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C De Baca v. Town of Bernalillo ex rel. Town of Bernalillo Police Department

United States District Court, D. New Mexico

April 3, 2019

CASSANDRA C DE BACA, as Personal Representative of the ESTATE OF BEN C DE BACA, deceased, Plaintiff,
TOWN OF BERNALILLO, ex rel. TOWN OF BERNALILLO POLICE DEPARTMENT; OFFICER JEREMIAH BENJEY, sued in his individual capacity; OFFICER SHAWN VIGIL, sued in his individual capacity; COUNTY OF SANDOVAL, ex rel. SANDOVAL COUNTY SHERIFF'S DEPARTMENT; OFFICER PATRICK SEGURA, sued in his individual capacity, SERGEANT JAMES LAPORTE, sued in his individual capacity; OFFICER JOHN DOE, 1-10, sued in their individual capacities, Defendants.

          Ahmad Assed Richard J. Moran Law Office of Ahmad Assed Kevin P. Holmes Holmes Law Firm Attorneys for the Plaintiff

          James P. Sullivan Christina L. Brennan Brennan & Sullivan, P.A. Attorneys for Town of Bernalillo, ex rel. Town of Bernalillo Town of Bernalillo Police Department, Officer Jeremiah Benjey, and Officer Shane Vigil

          Michael Dickman Law Office of Michael Dickman Attorney for Defendants County of Sandoval and Officer Patrick Segura

          Robert W. Becker YLAW, P.C. Attorneys for Defendant Sergeant James LaPorte


         THIS MATTER comes before the Court on: (i) the Joint Motion to Approve Settlement, filed December 14, 2018 (Doc. 70)(“Motion”); and (ii) the Magistrate Judge's Proposed Findings and Recommended Disposition, filed February 4, 2019 (Doc. 82)(“PFRD”). The parties agreed to waive their objection period. See PFRD at 7. The Court concludes that the conclusions of the Honorable Laura Fashing, United States Magistrate Judge for the District of New Mexico, are not clearly erroneous, arbitrary, obviously contrary to law, or an abuse of discretion, and the Court therefore adopts them. The Court therefore approves the proposed settlement between Plaintiff Cassandra C de Baca and Defendants Town of Bernalillo and the Town of Rio Rancho as it relates to the three minor beneficiaries of Ben C de Baca's wrongful death estate and grants the Motion.


         District 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 the parties' consent, to hear a pretrial matter dispositive of a claim or defense or a prisoner petition challenging the conditions of confinement.”). Rule 72(b)(2) 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 St., 73 F.3d 1057, 1059 (10th Cir. 1996)(internal quotation marks omitted)(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, [2] including judicial efficiency.” United States v. 2121 E. 30th St., 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 has 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 St., 73 F.3d at 1060. “To further advance the polices 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.'” United States v. 2121 E. 30th St., 73 F.3d at 1059 (quoting Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991)). “[O]nly an objection that is sufficiently specific to focus the district court's attention to the factual and legal issues that are truly in dispute will advance the policies behind the Magistrate's Act . . . .” United States v. 2121 E. 30th St., 73 F.3d at 1060. 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.”). In an unpublished order and judgment, 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. 2007)(unpublished).[3]

         In United States v. 2121 East 30th Street, the Tenth Circuit, in accord with other Courts of Appeals, expanded the waiver rule to cover objections that are timely but too general. See United States v. 2121 E. 30th St., 73 F.3d at 1060. The Supreme Court of the United States -- 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's report than the court considers appropriate. Moreover, the Subcommittee that drafted and held hearings 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 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 ยง 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 ...

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