Free Order on Motion to Amend/Correct/Modify - District Court of Colorado - Colorado

Case 1:02-cv-01833-WYD-BNB

Document 41

Filed 11/01/2005

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Judge Wiley Y. Daniel Civil Action No. 02-cv-01833-WYD-BNB GARY R. COZZOLINO, JR. Plaintiff, v. INTERNAL REVENUE SERVICE, Defendant.

ORDER

THIS MATTER is before the Court in connection with a pleading filed by Plaintiff on September 21, 2005, entitled " Motion for Amendment Federal Rule 38."While this motion is largely unintelligible to the Court, it appears to ask for an amendment of the Judgment entered in this case on August 7, 2003. I note that Judgment was issued in response to the Court' Order Affirming and s Adopting Recommendation of Magistrate Judge filed August 6, 2003. Plaintiff did not file objections to the Recommendation of the Magistrate Judge, which recommended that the case be dismissed with prejudice for lack of prosecution and failure to comply with Court Orders. Plaintiff' motion also refers to an appeal of the judgment, which appeal is not s confirmed by the Court' docket. s The Court , having reviewed Plaintiff' " s Motion for Amendment Federal Rule 38" and being fully advised in the premises, denies the motion. FED. R. CIV. P. 38, addressing the -1-

Case 1:02-cv-01833-WYD-BNB

Document 41

Filed 11/01/2005

Page 2 of 2

right to a jury trial, has no applicability once judgment has been entered and provides no grounds to amend the judgment. Quite simply, Plaintiff lost the right to a jury trial when he failed to prosecute the case or comply with Court Orders, and when he failed to object to the Magistrate Judge' Recommendation to dismiss the case based on same. Further, to s the extent that the motion can be construed as seeking relief authorized by Rule 60, Plaintiff did not show exceptional circumstances that warrant altering or amending the judgment. See Van Skiver v. United States, 952 F.2d 1241, 1243 (10th Cir. 1991). Accordingly, it is ORDERED that Plaintiff' " s Motion for Amendment Federal Rule 38" filed September 21, 2005 (docket # 39) is DENIED. Dated: November 1, 2005 BY THE COURT:

s/ Wiley Y. Daniel Wiley Y. Daniel U. S. District Judge

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