United States District Court, D. New Mexico
RICK JARAMILLO; STEVE DURAN; RAILYARD BREWING COMPANY, LLC and RINGSIDE ENTERTAINMENT, LLC, Plaintiffs,
DAVID FREWING; U.S. BOWLING CORPORATION and CRAIG DILL, Defendants.
Jaramillo Santa Fe, New Mexico Plaintiff pro se
Duran Santa Fe, New Mexico Plaintiff pro se
William R Keleher Smidt Reist & Keleher PC Albuquerque,
New Mexico Attorney for Defendants David Frewing and U.S.
D. Walker Leslie D. Maxwell Walker & Associates, P.C.
Albuquerque, New Mexico Attorneys for Defendant Craig Dill
MEMORANDUM OPINION AND ORDER ADOPTING THE MAGISTRATE
JUDGE'S PROPOSED FINDINGS AND RECOMMENDED
MATTER comes before the Court on the Magistrate
Judge's Proposed Findings and Recommended Disposition,
filed July 24, 2018 (Doc. 20)(“PFRD”), advising
the Court to: (i) grant Defendant Chapter 11 Trustee Craig H.
Dill's Amended Motion to Dismiss and to Sanction
Plaintiffs, filed November 6, 2017 (Doc. 12)(“Dill
MTD”); and (ii) grant Defendant David Frewing and U.S.
Bowling's Amended Motion to Dismiss, or in the
alternative, Motion to Stay Proceedings, filed November 15,
2017 (Doc. 14)(“Frewing MTD”). The parties have
not filed any objections to the PFRD, which waives their
right to review of the PFRD. See United States
v. One Parcel of Real Prop., 73 F.3d 1057, 1060 (10th
Cir. 1996)(“One Parcel”). Because the
Court concludes that the PFRD by the Honorable Steven C.
Yarbrough United States Magistrate Judge for the United
States District Court for the District of New Mexico is not
clearly erroneous, arbitrary, obviously contrary to law, or
an abuse of discretion, the Court will: (i) adopt the PFRD as
its own; (ii) grant the Dill MTD; and (iii) grant the Brewing
MTD. Accordingly, the Court will dismiss the Complaint to
Recover Compensatory, Consequential and Punitive Damages for
Defendants' Breach of Contract, Promissory Estoppel, and
Negligent Misrepresentation, filed June 23, 2017 (Doc.
1)(“Complaint”), with prejudice.
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 to
those recommendations: “Within 14 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.” Fed.R.Civ.P.
72(b). Finally, when resolving objections to a Magistrate
Judge's recommendation, “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.” One Parcel, 73
F.3d at 1059 (quoting Thomas v. Arn, 474 U.S. 140,
147 (1985)). As the United States Court of Appeals for 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 Fed.Appx. 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 of America -- 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 the