Toll Brothers, Inc. et al v. Gu et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Philip A. Brimmer
Civil Action No. 25-cv-02884-PAB-CYC
TOLL BROTHERS, INC., a Delaware corporation,
TOLL SOUTHWEST LLC, a Delaware limited liability company, and
TB PROPRIETARY CORP., a Delaware corporation,
Plaintiff,
v.
JEFFREY GU, an individual,
TOLL BROTHERS LLC, a Colorado limited liability company,
TB PROPRIETARY CORP LLC, a Colorado limited liability company,
TOLL ARCHITECTURE LLC, a Colorado limited liability company,
TOLL HOLDINGS LLC, a Colorado limited liability company,
TB PROPRIETARY CORP., a Colorado corporation,
TOLL ARCHITECTURE, INC, a Colorado corporation,
TOLL BROTHERS, INC, a Colorado corporation, and
TOLL SOUTHWEST LLC, a Wisconsin limited liability company,
Defendants,
and
JEFFREY GU, an individual,
Counterclaimant,
v.
TB PROPRIETARY CORP., a Delaware corporation,
TOLL BROTHERS, INC., a Delaware corporation, and
TOLL SOUTHWEST LLC, a Delaware limited liability company,
Counter-Defendants.
ORDER
This matter is before the Court on the Recommendation of United States
Magistrate Judge [Docket No. 185]. The Recommendation addressed several motions,
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see generally Docket No. 185, all but one of which the Court denied as moot upon
Jeffrey Gu voluntarily dismissing his claims against the third-party defendants in this
case pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)(i). Docket No. 187. The
sole remaining motion addressed in the Recommendation is the motion to dismiss Mr.
Gu’s counterclaims of Toll Brothers, Inc., Toll Southwest LLC, and TB Proprietary Corp.
(collectively, the “Toll Brother defendants”). Docket No. 125. The Recommendation
recommends granting the motion to dismiss and dismissing counterclaims one, two, and
four without prejudice due to lack of standing and dismissing counterclaims three and
six with prejudice.1 Docket No. 185 at 28. Mr. Gu has filed what he characterizes as a
“limited objection.” Docket No. 189 at 3. In his “limited objection,” Mr. Gu does not
object to dismissal. Instead, Mr. Gu requests dismissal of counterclaims one, two, and
four without prejudice, requests that the Court grant Mr. Gu leave to file his First
Amended Answer and Counterclaims, and requests “confirm[ation]” that the
counterclaims in his First Amended Answer and Counterclaims are not barred. Docket
No. 189 at 5.
Mr. Gu’s request that the Court dismiss counterclaims one, two, and four without
prejudice is not an objection to the Recommendation because the Recommendation
1 The Recommendation recommends dismissing counterclaim three for failure to
state a claim with respect to all defendants except four third-party defendants who have
since been dismissed. Docket No. 185 at 14. The Recommendation recommends
dismissing counterclaim three without prejudice against those four third-party
defendants. Id. However, near the end of the Recommendation, the Recommendation
does not mention counterclaim three when discussing the Toll Brother defendants. Id.
at 28. The Court presumes this is an oversight and that the Recommendation suggests
dismissing claim three with prejudice against the Toll Brother defendants, as stated
earlier in the Recommendation. See id. at 14. Notably, the Toll Brother defendants
move for dismissal of counterclaim three in their motion to dismiss. See Docket No. 125
at 11.
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already recommends dismissing counterclaims one, two, and four against the Toll
Brother defendants without prejudice. Docket No. 185 at 28. Moreover, Mr. Gu’s
requests related to his first amended answer and counterclaims are properly addressed
in a motion for leave to file the first amended answer and counterclaims, not in an
objection to the Recommendation.2 Therefore, because Mr. Gu does not object to any
portion of the Recommendation, the Court finds that no party has objected to the
Recommendation.
In the absence of an objection, the district court may review a magistrate judge’s
recommendation under any standard it deems appropriate. See Summers v. Utah, 927
F.2d 1165, 1167 (10th Cir. 1991); see also Thomas v. Arn, 474 U.S. 140, 150 (1985) (“It
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.”). In this matter, the Court has reviewed the Recommendation
to satisfy itself that there is “no clear error on the face of the record.”3 Fed. R. Civ. P.
72(b), Advisory Committee Notes. Based on this review, the Court has concluded that
the Recommendation is a correct application of the facts and the law as to the motion to
dismiss at Docket No. 125. The portions of the Recommendation that address the other
motions are moot because the Court has since denied those motions as moot.
Therefore, it is
2 Mr. Gu filed such a motion, Docket No. 188, but has since withdrawn his motion
for leave to file a first amended answer and counterclaims. Docket No. 191. On August
31, 2026, Mr. Gu filed a new motion for leave to file an amended answer and
counterclaims. Docket No. 193.
3 This standard of review is something less than a “clearly erroneous” or “contrary
to law” standard of review, Fed. R. Civ. P. 72(a), which in turn is less than a de novo
review. Fed. R. Civ. P. 72(b).
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ORDERED that the Recommendation of United States Magistrate Judge [Docket
No. 185] is ACCEPTED in part and REJECTED in part as moot. It is further
ORDERED that Toll Brothers, Inc., Toll Southwest LLC, and TB Proprietary
Corp.’s Motion to Dismiss Jeffrey Gu’s Counterclaims [Docket No. 125] is GRANTED. It
is further
ORDERED that counterclaims one, two, and four are DISMISSED without
prejudice against Toll Brothers, Inc., Toll Southwest LLC, and TB Proprietary Corp. It
is further
ORDERED that counterclaims three and six are DISMISSED with prejudice
against Toll Brothers, Inc., Toll Southwest LLC, and TB Proprietary Corp.
DATED September 3, 2026.
BY THE COURT:
___________________________
PHILIP A. BRIMMER
United States District Judge
_____	__	___________________________
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