Miller et al v. Asset Living, LLC et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Nina Y. Wang
Civil Action No. 24-cv-02687-NYW-TPO
DANIEL K. MILLER,
ELIZABETH D. WILHOUR, and
SEAN M. WILHOUR,
Plaintiffs,
v.
ASSET LIVING, LLC,
AMFP V CENTRAL PARK LLC, and
SHANNA MARTINEZ,
Defendant.
ORDER ADOPTING MAGISTRATE JUDGE’S RECOMMENDATION
This matter is before the Court on the Recommendation issued by the Honorable
Timothy P. O’Hara on February 17, 2026. 	[Doc. 164]. 	The Recommendation concerns
two pending Motions: 	(1) Defendants Asset Living and Shanna Martinez’s Fed. R. Civ.
P. 12(b)(6) Motion to Dismiss Plaintiffs’ First, Third, Fifth, and Eighth Claims for Relief,
[Doc. 118], and Defendant AMFP V Central Park, LLC Fed. R. Civ. P. 12(b)(6) Motion to
Dismiss Plaintiffs’ First, Third, Fifth and Eighth Claims For Relief, [Doc. 128]. 	Judge
O’Hara recommends that both Motions to Dismiss be granted, that Claims One and Five
be dismissed with prejudice as to all Defendants, and that Claims Three and Eight be
dismissed without prejudice as to all Defendants. [Doc. 164 at 16]. He recommends that
this action proceed with respect to Claims Two, Four, Six, and Seven, which are not
challenged in the Motions to Dismiss. [Id.].
Case No. 1:24-cv-02687-NYW-TPO Document 168 filed 03/12/26 USDC Colorado
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The Recommendation states that objections to the Recommendation must be filed
within fourteen days after its service on the Parties. 	[Id. at 16 n.6]; see also 28 U.S.C.
§ 636(b)(1)(C). The Recommendation was served on February 17, 2026. See [Doc. 164
at 17]. No Party has objected to the Recommendation and the time to do so has elapsed.
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
judge’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.”1
Fed. R. Civ. P. 72(b) advisory committee’s note to 1983 amendment. 	Based on this
review, the Court has concluded that the Recommendation is thorough, well-reasoned,
and a correct application of the facts and the law.
Accordingly, it is ORDERED that:
(1) 	The Recommendation [Doc. 164] is ADOPTED;
(2) 	Defendants Asset Living and Shanna Martinez’s Fed. R. Civ. P. 12(b)(6)
Motion to Dismiss Plaintiffs’ First, Third, Fifth, and Eighth Claims for Relief
[Doc. 118] is GRANTED;
(3) 	Defendant AMFP V Central Park, LLC Fed. R. Civ. P. 12(b)(6) Motion to
Dismiss Plaintiffs’ First, Third, Fifth and Eighth Claims For Relief [Doc. 128]
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).
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is GRANTED;
(4) 	Claims One and Five are DISMISSED with prejudice as to all Defendants;
(5) 	Claims Three and Eight are DISMISSED without prejudice as to all
Defendants; and
(6) 	The Clerk of Court shall mail a copy of this Order to:
Daniel K. Miller
1950 Trenton Street
#114
Denver, CO 80220
Elizabeth Wilhour
1950 Trenton Street
#114
Denver, CO 80220
and
Sean Wilhour
1950 Trenton Street
#114
Denver, CO 80220
DATED: March 12, 2026 	BY THE COURT:
_________________________
Nina Y. Wang
United States District Judge
Case No. 1:24-cv-02687-NYW-TPO Document 168 filed 03/12/26 USDC Colorado
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