JAMES S. MOODY JR., United States District Judge
THIS CAUSE came on for consideration upon the Report and Recommendation submitted by Magistrate Judge Thomas G. Wilson (Dkt. #118), Plaintiffs' Objection to Report and Recommendation (Dkt. #120), and Defendants' response (Dkt. #122).
The Court notes that Plaintiffs have objected to, among other things, the Magistrate's use of a map to determine the distance between two particular cities in discounting one of Plaintiffs' contentions. Plaintiffs contend that this "consideration of matters outside the pleadings effectively converted the Defendants' motion to dismiss into a motion for summary judgment." (Page 3 of Plaintiffs' Objection to Report and Recommendation). Defendants counter that it was appropriate for the Magistrate to take judicial notice of commonly available information of geography. It is unnecessary for this Court to resolve this dispute since the geographical information was not critical to the analysis contained in the Report and Recommendation. The Magistrate had already dispensed with Plaintiffs' contention by determining from the Complaint and available documents, particularly document #83, that the existence of two pharmacies in towns in Colorado with overlapping delivery routes would be inconsequential to the investing public regarding PharMerica, an entity with approximately 160 pharmacy facilities located across thirty-seven states. (Page 82, Report and Recommendation).
The Magistrate referred to a Colorado state map at Yahoo.Com to determine the distance between two cities in the state of Colorado referenced on page 83 of the Report and Recommendation.
This Court, without relying on the map mileage between the two towns in Colorado, is of the opinion that the Magistrate Judge's Report and Recommendation should be adopted, confirmed, and approved. The Court notes that Plaintiffs have not sought the opportunity to further amend the existing Second Amended Complaint.
ACCORDINGLY, it is therefore, ORDERED AND ADJUDGED:
1) The Report and Recommendation of the Magistrate Judge is adopted, confirmed, and approved in all respects (except for the reference to the mileage on page 83 thereof), and said Report and Recommendation is made a part of this order for all purposes, including appellate review.
2) The Defendants' Motion to Dismiss (Dkt. #83) is GRANTED. The Second Amended Complaint is DISMISSED with prejudice.
DONE AND ORDERED.