Filed: Sep. 09, 2019
Latest Update: Sep. 09, 2019
Summary: AMENDED RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE NINA Y. WANG , Magistrate Judge . This matter comes before the court on Plaintiff Brian Bath ("Plaintiff" or "Mr. Bath")'s Motion for Voluntary Dismissal ("Motion for Voluntary Dismissal" or "the Motion") [#184, filed August 14, 2019]. The Motion was referred to this Magistrate Judge pursuant to 28 U.S.C. 636(b); the Order Referring Case dated January 29, 2019 [#59]; and the Memorandum dated August 15, 2019 [#185]. Upon considera
Summary: AMENDED RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE NINA Y. WANG , Magistrate Judge . This matter comes before the court on Plaintiff Brian Bath ("Plaintiff" or "Mr. Bath")'s Motion for Voluntary Dismissal ("Motion for Voluntary Dismissal" or "the Motion") [#184, filed August 14, 2019]. The Motion was referred to this Magistrate Judge pursuant to 28 U.S.C. 636(b); the Order Referring Case dated January 29, 2019 [#59]; and the Memorandum dated August 15, 2019 [#185]. Upon considerat..
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AMENDED RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
NINA Y. WANG, Magistrate Judge.
This matter comes before the court on Plaintiff Brian Bath ("Plaintiff" or "Mr. Bath")'s Motion for Voluntary Dismissal ("Motion for Voluntary Dismissal" or "the Motion") [#184, filed August 14, 2019]. The Motion was referred to this Magistrate Judge pursuant to 28 U.S.C. § 636(b); the Order Referring Case dated January 29, 2019 [#59]; and the Memorandum dated August 15, 2019 [#185]. Upon consideration of the Motion, this court respectfully RECOMMENDS that the Motion for Voluntary Dismissal be GRANTED IN PART and DENIED IN PART.
Plaintiff filed this action in Denver District Court on December 10, 2018, and it was removed to this court on January 11, 2019. [#1 at 2]. Plaintiff asserted a host of individual claims against various financial institutions and credit reporting agencies. [#3]. Over the ensuing months, most of the Defendants moved to dismiss the case, the undersigned recommended that those motions be granted, and the presiding judge, the Honorable Raymond P. Moore, adopted the Recommendation and granted the various Motions to Dismiss. [#88; #89; #145; #174; #182]. Following that Order of Dismissal and numerous settlements, the only Defendant remaining in this action is Trans Union LLC ("Trans Union"), which filed an answer and non-dispositive Motion to Strike which was granted. [#90; #136; #182].
Mr. Bath then filed the instant Motion for Voluntary Dismissal on August 14, 2019, seeking to withdraw his claims and to have the court "order and waive all Pacer fees, past, present, and future." [#184]. The Motion did not include a certificate of conferral and so the undersigned ordered that any Response be docketed by August 23. [#186]. Though the court expected that Trans Union, the only defendant left in this action, would file a response, dismissed-Defendant American Express Company filed the only Response that indicated that the relief was moot as to that party. [#187].
In the absence of any response indicating opposition, the court finds that the Motion for Voluntary Dismissal should be construed as unopposed. Augustine v. Exec. in Charge I.R.S., No. CIV.A. 06-CV-02514-MS[K], 2007 WL 247719, at *1 n.1 (D. Colo. Jan. 26, 2007). As TransUnion did not sign the Motion but merely failed to oppose, Rule 41(a)(1)(A)(ii) would not be an appropriate basis for granting the Motion. For this reason, the court believes dismissal without prejudice is appropriate under the circumstances.
As to Mr. Wallace's request that the court "waive all Pacer fees," both past and present, this court respectfully RECOMMENDS that his request that all PACER fees be DENIED, particularly given Plaintiff's pattern of litigation conduct spanning from 2011 to the present in this District. See Ex. 1 (List of cases filed by Plaintiff as Brian William Wallace and Brian Edmond Bath).
