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IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Civil Action No. 11-cv-02590-WJM-CBS 

JOSE VELEZ-AROCHO,

Plaintiff,

v.

VIRTUOSO SOURCING GROUP LLC, 

SARAH BILES, 

MICHELLE COONEY, 

JUDITH A. LASPADA, and

DOES 1-100, INCLUSIVE,

Defendants.

_____________________________________________________________________

RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

_____________________________________________________________________

Magistrate Judge Craig B. Shaffer

This civil action comes before the court regarding Plaintiff, Mr. Velez-Arocho’s,

failure to timely appear at the Preliminary Scheduling Conference held on February 8,

2012, failure to comply with a court order, failure to respond to the court’s February 13,

2012 Order to Show Cause (Doc. # 27), and failure to prosecute this action. By the

Order Referring Case dated November 10, 2011, this civil action was referred to the

Magistrate Judge to conduct proceedings pursuant to 28 U.S.C. § 636(b)(1)(A) and (B)

and Fed. R. Civ. P. 72(a) and (b). (See Doc. # 12). The court has reviewed the entire

case file and the applicable law and is sufficiently advised in the premises. 

Proceeding pro se and in forma pauperis, Mr. Velez-Arocho filed the instant

action on October 3, 2010, pursuant to 28 U.S.C. § 1331. (See Complaint (Doc. # 1); 

“Order Granting Plaintiff Leave to Proceed Pursuant to 28 U.S.C. § 1915" (Doc. # 8)).

Mr. Velez-Arocho alleges eleven “Counts” under the Fair Debt Collection Practices Act,

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Title 15 U.S.C. § 1692 et seq., the Fair Credit Reporting Act, Title 15 U.S.C. § 1681 et

seq., Title 7 § 2031 of the Laws of Puerto Rico Annotated, and the Constitution of

Puerto Rico. (See id.). Mr. Velez-Arocho seeks various forms of monetary damages.

(See id.). 

The Federal Rules of Civil Procedure provide that “[i]n any action, the court may

order the attorneys and any unrepresented parties to appear for one or more pretrial

conferences . . . .” Fed. R. Civ. P. 16(a). By a Minute Order dated December 8, 2011,

the court set a Preliminary Scheduling Conference on February 8, 2012 at 8:30 a.m. 

(See Doc. # 23). The court mailed a copy of the Minute Order to Mr. Velez-Arocho at

his address of record with the court. (See Doc. # 23, Notice of Electronic Filing). The

court’s records indicate that Mr. Velez-Arocho’s copy of the Minute Order was not

returned to the court in the mail as undeliverable. The court held the Preliminary

Scheduling Conference on February 8, 2012. Defendant appeared through counsel.

Mr. Velez-Arocho did not appear. Mr. Velez-Arocho has not contacted the court

regarding his failure to appear. 

On February 13, 2012, the court issued an order directing Mr. Velez-Arocho to

show cause on or before March 1, 2012 why this civil action should not be dismissed for 

his failure to appear at the February 8, 2012 Preliminary Scheduling Conference, failure

to comply with a court order and the Federal Rules of Civil Procedure, and failure to

prosecute this civil action. (See Doc. # 27). See also D.C.COLO.LCivR 41.1 (“A

judicial officer may issue an order to show cause why a case should not be dismissed

for lack of prosecution or for failure to comply with these rules, the Federal Rules of

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Civil Procedure, or any court order.”); Rogers v. Andrus Transp. Servs., 502 F.3d 1147,

1151 (10th Cir. 2007) (noting the court has inherent authority to consider sua sponte

whether a case should be involuntarily dismissed due to Plaintiff's failure to prosecute). 

The court advised Mr. Velez-Arocho “that failure to adequately respond to the Order to

Show Cause on or before March 1, 2012 may result, without further notice, in a

Recommendation to the District Judge that this civil action be dismissed and/or

sanctions, including but not limited to an order to pay reasonable expenses including

defense counsel’s attorney fees for appearing at the February 8, 2012 Preliminary

Scheduling Conference.” (See Doc. # 27). As of this date Mr. Velez-Arocho has not

responded to the court’s Order to Show Cause. The court’s records do not reflect that

Mr. Velez-Arocho’s copy of the Order Show Cause was returned as undeliverable. Mr.

Velez-Arocho has filed nothing in this case since December 5, 2011. 

