Bowman v. Friedman

• Decision Date: 31 August 2022
• Docket Number: Civ. 21-0675 JB\SCY
• Parties: DANIELA BOWMAN, Plaintiff, v. CORDELIA FRIEDMAN, Defendant.
• Court: U.S. District Court — District of New Mexico

DANIELA BOWMAN, Plaintiff,
v.
CORDELIA FRIEDMAN, Defendant.

Civ. No. 21-0675 JB\SCY

United States District Court, D. New Mexico

August 31, 2022

MEMORANDUM OPINION AND ORDER ADOPTING THE MAGISTRATE JUDGE'S PROPOSED FINDINGS AND RECOMMENDED DISPOSITION

THIS MATTER comes before the Court on: (i) the Proposed Findings and Recommended Disposition Regarding Motion to Dismiss; (ii) Defendant Cordelia Friedman's Motion to Dismiss, filed October 27, 2021 (Doc. 19)(“MTD”); and (iii) Plaintiff's Motion for Leave to File Sur-reply in Opposition to Defendant's Motion to Dismiss, filed November 17, 2021 (Doc. 30)(“Surreply Motion”). Plaintiff Daniela Bowman is proceeding pro se. The Court referred these matters to the Honorable Steven C. Yarbrough, United States Magistrate Judge for the United States District Court of the District of New Mexico, see Order of Reference Relating to Non-Prisoner Pro Se Cases, filed January 31, 2022 (Doc. 44), who entered the Proposed Findings and Recommended Disposition Regarding Motion to Dismiss, filed June 7, 2022 (Doc. 52)(“PFRD”). In the PFRD, Magistrate Judge Yarbrough recommends that the Court deny the Surreply Motion and grant the MTD. See PFRD at 9. On June 21, 2022, Bowman timely objected to the PFRD. See Plaintiff's Objections to Court's Proposed Findings and Recommended Disposition Regarding Motion to Dismiss, filed June 21, 2022 (Doc. 53)(“Objections”). Bowman's Objections are now before the Court.

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The Court has considered Defendant Cordelia Friedman's MTD, Plaintiff's Response to Defendant Cordelia Friedman's Motion to Dismiss, filed October 29, 2021 (Doc. 22), Defendant Cordelia Friedman's Reply in Support of Her Motion to Dismiss, filed November 12, 2021 (Doc. 26)(“Reply”), Bowman's Surreply Motion, Defendant Cordelia Friedman's Response in Opposition to Plaintiff's Motion for Leave to File Sur-reply in Opposition to Defendant's Motion to Dismiss, filed November 29, 2021 (Doc. 34), Plaintiff's Reply in Support of Her Motion for Leave to File Sur-reply, filed November 30, 2021 (Doc. 36), the PFRD, and Bowman's Objections, in light of the legal standards described below and has conducted a de novo review of the PFRD portions to which Bowman objects. Based on the Court's review, the Court concludes that Bowman's Objections to Magistrate Judge Yarbrough's PFRD are not sound and therefore grants the MTD and denies the Surreply Motion.

LEGAL STANDARD REGARDING OBJECTIONS TO PROPOSED FINDINGS AND RECOMMENDATIONS

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) 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

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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. One Parcel of Real Property, With Buildings, Appurtenances, Improvements, and Contents, Known As: 2121 East 30th Street, Tulsa Okla., 73 F.3d 1057, 1059 (10th Cir. 1996)(“One Parcel”)(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/^[1] including judicial efficiency.” One Parcel, 73 F.3d at 1059 (citing Niehaus v. Kansas Bar Ass'n, 793 F.2d 1159, 1165 (10th Cir. 1986)); United States v. Walters, 638 F.2d 947, 950 (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.” One Parcel, 73 F.3d at 1060. “To further advance the policies 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

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questions.'” One Parcel, 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 on the factual and legal issues that are truly in dispute will advance the policies behind the Magistrate's Act.” One Parcel, 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 opinion, the Tenth Circuit states 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).^[2]

In One Parcel, in accord with other Courts of Appeals, the Tenth Circuit expanded the waiver rule to cover objections that are timely but too general. See One Parcel, 73 F.3d at 1060. The Supreme Court of the United States of America -- in the course of approving the United States

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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)(hereinafter Senate Report); H.R. Rep. No. 94-1609, p. 11 (1976), U.S. Code Cong. & Admin. News 1976, p. 6162 (hereinafter 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)(hereinafter Senate Hearings). The Committee also heard Judge [Charles] 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 § 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 the magistrate's report would file objections, and those objections would trigger district court review. There is no indication that Congress, in enacting § 636(b)(1)(C)), intended to require a district judge to review a magistrate's report to which no objections are filed. It did not preclude treating the failure to

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