Mosch et al v. Henry et al

Filing 152

ORDER. The 144 Recommendation of United States Magistrate Judge is accepted and the Order therein is affirmed. By Judge Philip A. Brimmer on 1/28/13.(mnfsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Philip A. Brimmer
Civil Action No. 11-cv-02438-PAB-BNB
ALVIN MOSCH,
PATRICIA C. MOSCH,
DAVID K. MOSCH,
Each Individually and dba Mosch Mining Company,
Plaintiffs,
v.
JOHN HENRY, aka John T. Henry, aka John L. Henry,
UNITED STATES REAL ESTATE CORPORATION, and
any one claiming by or through any of the named persons,
Defendants.

ORDER

This matter is before the Court on the Recommendation of United States
Magistrate Judge (the “Recommendation”) [Docket No. 144] filed on November 6, 2012.
The magistrate judge recommends that the Court (1) declare seven documents that
defendant John Henry recorded in Clear Creek County, Colorado to be spurious and
invalid under Colo. Rev. Stat. § 38-35-201(3) and (2) release those documents
pursuant to Colo. Rev. Stat. § 38-35-204(2).1 Docket No. 144 at 9. The magistrate
judge further recommends that the Court deny plaintiffs’ request for a permanent
injunction and award plaintiffs attorney’s fees and costs. On November 23, 2012, Mr.

1

The magistrate judge found that the documents bearing the reception numbers
234546, 234547, 234548, 235276, 248446, 258531, and 260614 are spurious. Docket
No. 144 at 9, ¶ 19a.

Henry filed timely objections [Docket No. 149] to the recommendation.2 No other
objections have been filed to the Recommendation.
In light of defendant’s pro se status, the Court reviews his filings liberally. See
Haines v. Kerner, 404 U.S. 519, 520 (1972); Hall v. Bellmon, 935 F.2d 1106, 1110 n. 3
(10th Cir. 1991). However, the Court may not act as a pro se litigant’s advocate, nor
should the Court “supply additional factual allegations to round out [the pro se litigant’s]
[filings] or construct a legal theory on [his] behalf.” Whitney v. N.M., 113 F.3d 1170,
1173-74 (10th Cir. 1997) (citing Hall, 935 F.2d at 1110).
The Court must “determine de novo any part of the magistrate judge’s disposition
that has been properly objected to.” FED . R. CIV. P. 72(b)(3). An objection is “proper” if
it is both timely and specific. United States v. One Parcel of Real Property Known As
2121 East 30th St., 73 F.3d 1057, 1059 (10th Cir. 1996). To be sufficiently specific, an
objection must “enable[] the district judge to focus attention on those issues—factual
and legal—that are at the heart of the parties’ dispute.” See id. (quoting Thomas v. Arn,
474 U.S. 140, 147 (1985)). In the absence of a proper objection, the Court may review
a magistrate judge’s recommendation under any standard it deems appropriate. See
2

On December 10, 2012, Mr. Henry filed an untimely addendum to his
objections. Docket No. 150. The Tenth Circuit applies a “firm waiver rule” pursuant to
which courts disregard responses to a magistrate judge’s recommendation that are not
timely filed. Duffield v. Jackson, 545 F.3d 1234, 1237 (10th Cir. 2008). There are two
exceptions: ”when (1) a pro se litigant has not been informed of the time period for
objecting and the consequences of failing to object, or when (2) the ‘interests of justice’
require review.” See id. (internal citations omitted). The first exception does not apply
here, as Mr. Henry states in his objections that “[f]ourteen days places an undue burden
and stress on an ill man of 85,” signaling his awareness of the filing deadline. Docket
No. 149 at 2. The second exception does not apply either, as Mr. Henry has not shown
that the interests of justice require the Court to consider the addendum. Accordingly,
the Court will not consider the addendum in reviewing the Recommendation.
2

Summers v. Utah, 927 F.2d 1165, 1167 (10th Cir. 1991); see also Thomas, 474 U.S. at
150 (“[i]t 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”).
Underlying facts are set forth in the Recommendation and will not be restated
here. Mr. Henry objects to the exclusion of a number of documents that he filed three
days before or in the six weeks following the evidentiary hearing held on September 27,
2012. Docket Nos. 114, 116-118, 120-124, 126-130, 133-140 (filed between
September 24, 2012 and November 13, 2012). The magistrate judge properly excluded
these from review, given that their untimely filing deprived plaintiffs of a chance to
respond.3 See Stump v. Gates, 211 F.3d 527, 533 (10th Cir. 2000) (declining to
consider arguments raised late because doing so would “rob[]” the opposing party of an
“opportunity to demonstrate that the record does not support [a party’s] factual
assertions and to present an analysis of the pertinent legal precedent that may compel
a contrary result.”); see also Practice Standards (Civil cases), Judge Philip A. Brimmer
§ III.C.2. (“Untimely or noncomplying objections . . . may be denied without prejudice,
stricken, or ignored.”). Moreover, Mr. Henry has not offered any explanation as to why
he was unable to file these documents prior to the evidentiary hearing.
Mr. Henry’s remaining objections consist of unsubstantiated allegations, see,
e.g., Docket No. 149 at 3 (“The only documents ever altered or forged were altered or
3

The Court notes that many, if not all, of these documents violate the Local
Rules of this District. See D.C.COLO.LCivR 10.1G (“All papers and signatures shall be
legible.”); 10.1J (outlining the requirements for captions); 10.1K (informing parties of the
requirements for signature blocks).
3

forged by the Mosch Mining Co.”), information that supports plaintiffs’ argument, see,
e.g., Docket No. 149 at 3 (“I gave the Sunshine Lode back to Alvin Mosch because he
was weeping and said he made a mistake, and that he was about to lose his family, so I
had Mr. Shelton convey it back to him”), vague threats, see, e.g., Docket No. 149 at 5
(“All of these tactics are going to fall on someone like a ton of bricks and the truth will
come out”), and irrelevant speculation, see, e.g., Docket No. 149 at 7 (“I cannot help
but believe the big push is the increase in the price of gold per ounce”). Mr. Henry’s
objections are not sufficiently specific to allow the Court to “focus attention on those
issues” that are “at the heart of the parties’ dispute” and thus do not constitute proper
objections. See Thomas, 474 U.S. at 147.
The Court has reviewed the substantive discussions in the Recommendation and
has found that there is “no clear error on the face of the record,”4 see Fed. R. Civ. P.
72(b), Advisory Committee Notes. Accordingly, it is
ORDERED that the Recommendation of United States Magistrate Judge [Docket
No. 144] is ACCEPTED and the Order therein is AFFIRMED.

DATED January 28, 2013.
BY THE COURT:

s/Philip A. Brimmer
PHILIP A. BRIMMER
United States District Judge

4

This standard of review is something less than a “clearly erroneous or contrary
to law” standard of review, Fed. R. Civ. P. 72(a), which in turn is less than a de novo
review. Fed. R. Civ. P. 72(b).
4