REPORT AND RECOMMENDATION ON DEFENDANT TOM NORRIS'S MOTION TO DISMISS (Docket No. 45)

MICHAEL J. WATANABE, Magistrate Judge.

This case is before this court pursuant to an Order of Reference to Magistrate Judge issued by Judge Christine M. Arguello on June 4, 2014 (Docket No. 8).

BACKGROUND

The original Complaint in this case was filed on May 23, 2014 (Docket No. 1). Amended Complaints were filed October 29, 2014 (Docket No. 32) and December 26, 2014 (Docket No. 38). The Second Amended Complaint identified Defendant Tom Norris as Plaintiff's previously unidentified case manager. (Compare Docket No. 38 ¶ 3, with Docket No. 32 ¶ 3.)

On February 17, 2015, Defendant Tom Norris filed a Motion to Dismiss under Rule 12(b)(6) (Docket No. 45). Under D.C.Colo.LCivR 7.1(d), a response to that motion was due March 10, 2015, and under Fed.R.Civ.P. 6(d) would have been deemed timely if filed by March 13, 2015. On March 18, 2015, because no response had been received, the Court entered a minute order stating:

(Docket No. 48.) As of today, no response has been filed—even though Plaintiff is represented by counsel, and Plaintiff's counsel acknowledged the deadline in a stipulated motion to amend the scheduling order. (See Docket No. 49 ¶ 4.)

Defendant's motion has thus been confessed. The Court recommends that the Court grant Defendant's motion and dismiss Plaintiff's claims against Defendant Norris.

Moreover, the Court has reviewed Defendant's motion and finds it to be well-grounded. Defendant argues that the amended complaint naming him was filed after the statute of limitations on Plaintiff's claim had run. The dates establishing Defendant's affirmative defense are apparent in the Second Amended Complaint, and therefore may be raised on a motion to dismiss under Rule 12(b)(6). Radloff-Francis v. Wyo. Med. Ctr. Inc., 524 F. App'x 411, 413 (10th Cir. 2013) ("[A]lthough a statute of limitations bar is an affirmative defense, it may be resolved on a Rule 12(b)(6) motion to dismiss when the dates given in the complaint make clear that the right sued upon has been extinguished."). Defendant argues further that the Second Amended Complaint does not relate back to the original complaint (which was timely) for purposes of this claim because Defendant Norris was named there as a John Doe, not a misidentified party, and relation-back is therefore unavailable under Federal Rule of Civil Procedure 15(c). See Garrett v. Fleming, 362 F.3d 692, 696-97 (10th Cir. 2004). The pleadings support Defendant's argument, and Plaintiff has (by confessing the motion) not provided any argument to the contrary.

RECOMMENDATION

Based upon the foregoing, it is hereby RECOMMENDED that the Court GRANT Defendant Tom Norris's Motion to Dismiss (Docket No. 45) and DISMISS from the Second Amended Complaint (Docket No. 38) Plaintiff's claims against Defendant Tom Norris.

NOTICE: Pursuant to 28 U.S.C. § 636(b)(1)(C) and Fed. R. Civ. P. 72(b)(2), the parties have fourteen (14) days after service of this recommendation to serve and file specific written objections to the above recommendation with the District Judge assigned to the case. A party may respond to another party's objections within fourteen (14) days after being served with a copy. The District Judge need not consider frivolous, conclusive, or general objections. A party's failure to file and serve such written, specific objections waives de novo review of the recommendation by the District Judge, Thomas v. Arn, 474 U.S. 140, 148-53 (1985), and also waives appellate review of both factual and legal questions, Makin v. Colo. Dep't of Corr., 183 F.3d 1205, 1210 (10th Cir. 1999); Talley v. Hesse, 91 F.3d 1411, 1412-13 (10th Cir. 1996).