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Moya v. Fnu Lnu

United States District Court, D. New Mexico

September 21, 2018

CYNTHIA MOYA, Appellant,
v.
FNU LNU, Appellee.

          MEMORANDUM OPINION AND ORDER ADOPTING THE MAGISTRATE JUDGE'S PROPOSED FINDINGS AND RECOMMENDED DISPOSITION, AND DISMISSING THE BANKRUPTCY APPEAL

         THIS MATTER comes before the Court on the Magistrate Judge's Proposed Findings and Recommended Disposition, filed May 29, 2018 (Doc. 9)(“PFRD”), advising that the Court: (i) deny the Appellant's Motion [for] Payment of Fees, filed November 29, 2017 (Doc. 7)(“Motion”); and (ii) dismiss this bankruptcy appeal as untimely and for lack of jurisdiction. The parties do not object to the PFRD, thereby waiving their right to review of the proposed ruling. See United States v. 2121 E. 30th Street, 73 F.3d 1057, 1060 (10th Cir. 1996). Further, upon review of the record, the Court concludes the findings and recommended disposition proposed by the Honorable Gregory Fouratt, United States Magistrate Judge of the District of New Mexico, are not clearly erroneous, arbitrary, obviously contrary to law, or an abuse of discretion. The Court will therefore: (i) adopt the PFRD; (ii) deny the Appellant's Motion; and (iii) dismiss this bankruptcy appeal.

         BACKGROUND

         This appeal challenges an unspecified ruling that the Bankruptcy Court made in Appellant Cynthia Moya's Chapter 7 bankruptcy case, [1] No. 17-10839-j7. See Clerk's Certificate of Service of Notice of Appeal, filed September 26, 2017 (Doc. 1). By an Order entered November 17, 2017, the Court referred the case to Magistrate Judge Fouratt for proposed findings and a recommended disposition. See Order of Reference Relating to Bankruptcy Appeals, filed November 17, 2017 (Doc. 6). On November 29, 2017, Moya filed the Motion, which “authoriz[es] the clerk of court to receive payment for services rendered due in the above mentioned case(s)” using the attached social security form “SSA 445.” Motion at 1.

         On February 21, 2018, Magistrate Judge Fouratt issued a Memorandum Opinion and Order to Show Cause. See Doc. 8 (“MOO”). The MOO directed Moya to show cause why the Court should not dismiss the bankruptcy appeal for lack of jurisdiction, as it was filed more than fourteen days after the last pre-appeal order, judgment, or decree in Bankruptcy No. 17-10839-j7. See MOO at 4. See also In re Latture, 605 F.3d 830, 833 (10th Cir. 2010)(noting district courts lack jurisdiction over untimely bankruptcy appeals). Moya has not responded to the MOO. On May 29, 2018, Magistrate Judge Fouratt issued the PFRD, recommending the Court dismiss the appeal as untimely and for lack of jurisdiction. See PFRD at 1. Magistrate Judge Fouratt further recommends that the Court deny the Motion. See PFRD at 1. Moya never appeared or objected to the PFRD.

         LAW REGARDING BANKRUPTCY APPEALS

         District courts have jurisdiction pursuant to 28 U.S.C. § 158(a) to hear appeals from the Bankruptcy Courts' final judgments, orders, and decrees. The district court applies the same standards of review that govern appellate review in other cases. See, e.g., Sender v. Johnson (In re Hedged-Investments Assocs., Inc.), 84 F.3d 1267, 1268 (10th Cir. 1996). The Bankruptcy Court's legal determinations are reviewed de novo, and its factual findings are reviewed for clear error. See Phillips v. White (In re White), 25 F.3d 931, 933 (10th Cir. 1994).

         Section 158 of Title 28 describes the appellate process in bankruptcy cases. It provides: “An appeal under subsections (a) and (b) of this section shall be taken in the same manner as appeals in civil proceedings generally are taken to the courts of appeals from the district courts and in the time provided by Rule 8002 of the Bankruptcy Rules.” 28 U.S.C. § 158(c)(2). The United States Court of Appeals for the Tenth Circuit has reiterated this rule, noting the “time limits that govern [a bankruptcy] appeal are . . . set forth in the Bankruptcy Rules.” In re Latture, 605 F.3d at 838.

         Rule 8002(a) of the Federal Rules of Bankruptcy Procedure provides: “[A] notice of appeal must be filed . . . within 14 days after entry of the judgment, order, or decree being appealed.” As Magistrate Judge Fouratt correctly observed, the “‘failure to file a timely notice of appeal [is] a jurisdictional defect barring appellate review' of a bankruptcy court's order.” In re Latture, 605 F.3d at 831 (alteration in original)(citations omitted). See United States v. Spaulding, 802 F.3d 1110, 1130 (10th Cir. 2015)(“Rule 8002 . . . is jurisdictional because a federal statute [28 U.S.C. § 158(c)(2)] explicitly directs that [bankruptcy] appeals ‘be taken . . . in the time provided by Rule 8002 of the Bankruptcy Rules.'” (citations omitted)).

         LAW REGARDING OBJECTIONS TO PROPOSED FINDINGS AND RECOMMENDATIONS

         District courts may refer dispositive matters 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 the parties' consent, to hear a pretrial matter dispositive of a claim or defense . . . .”). Rule 72(b)(2) of the Federal Rules of Civil Procedure governs objections: “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)(2). Finally, when resolving objections to a magistrate judge's proposal, “[t]he 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.” Fed.R.Civ.P. 72(b)(3). Similarly, 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).

         “The filing of objections to a 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. 2121 E. 30th Street, 73 F.3d at 1059 (10th Cir. 1996)(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 [28 U.S.C. §§ 631-39], including judicial efficiency.” United States v. 2121 E. 30th Street, 73 F.3d at 1059 (citing Niehaus v. Kan. Bar Ass'n, 793 F.2d 1159, 1165 (10th Cir. 1986); United States v. Walters, 638 F.2d 947, 949 (6th Cir. 1981)).

         The Tenth Circuit held “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.” United States v. 2121 E. 30th Street, 73 F.3d at 1060. “To further advance the policies behind the Magistrate's Act, [the Tenth Circuit], like numerous other circuits, have 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.'” United States v. 2121 E. 30th Street, 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, 1031 (10th Cir. 2001)(“In this circuit, theories raised for the first time in objections to the magistrate judge's ...


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