Mr. Velez-Arocho has failed to failed to appear at the Preliminary Scheduling

Conference held on February 8, 2012, failed to comply with a court order, failed to

respond to the court’s February 13, 2012 Order to Show Cause, and failed to prosecute

this action. Based on these instances of noncompliance, this civil action may be

dismissed with or without prejudice. See AdvantEdge Business Group v. Thomas E.

Mestmaker, 552 F.3d 1233, 1236 (10th Cir. 2009) (internal quotation marks and citation

omitted) (“A district court undoubtedly has discretion to sanction a party for failing to

prosecute or defend a case, or for failing to comply with local or federal procedural

rules.”); Schafer v. City of Defiance Police Dept., 529 F.3d 731, 736 (6th Cir. 2008) 

(“Rule 41(b) of the Federal Rules of Civil Procedure confers on district courts the

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authority to dismiss an action for failure of a plaintiff to prosecute the claim or comply

with the Rules or any order of the court.”). See also Fed. R. Civ. P. 41(b) (“Unless the

dismissal order states otherwise, a dismissal under this subdivision (b) . . . operates as

an adjudication on the merits.”); Rogers, 502 F.3d at 1151 (“Rule [41(b)] has long been

interpreted to permit courts to dismiss actions sua sponte for a plaintiff’s failure to

prosecute. . . .”); Ghazali v. Moran, 46 F.3d 52, 53 (9th Cir. 1995) (“Failure to follow a

district court’s local rules is a proper ground for dismissal.”); D.C.COLO.LCivR 41.1 (“If

good cause is not shown within the time set in the show cause order, a district judge or

a magistrate judge exercising consent jurisdiction may enter an order of dismissal with

or without prejudice.”). 

When dismissing a case without prejudice, “a district court may, without abusing

its discretion, enter such an order without attention to any particular procedures.” 

AdvantEdge Business Group, 552 F.3d at 1236 (internal quotation marks and citation

omitted). Here, the court recommends dismissal without prejudice. The Tenth Circuit

“has recognized that a dismissal without prejudice can have the practical effect of a

dismissal with prejudice if the statute of limitations has expired.” Id. (citation omitted). 

Mr. Velez-Arocho has not addressed the possible running of a statute of limitations or

identified any applicable limitation periods or tolling provisions. The court is not

convinced that it is required to sua sponte identify and apply the limitations periods or

tolling provisions applicable to Mr. Velez-Arocho’s eleven claims alleging violation the

Fair Debt Collection Practices Act, the Fair Credit Reporting Act, the laws of Puerto

Rico, and the Constitution of Puerto Rico. 

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Accordingly, IT IS RECOMMENDED that this civil action be dismissed without

prejudice for Mr. Velez-Arocho’s failure to appear at the Preliminary Scheduling

Conference held on February 8, 2012, failure to comply with the Local Rules of Practice

of the United States District Court for the District of Colorado, the Federal Rules of Civil

Procedure, and the court’s orders, failure to respond to the court’s February 13, 2012

Order to Show Cause, and failure to prosecute this action. 

Advisement to the Parties

Within fourteen days after service of a copy of the Recommendation, any party

may serve and file written objections to the Magistrate Judge’s proposed findings 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); 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. One Parcel of Real Property Known As 2121 East

30th Street, Tulsa, Oklahoma, 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 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 and

recommendations of the magistrate judge. See Vega v. Suthers, 195 F.3d 573, 579-80

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(10th Cir. 1999) (District Court’s decision to review a Magistrate Judge’s

recommendation de novo despite the lack of an objection does not preclude application

of the “firm waiver rule”); International Surplus Lines Insurance Co. v. Wyoming Coal

Refining Systems, Inc., 52 F.3d 901, 904 (10th Cir. 1995) (by failing to object to certain

portions of the Magistrate Judge’s order, cross-claimant had waived its right to appeal

those portions of the ruling); Ayala v. United States, 980 F.2d 1342, 1352 (10th Cir.

1992) (by their failure to file objections, plaintiffs waived their right to appeal the

Magistrate Judge’s ruling). But see, Morales-Fernandez v. INS, 418 F.3d 1116, 1122

(10th Cir. 2005) (firm waiver rule does not apply when the interests of justice require

review). 

DATED at Denver, Colorado, this 12th day of March, 2012.

BY THE COURT:

 s/Craig B. Shaffer 

United States Magistrate Judge 

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