United States District Court, D. New Mexico
Hood Knoxville, Tennessee Plaintiff Pro Se.
M. Walters Lewis Roca Rothgerber, LLP Albuquerque, New Mexico
and Steven J. Hulsman Laura Pasqualone Lewis Roca Rothgerber,
LLP Phoenix, Arizona Attorneys for Defendants Texas Farmers
Insurance Company, Fire Insurance Exchange, Farmers Insurance
Exchange, Kim Gardetto, and Bruce Litman.
ORDER ADOPTING THE MAGISTRATE JUDGE'S PROPOSED
FINDINGS AND RECOMMENDED DISPOSITION
MATTER comes before the Court on the Magistrate
Judge's Proposed Findings and Recommended Disposition,
filed April 9, 2017 (Doc. 31)(“PFRD”). In the
PFRD, the Honorable Laura Fashing, United States Magistrate
Judge, recommended denying the Plaintiff's Request for
Relief from Dismissal, filed January 9, 2017 (Doc.
28)(“Motion”). The PFRD required the parties to
file objections no later than May 3, 2017. See PFRD
April 19, 2017, Plaintiff Mike Hood filed a document entitled
“Relief from Dismissal, ” in which he
“prays this Honorable Court to Deny the Defendant's
Motion to Dismiss and Motion for Sanction . . . .”
Relief From Dismissal at 1, filed April 19, 2017 (Doc.
32)(“Objections”). There is no pending motion to
dismiss or motion for sanctions. Accordingly, the Court
construes Hood's submission as Objections to Judge
Fashing's PFRD. Nevertheless, Hood's Objections
contain no specific factual or legal points of diversion from
the PFRD, and thus, the Court will not conduct a de novo
review of Judge Fashion's recommended disposition.
Rather, the Court will review the PFRD to determine whether
it is clearly erroneous, arbitrary, obviously contrary to
law, or an abuse of discretion. Applying this standard, the
Court concludes that Judge Fashing's recommended
disposition is correct. The Court accordingly adopts Judge
Fashing's recommendation and denies Hood's Motion.
REGARDING OBJECTIONS TO PROPOSED FINDINGS AND
courts may refer dispositive motions to a Magistrate Judge
for a recommended disposition. See Fed.R.Civ.P.
72(b)(1) (“A magistrate judge must promptly conduct the
required proceedings when assigned, without parties'
consent, to hear a pretrial matter dispositive of a claim or
defense . . . .”). Rule 72(b)(2) governs objections:
“Within 10 days after being served with a copy of the
recommended disposition, a party may serve and file specific
written objections to the proposed findings and
recommendations.” Finally, when resolving objections to
a Magistrate Judge's proposal, “the district judge
must determine de novo any part of the magistrate judge's
disposition that has been properly objected to. The district
judge may accept, reject, or modify the recommended
disposition; receive further evidence; or return the matter
to the magistrate judge with instructions.”
28 U.S.C. § 636 provides:
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. A judge of the
court may accept, reject, or modify, in whole or in part, the
findings or recommendations made by the magistrate judge. The
judge may also receive further evidence or recommit the
matter to the magistrate judge with instructions.
28 U.S.C. § 636(b)(1)(C).
filing of objections to the magistrate's report enables
the district judge to focus attention on those issues --
factual and legal -- that are at the heart of the
parties' dispute.” United States v. One Parcel
of Real Property, With Buildings, Appurtenances,
Improvements, and Contents, 73 F.3d 1057, 1059 (10th
Cir. 1996)(“One Parcel”)(quoting
Thomas v. Arn, 474 U.S. 140, 147 (1985)). As the
Tenth Circuit has noted, “the filing of objections
advances the interests that underlie the Magistrate's
Act,  including judicial efficiency.”
One Parcel, 73 F.3d at 1059 (citing Niehaus v.
Kansas Bar Ass'n, 793 F.2d 1159, 1165 (10th Cir.
1986); United States v. Walters, 638 F.2d 947, 950
(6th Cir. 1981)).
Tenth Circuit held in One Parcel “that 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.” One Parcel, 73 F.3d at
1060. “To further advance the policies behind the
Magistrate's Act, [the Tenth Circuit], like numerous
other circuits, ha[s] adopted ‘a firm waiver rule'
that ‘provides that the failure to make timely
objections to the magistrate's findings or
recommendations waives appellate review of both factual and
legal questions.'” One Parcel, 73 F.3d at
1059 (citations omitted). In addition to requiring
specificity in objections, the Tenth Circuit has stated that
“[i]ssues raised for the first time in objections to
the magistrate judge's recommendation are deemed
waived.” Marshall v. Chater, 75 F.3d 1421,
1426 (10th Cir. 1996). See United States v.
Garfinkle, 261 F.3d 1030, 1030-31 (10th Cir.
2001)(“In this circuit, theories raised for the first
time in objections to the magistrate judge's report are
deemed waived.”). And, in an unpublished opinion, the
Tenth Circuit stated that “the district court correctly
held that [a petitioner] had waived [an] argument by failing
to raise it before the magistrate.” Pevehouse v.
Scibana, 229 F. App'x 795, 796 (10th Cir.
One Parcel, the Tenth Circuit, in accord with other
Courts of Appeals, expanded the waiver rule to cover
objections that are timely but too general. See One
Parcel, 73 F.3d at 1060. The Supreme Court of the United
States -- in the course of approving the United States Court
of Appeals for the Sixth Circuit's use of the waiver rule
-- has noted:
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. The House and
Senate Reports accompanying the 1976 amendments do not
expressly consider what sort of review the district court
should perform when no party objects to the magistrate's
report. See S. Rep. No. 94-625, pp. 9-10
(1976)(hereafter Senate Report); H.R. Rep. No. 94-1609, p. 11
(1976); U.S. Code Cong. & Admin. News 1976, p. 6162
(hereafter House Report). There is nothing in those Reports,
however, that demonstrates an intent to require the district
court to give any more consideration to the magistrate
judge's report than the court considers appropriate.
Moreover, the Subcommittee that drafted and held hearing on
the 1976 amendments had before it the guidelines of the
Administrative Office of the United States Courts concerning
the efficient use of magistrates. Those guidelines
recommended to the district courts that “[w]here a
magistrate makes a finding or ruling on a motion or
an issue, his determination should become that of the
district court, unless specific objection is filed within a
reasonable time.” See Jurisdiction of the
United States Magistrates, Hearings on S. 1283 before the
Subcommittee on Improvements in Judicial Machinery of the
Senate Committee on the Judiciary, 94th Cong., 1st Sess., 24
(1975)(emphasis added)(hereafter Senate Hearings). The
Committee also heard Judge Metzner of the Southern District
of New York, the chairman of a Judicial Conference Committee
on the administration of the magistrate system, testify that
he personally followed that practice. See id., at 11
(“If any objections come in, . . . I review [the
record] and decide it. If no objections come in, I merely
sign the magistrate's order.”). The Judicial
Conference of the United States, which supported the de
novo standard of review eventually incorporated in
§ 636(b)(1)(C), opined that in most instances no party
would object to the magistrate's recommendation, and the
litigation would terminate with the judge's adoption of
the magistrate's report. See Senate Hearings, at
35, 37. Congress apparently assumed, therefore, that any
party who was dissatisfied for any reason with ...