will result in a waiver of the right to appeal from a judgment of the district court based on the proposed findings of fact, legal conclusions, and recommendations of the magistrate judge. See Vega v. Suthers, 195 F.3d 573, 579-80 (10th Cir. 1999) (holding that the district court's decision to review magistrate judge's recommendation de novo despite lack of an objection does not preclude application of “firm waiver rule”); Int'l Surplus Lines Ins. Co. v. Wyo. Coal Ref. Sys., Inc., 52 F.3d 901, 904 (10th Cir. 1995) (finding that cross-claimant waived right to appeal certain portions of magistrate judge's order by failing to object to those portions); Ayala v. United States, 980 F.2d 1342, 1352 (10th Cir. 1992) (finding that plaintiffs waived their right to appeal the magistrate judge's ruling by failing to file objections). But see Morales-Fernandez v. INS, 418 F.3d 1116, 1122 (10th Cir. 2005) (holding that firm waiver rule does not apply when the interests of justice require review).
In addition, IT IS ORDERED that.
(1) The Parties' Joint Motion for Extension of Time [#91] is GRANTED; and
(2) The Parties shall file a Joint Status Report by no later than June 30, 2021, outlining from each party's perspective (1) whether the party seeks to move forward with this action; (2) if a party seeks to pursue this action, what discovery has occurred to date, and the scope and timeline for formal discovery, if any; and (3) the mechanism proposed for resolving whether the technology at issue meets the requirements for TCPA liability as defined by the United States Supreme Court in Facebook v. Duguid, No. 19-511, 2021 WL 1215717 (Apr. 1, 2021). No further extensions shall be granted absent extraordinary circumstances.