Nicewonder v. Ferguson Enterprises, LLC

Opinion

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Senior Judge Christine M. Arguello

Civil Action No. 22-cv-01062-CMA-KLM

AVALON NICEWONDER,

Plaintiff,

v.

FERGUSON ENTERPRISES, LLC,

Defendant.

ORDER ADOPTING AND AFFIRMING JANUARY 17, 2023 RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

This matter is before the Court on the January 17, 2023 Recommendation of United States Magistrate Judge (Doc. # 34), wherein Magistrate Judge Kristen L. Mix recommends that Defendant Ferguson Enterprises, LLC’s Partial Motion to Dismiss Plaintiff’s First Amended Complaint and Request for Jury Trial (Doc. # 19) be granted. The Recommendation is incorporated herein by reference. See 28 U.S.C. § 636(b)(1)(B); Fed. R. Civ. P. 72(b). The Court affirms and adopts the Recommendation for the following reasons. The Recommendation advised the parties that specific written objections were due within fourteen (14) days after being served with a copy of the Recommendation. (Doc. # 34 at 19–20.) Despite this advisement, no objection to Magistrate Judge Mix’s Recommendation has been filed. “[T]he district court is accorded considerable discretion with respect to the treatment of unchallenged magistrate reports. In the absence of timely objection, the district court may review a magistrate [judge’s] report under any standard it deems appropriate.” Summers v. Utah, 927 F.2d 1165, 1167 (10th Cir. 1991) (citing 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”)). After reviewing the Recommendation of Magistrate Judge Mix, in addition to applicable portions of the record and relevant legal authority, the Court is satisfied that

the Recommendation is sound and not clearly erroneous or contrary to law. See Fed. R. Civ. P. 72(a). Accordingly, the Court ORDERS as follows: • The January 17, 2023 Recommendation of United States Magistrate Judge (Doc. # 34) is AFFIRMED and ADOPTED as an order of this Court; and • Defendant Ferguson Enterprises, LLC’s Partial Motion to Dismiss Plaintiff’s First Amended Complaint and Request for Jury Trial (Doc. # 19) is GRANTED. • Accordingly, Plaintiff Avalon Nicewonder’s Claim One and Claim Five are DISMISSED WITH PREJUDICE1 to the extent they are premised on unfavorable work assignments and her Performance Improvement Plan; and

1 A dismissal with prejudice is appropriate where a complaint fails to state a claim under Rule 12(b)(6) and granting leave to amend would be futile. Brereton v. Bountiful City Corp., 434 F.3d 1213, 1219 (10th Cir. 2006). e Plaintiff's Claims Two, Three, Four, Six, Seven, and Eight are DISMISSED WITH PREJUDICE in their entirety. DATED: February 2, 2023. BY THE COURT:

CHRISTINE M. ARGUELLO Senior United States District Judge