United States District Court, D. New Mexico
ORDER OVERRULING DEFENDANTS' OBJECTIONS AND
ADOPTING MAGISTRATE JUDGE'S PROPOSED FINDINGS AND
VÁZQUEZ UNITED STATES DISTRICT JUDGE.
MATTER is before the Court on Federal
Defendants' Motion to Dismiss and Memorandum in Support
(Doc. 14), filed December 22, 2017. In her Proposed Findings
and Recommended Disposition (“PFRD”), filed
September 6, 2018 (Doc. 34), United States Magistrate Judge
Kirtan Khalsa recommended that Federal Defendants' Motion
to Dismiss be granted on the ground that the Court lacks
subject-matter jurisdiction over Plaintiff's claims.
(Doc. 34 at 15.) On September 18, 2018, Plaintiff's
Objections to Findings and Recommendations of Magistrate
Judge were filed (Doc. 35), and those Objections are now
before the Court.
courts may refer dispositive motions to a magistrate judge
for a recommended disposition pursuant to 28 U.S.C. §
636 and Federal Rule of Civil Procedure 72. 28 U.S.C. §
636(b)(1)(B); Fed.R.Civ.P. 72(b)(1). “Within 14 days
after being served with a copy of the [magistrate
judge's] recommended disposition, a party may serve and
file specific written objections to the proposed findings and
recommendations.” Fed.R.Civ.P. 72(b)(2); 28 U.S.C.
§ 636(b)(1). 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); 28 U.S.C. § 636(b)(1).
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. One Parcel
of Real Prop., 73 F.3d 1057, 1060 (10th Cir.
1996). Further, “[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 also 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 report are deemed waived.”).
Court has considered the Motion to Dismiss, Plaintiff's
Response in Opposition, Defendant's Reply, the Magistrate
Judge's PFRD, and Plaintiff's Objections in light of
the foregoing standards, and has conducted a de novo
review. Based on this review, the Court finds that
Plaintiff's Objections to the Magistrate Judge's PFRD
are unfounded. Plaintiff challenges the PFRD on the ground
that it failed to take 47 U.S.C. Section 703(c) into account.
(Doc. 35 at 2.) The Court notes, however, that while
Plaintiff's complaint cites Section 703(c) exclusively in
the allegations section, none of Plaintiff's claims were
brought under that provision. (Doc. 1 at 3.) Even assuming
that Plaintiff intended to raise a claim under Section
703(c), any such claim is moot because 47 U.S.C. Section
703(c) was repealed on March 23, 2018. Pub. L.
No. 115-141, § 402(b), 132 Stat. 1089 (2018).
also objects to the PFRD on the ground that Judge Khalsa did
not address Executive Orders 13616 and 13821. (Doc. 35 at 3.)
Although Plaintiff cited these executive orders, and attached
them as exhibits to Response to Defendant's Motion to
Dismiss, Plaintiff's claims were not premised on the
executive orders nor could Plaintiff have reasonably based
its claims on the orders. Each executive order submitted for
the Court's consideration plainly states that the order
“does not create any right or benefit, substantive or
procedural, enforceable at law or in equity by any party
against the United States, its departments, agencies, or
entities, its officers, employees, or any other
person.” (Doc. 17-2 at 5; Doc. 17-4 at 4.) Furthermore,
the Court, having reviewed the Executive Orders, is not
persuaded that they are material to the Court's analysis.
Plaintiff's objection in this regard shall be overruled.
also objects to the PFRD on the ground that it implies that a
SF-299 was “made available to . . . Plaintiff at the
time” that Plaintiff submitted its request to place
telecommunications facilities on Tesuque Peak. (Doc. 35 at
7.) The Court does not construe the PFRD as implying such.
Even if it did, however, the validity of such an implication
does not bear on the Court's conclusion that the PFRD
should be adopted. As discussed in the PFRD, it is within
Plaintiff's grasp to submit a SF-299, and Plaintiff may
do so without this Court's intervention. (Doc. 34 at 14.)
As such, Plaintiff does not have standing to pursue a claim
based on the Forest Service's purported failure to
provide, or require Plaintiff to submit a SF-299. See
Nat'l Family planning & Reprod. Health Ass'n,
Inc., 468 F.3d at 831 (holding that where a plaintiff
“has within its grasp an easy means for
alleviating” an alleged injury, but has failed to do so
and has, instead, “chosen to remain in the
lurch” the plaintiff “cannot demonstrate an
injury sufficient to confer standing”).
Plaintiff objects to the PFRD on the ground that Judge Khalsa
failed to address its request for leave to amend its
complaint. (Doc. 35 at 2.) The Court observes that, in the
concluding paragraph of its Response to Defendant's
Motion to Dismiss, Plaintiff “humbly request[ed] leave
to amend should this Court find cause to dismiss any of
Plaintiff's claims.” (Doc. 17 at 16.)
Plaintiff's request to amend, such as it is, fails to
alert the Court of the grounds on which Plaintiff should be
permitted to amend its complaint, and it fails to alert the
Court of the substance of any prospective amendment. That
Judge Khalsa did not address this request in the PFRD does
not affect the Court's view of the analysis or conclusion
Court notes, further, that Plaintiff's Objections include
a notice of intent to amend its Complaint to request
injunctive relief and/or declaratory relief pursuant to 47
U.S.C. Section 704; 47 U.S.C. Section 1455, and Executive
orders 1316 and 13821. Amendment of pleadings is governed by
Rule 15 of the Federal Rules of Civil Procedure, and by local
Rule of Civil Procedure 15.1. Because Plaintiff failed to
file its amended petition within twenty one days of
Defendants' answer, it is not entitled to amend as a
matter of course. See Fed. R. Civ. P. 15(a)(1).
Rather it may only amend its complaint with Defendants'
consent or with this Court's leave. Id.
15(a)(2). Defendants have not consented to the amendment,
and, although the “Court should freely give leave [to
amend] when justice so requires, ” id., leave
to amend may be denied for “undue delay, bad faith or
dilatory motive on the part of the movant . . . undue
prejudice to the opposing party, [or] futility[.]”
First City Bank v. Air Capitol Aircraft Sales, 820
F.2d 1127, 1132 (10th Cir. 1987). Plaintiff, at this late
stage has failed to adequately articulate a basis for
amendment to allow the Court to address whether such an
amendment would be futile. Moreover, Plaintiff's request
is not properly made as a motion in accordance with Local
Rule 15.1, which requires the party seeking to amend to
submit a proposed amendment to the pleading together with a
motion to amend. See D.N.M.LR-Civ. 15.1 (“A
proposed amendment to a pleading must accompany the motion to
amend”). Plaintiffs request to file an amended
complaint shall be denied.
short, following its de novo review, the Court finds
no fault with the Magistrate Judge's PFRD, and discerns
nothing that might usefully be added to it. Thus, rather than
repeat what the Magistrate Judge has already written, the
Court hereby ADOPTS the Magistrate Judge's PFRD and
OVERRULES Defendants' Objections.
IS THEREFORE ORDERED that
(1) Federal Defendants' Motion to Dismiss and Memorandum
in Support (Doc. 14), filed December 22, 2017, is
GRANTED on the ground that the Court lacks
subject-matter jurisdiction over Plaintiffs claims.
(2) Plaintiffs Request to File an Amended Complaint, raised
in its Objections, (Doc. 35) is DENIED