United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER ADOPTING THE MAGISTRATE
JUDGE'S PROPOSED FINDINGS AND RECOMMENDED DISPOSITION,
AND DISMISSING THE BANKRUPTCY APPEAL
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
appeal challenges an unspecified ruling that the Bankruptcy
Court made in Appellant Cynthia Moya's Chapter 7
bankruptcy case,  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.
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.
REGARDING BANKRUPTCY APPEALS
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).
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.
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)).
REGARDING OBJECTIONS TO PROPOSED FINDINGS AND
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).
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
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 ...