Wertz v. Clorox Services Company

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Regina M. Rodriguez
Civil Action No. 1:24-cv-01917-RMR-SBP
GLORIA WERTZ,
Plaintiff,
v.
CLOROX SERVICES COMPANY,
Defendant.
ORDER ADOPTING MAGISTRATE JUDGE RECOMMENDATION
This 	matter is 	before the Court 	on 	the Recommendation of United States
Magistrate Judge Susan Prose, entered on February 11, 2025, ECF No. 36, addressing
Defendant’s Partial Motion to Dismiss, ECF No. 11. Magistrate Judge Prose recommends
that Defendant’s motion be granted and Plaintiff’s CCPA claim be dismissed without
prejudice.
Plaintiff timely filed an objection to the Recommendation at ECF No. 37. The Court
has received and considered the Recommendation, the Objection, the record, and the
pleadings. For the reasons stated below, the Court overrules Plaintiff’s objection and
adopts the Recommendation.
I. 	LEGAL STANDARD
The Court is required to make a de novo determination of those portions of a
magistrate judge’s recommendation to which a specific, timely objection has been made,
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and it may accept, reject, or modify any or all of the magistrate judge’s findings or
recommendations. 	28 U.S.C. § 636(b)(1) (“A judge of the court shall make a de novo
determination 	of 	those 	portions 	of 	the 	report 	or 	specified 	proposed 	findings 	or
recommendations to which objection is made.”); Fed. R. Civ. P. 72(b)(3) (“The district
judge must determine de novo any part of the magistrate judge’s disposition that has been
properly objected to.”).
“[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, 73 F.3d 1057, 1060
(10th Cir. 1996). In the absence of a proper 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) (“In the absence of timely
objection, the district court may review a magistrate’s report under any standard it deems
appropriate.”); 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.”). When no proper objection is filed, “the court need only satisfy itself that there
is no clear error on the face of the record in order to accept the recommendation.”1 Fed.
R. Civ. P. 72(b) advisory committee’s note to 1993 amendment.
1 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). See, e.g., Nat.
Jewish Health v. WebMD Health Servs. Grp., Inc., 305 F.R.D. 247, 249 n.1 (D. Colo. 2014) (Daniel, J.).
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II. 	ANALYSIS
The parties do not object to the factual or procedural background discussed in the
Recommendation. Accordingly, the Court adopts and incorporates the factual and
procedural background included within the Recommendation as if set forth herein.
Plaintiff filed a “general objection” to the Recommendation, asserting she “believes
that the pleadings thus far, motions, responses, complaint with cited material, and oral
arguments support her claims under the Colorado Consumer Protection Act (‘CCPA’).”
ECF No. 37 at 1. Plaintiff further “asserts that she has detailed sufficient allegations in her
complaint that Defendant violated the CCPA by engaging in unfair and deceptive trade
practices; namely: falsely marketing the Lavender Pine-Sol product as a disinfectant
when it was not.” Id. This “general objection” is not sufficiently specific to preserve the
issue for de novo review. See United States v. One Parcel of Real Prop., With Buildings,
Appurtenances, 	Improvements, 	& 	Contents, 	Known 	as: 	2121 	E. 	30th 	St., 	Tulsa,
Oklahoma, 73 F.3d 1057, 1060 (10th Cir. 1996) (quoting Lockert v. Faulkner, 843 F.2d
1015, 1019 (7th Cir.1988) (“Just as a complaint stating only ‘I complain’ states no claim,
an objection stating only ‘I object’ preserves no issue for review.”)).
Absent a specific objection, the Court finds no clear error with the Magistrate
Judge’s Recommendation, which is a correct application of the facts and the law. And
even if the Court were to consider the issue de novo, the Court agrees with the
Recommendation and finds that it accurately sets forth and applies the appropriate legal
standard. For the reasons stated in the Recommendation, Plaintiff’s Complaint fails to
plausibly allege an unfair or deceptive trade practice and the public impact element as
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required to state a CCPA claim. Thus, the Magistrate Judge properly recommended
dismissal of the CCPA claim. However, the Magistrate Judge also recommended that
Plaintiff be granted leave to file a motion for leave to amend the complaint to attempt to
plead a viable CCPA claim. In her objection, Plaintiff represents that she “anticipates filing
a motion for leave to amend her complaint in the very near future.” ECF No. 37 at 2.
Accordingly, Plaintiff may attempt to cure her defective pleading as to her CCPA claim
through an amended complaint. Thus, Plaintiff’s general objection is overruled, and the
CCPA claim is dismissed without prejudice.
III. 	CONCLUSION
For the reasons set forth above, the Court ORDERS:
1. 	Defendant’s Objection to the Recommendation, ECF No. 37, is OVERRULED;
2. 	The Recommendation, ECF No. 36, is ACCEPTED AND ADOPTED;
3. 	Defendant’s Partial Motion to Dismiss, ECF No. 11, is GRANTED; and
4. 	Plaintiff’s claim under the Colorado Consumer Protection Act is DISMISSED
WITHOUT PREJUDICE.
DATED: February 26, 2025
BY THE COURT:
_____________________________
REGINA M. RODRIGUEZ
United States District Judge
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