Accordingly, it is RESPECTFULLY RECOMMENDED that Plaintiff's Motion for Voluntary Dismissal [#184] be GRANTED pursuant to Federal Rule of Civil Procedure 41(a)(2) and his request that all PACER fees be DENIED.1
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Brian Bath is a plaintiff in 3 cases
1:17-cv-02678-MEH Bath v. Credit Service Company filed 11/08/17 closed 01/08/18
1:19-cv-00106-RM-NYW Bath v. Experian Information Solutions Inc et al filed 01/11/19
1:19-cv-00606-RM-NYW Bath v. American Express Company et al filed 03/01/19
Select A Case
Brian Edmond Bath is a plaintiff in 2 cases
1:18-cv-00384-RBJ-STV Bath v. Boundy et al filed 02/15/18 closed 08/06/18
1:19-cv-01135-RM-NYW Wallace v. Trans Union LLC et al filed 04/18/19
Select A Case
Brian William Wallace is a plaintiff in 7 cases
1:19-cv-01135-RM-NYW Wallace v. Trans Union LLC et al filed 04/18/19
1:19-cv-01359-RM-NYW Wallace v. Capital One Bank (USA), N.A. et al filed 05/10/19
1:19-cv-01564-RM-NYW Wallace v. Braca filed 05/31/19
1:19-cv-01695-RM-NYW Wallace v. Paypal et al filed 06/11/19
1:19-cv-01720 Wallace v. American Express Company filed 06/12/19 closed 06/13/19
1:19-cv-01721-LTB-NYW Wallace v. American Express National Bank filed 06/12/19
1:19-cv-01759-RM-NYW Wallace v. First Premier Bank filed 06/18/19
Select A Case
Brian Edmond Bath is a plaintiff in 20 cases
1:11-cv-01089-REB-MJW Bath v. EMC Mortgage Corporation et al filed 04/25/11 closed 02/27/12
1:11-cv-03117-PAB-MJW Bath v. Dyck O'Neal et al filed 11/30/11 closed 03/29/12
1:12-cv-00151-PAB-MEH Bath v. Experian Information Solutions, Inc. et al filed 01/19/12 closed 04/23/12
1:12-cv-01000-RBJ-KMT Bath v. J.P. Morgan National Corporate Services,
Inc. et al. filed 04/13/12 closed 10/24/12
1:12-cv-01929-RBJ-KMT Bath v. HSBC et al filed 07/24/12 closed 02/24/14
1:12-cv-02022-RBJ-KMT Bath v. Midland Credit Management et al filed 08/02/12 closed 10/24/12
1:12-cv-02025-RBJ-KMT Bath v. Diversified Adjustments Service, Inc. et al filed 08/02/12 closed 10/24/12
1:12-cv-02075-RBJ-KMT Bath v. National Asset Recovery Services, Inc. filed 08/07/12 closed 10/24/12
1:12-cv-02078-RBJ-KMT Bath v. Collection California Recovery Bureau, Inc. filed 08/07/12 closed 10/11/12
1:12-cv-02080-RBJ-KMT Bath v. Collection Bureau of the Hudson Valley, Inc. filed 08/07/12 closed 10/24/12
1:12-cv-02213-RBJ-KMT Bath v. Professional Finance Company, Inc. filed 08/20/12 closed 10/24/12
1:12-cv-02215-RBJ-KMT Bath, v. Vital Recovery Services Inc., filed 08/20/12 closed 02/25/15
1:12-cv-02217-RBJ-KMT Bath, v. Wakefield & Associates, filed 08/20/12 closed 10/24/12
1:12-cv-02218-RBJ-KMT Bath, v. Central Credit Services, Inc., filed 08/20/12 closed 10/19/12
1:12-cv-03225-RBJ-KMT Bath v. Midland Credit Management, Inc. et al filed 12/11/12 closed 04/09/14
1:12-cv-03228-RBJ-KMT Bath v. RJM Acquisitions LLC et al filed 12/11/12 closed 04/09/14
1:14-cv-01509-LTB Bath v. Brohl filed 05/29/14 closed 06/04/14
1:14-cv-01529-LTB Bath v. Bicha filed 05/30/14 closed 06/04/14
1:18-cv-00572-PAB-NYW Bath v. Equifax Information Services LLC filed 03/09/18 closed 06/05/19
1:19-cv-01359-RM-NYW Wallace v. Capital One Bank (USA), N.A. et al filed 05/10/19
