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, a Nevada corporation, and CRAIG DILL, Chapter 11 Trustee, Defendants.
Jaramillo Santa Fe, New Mexico Plaintiff pro se.
Duran Santa Fe, New Mexico Plaintiff pro se.
Railyard Brewing Company LLC Santa Fe, New Mexico Plaintiff.
Ringside Entertainment LLC Albuquerque, New Mexico Plaintiff.
William R. Keleher Smidt, Reist & Keleher, P.C.
Albuquerque, New Mexico Attorneys for Defendants David
Frewing and U.S. Bowling Corporation.
D. Walker Leslie D. Maswell Walker & Associates, P.C.
Albuquerque, New Mexico Attorneys for Defendant Craig Dill.
ORDER OVERRULING PLAINTIFF JARAMILLO'S OBJECTIONS
AND ADOPTING THE MAGISTRATE JUDGE'S PROPOSED FINDINGS AND
MATTER comes before the Court on Plaintiff Rick
Jaramillo's Motion to Set Aside Final Judgment and Allow
Plaintiff Rick Jaramillo to Answer the Defendants' Motion
to Dismiss Due to Excusable Neglect, filed September 27, 2018
(Doc. 23)(“Motion to Set Aside”). In his Proposed
Findings and Recommended Disposition, filed February 1, 2019
(Doc. 29)(“PFRD”), the Honorable Steven C.
Yarbrough, United States Magistrate Judge for the District of
New Mexico, found that Plaintiff Rick Jaramillo's Motion
to Set Aside did not make the showing necessary under the
excusable neglect standard to set aside the final judgment.
See PFRD at 5-6. Judge Yarbrough recommended,
therefore, that the Court deny the motion. See PFRD
at 1, 6. On February 15, 2019, Jaramillo timely filed his
Objection to Proposed Findings and Recommended Disposition to
Allow Plaintiff Rick Jaramillo to Answer the Defendants
Motion to Dismiss Due to Excusable Neglect and Motions the
Court to Set Aside Recommended Disposition and Allow
Plaintiff to Re-File Complaint Against Defendant U.S. Bowling
and David Frewing, filed February 15, 2019 (Doc.
30)(“Objections”). Jaramillo's 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 rule 72 of the Federal Rules of Civil Procedure.
See 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). See 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). See 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 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
Court has considered Jaramillo's Motion to Set Aside
Judgment; the Defendant Chapter 11 Trustee Craig H.
Dill's Objection to Motion to Set Aside Final Judgment
and Allow Plaintiff Rick Jaramillo to Answer the Defendants
[sic] Motion to Dismiss Due to Excusable Neglect, filed
October 11, 2018 (Doc. 24); the Defendant David Frewing and
U.S. Bowling's Joinder and Support of Response (Doc. No.
24) Filed by Defendant Craig Dill, filed October 11, 2018
(Doc. 25); the Magistrate Judge's PFRD, and
Jaramillo's Objections in light of the foregoing
standards, and has conducted a de novo review. Based
on the Court's review, the Court concludes that
Jaramillo's Objections to the Magistrate Judge's PFRD
are either waived, or lack a basis in the relevant facts or
applied law. In his Objections, Jaramillo, for the first
time, seeks the Court's leave to amend his complaint
“to name only U.S. Bowling and David Frewing as
defendants, and remove Craig Dill as a defendant due to
ongoing U.S. Bankruptcy Case involving Mr. Craig Dill.”
Objections at 1. This issue is waived. See Marshall v.
Chater, 75 F.3d at 1426 (finding that issues raised for
the first time in objections to the Magistrate Judge's
recommendation are deemed waived).
also reargues the reason for his failure to timely respond to
Defendant Chapter 11 Trustee Craig H. Dill's Amended
Motion to Dismiss and to Sanction Plaintiffs, filed November
6, 2017 (Doc. 12), and Defendant David Frewing and U.S.
Bowling's Amended Motion to Dismiss, or, in the
Alternative, to Stay the Proceeding, filed November 15, 2017
(Doc. 14)(collectively, “Motions to Dismiss”),
i.e., health issues which he experienced in July,
2018, related to shoulder and chest pain. See
Objections at 1-2. To this excuse, he adds that, in December,
2017, he was helping a family member secure treatment for a
cancer diagnosis and was, therefore, unable to respond to the
Defendants' Motions to Dismiss. See Objections
at 4-5. The Court agrees with Magistrate Judge Yarbrough that
Jaramillo's original stated reasons for failing to
respond timely do not constitute excusable neglect.
Jaramillo's new excuse -- that he was busy helping a
family member diagnosed with cancer -- the Court first notes
the lateness of this argument. Jaramillo should have
presented it in his original motion and, because he did not,
the Court need not consider it. See Marshall v.
Chater, 75 F.3d at 1426. Even considering the argument
and taking Jaramillo's assertion as true, however, the
facts Jaramillo asserts fail to advance his argument. First,
Jaramillo's responses to the Motions to Dismiss were due
in November, 2017 -- before the December, 2017, timeframe
Jaramillo asserts he began assisting the family
member. Second, Jaramillo's new excuse does
not address why he did not respond at all or seek an
extension of time to do so, in the nine months from the time
that the Defendants filed their Amended Motions to Dismiss
until the Court entered Final Judgment. Accordingly,
Jaramillo has not provided the Court with a valid reason for
his failure to respond to the Defendants' Motions to
Dismiss, and has not provided any objections to the remaining
legal analysis in the PFRD. See Pioneer Inv. Servs. Co.
v. Brunswick Assocs. Ltd. P'ship, 507 U.S. 380, 395
(1993)(instructing that, in analyzing excusable neglect, the
court must consider “all relevant circumstances
surrounding the party's omission”). See also
United States v. Torres, 372 F.3d 1159, 1163 (10th Cir.
2004)(explaining that the most important factor to consider
is the reason for the delay).
its de novo review, therefore, the Court concludes that the
Magistrate Judge Yarbrough's recommendation is not
erroneous, arbitrary, contrary to law, or an abuse of
discretion. Accordingly, the Court adopts the Magistrate
Judge Yarbrough's PFRD and overrules Jaramillo's
IS ORDERED that Plaintiff Rick Jaramillo's
Motion to Set Aside Final Judgment and Allow Plaintiff Rick
Jaramillo to Answer the Defendants' Motion to Dismiss Due