Mosch et al v. Henry et al

Filing 217

ORDER. The 197 Recommendation of United States Magistrate Judge is accepted. The laims of Exemption [Docket Nos. 179-82, 185, 190-93, 195-96, 198-206, and 211-12] are denied. The stay imposed pursuant to Colo. Rev. Stat. § 13-55-103[Docket No. 184] is lifted. The United States Marshal for the District of Colorado is directed to undertake all necessary proceedings to sell the property subject toexecution. By Judge Philip A. Brimmer on 12/12/13.(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 and Order (the “Recommendation”) [Docket No. 197] filed on
December 3, 2013. The magistrate judge recommends that the Court deny the Claims
of Exemption [Docket Nos. 179-82, 185, 190-93, 195-96]1 filed by defendant John
Henry, lift the stay imposed pursuant to Colo. Rev. Stat. § 13-55-103 [Docket No. 184],
and direct the United States Marshal for the District of Colorado to undertake all
necessary proceedings to sell the property subject to execution. See Docket Nos.
170-73 and 177. On December 9, 2013, Mr. Henry filed timely objections [Docket No.

1

Mr. Henry filed a set of identical claims of exemption on December 3, 2013.
See Docket Nos. 198-206 and 211-12.

215] to the recommendation.2 No other objections have been filed.
In light of Mr. Henry’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
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
2

Mr. Henry also filed several documents on December 3, 2013 that do not
appear to be objections to the Recommendation, but rather arguments regarding the
merits of the underlying case. See Docket Nos. 207-209 and 213-14 (“Violation of John
Henry’s Constitutional Rights - Due Process Clause”); Docket No. 210 (“Statute of
Limitations and Lachees [sic] - Claim Exemption”). Final judgment entered in this case
on February 6, 2013, ten months before defendant sought to raise these arguments,
and defendant has not filed a motion for relief from judgment pursuant to Federal Rule
of Civil Procedure 60. As arguments on the merits of the underlying judgment do not
address the basis for the Recommendation, they are not proper objections and the
Court will not consider them in this Order.
2

magistrate’s factual or legal conclusions, under a de novo or any other standard, when
neither party objects to those findings”).
The facts of this case are set forth in detail in the Recommendation of United
States Magistrate Judge [Docket No. 144] and will not be recited here. Mr. Henry
objects to the Recommendation on the grounds that he should be permitted to
represent defendant United States Real Estate Corporation (“USREC”) in these
proceedings because he is the sole owner of the company. As the magistrate judge
explained, it is a “long-standing rule” in the Tenth Circuit that a “corporation must be
represented by an attorney to appear in federal court.” Tal v. Hogan, 453 F.3d 1244,
1254 (10th Cir. 2006); see also Harrison v. Wahatoyas, L.L.C., 253 F.3d 552, 556 (10th
Cir. 2001) (“As a general matter, a corporation or other business entity can only appear
in court through an attorney and not through a non-attorney corporate officer appearing
pro se.”). Since Mr. Henry is not an attorney, he cannot represent USREC in these
proceedings, regardless of his sole ownership of the enterprise. See id. Accordingly,
this objection is unavailing.
Mr. Henry seeks to reintroduce arguments on the underlying merits of the case
that the Court has already considered and rejected. Compare Docket No. 215 at 3-4
with Docket No. 149 at 2-3 and Docket Nos. 144 and 152. These arguments do not
concern the specific bases for the Recommendation currently before the Court and do
not trigger the right to de novo review under Rule 72(b)(3). See Thomas, 474 U.S. at
147. In addition, Mr. Henry generally disputes the magistrate judge’s conclusions
without setting forth a specific legal or factual contention. See, e.g., Docket No. 215 at

3

2 (“For reasons assigned I make a motion again for a complete de novo appeal, review
and a trial de novo.”); id. at 2 (“The claims do not fail by their merits.”). These are not
proper objections because they do not draw the Court’s attention to the particular
issues at the heart of the parties’ dispute. See 2121 East 30th St., 73 F.3d at 1059.
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.”3 See Fed. R. Civ. P.
72(b), Advisory Committee Notes. Accordingly, it is
ORDERED that the Recommendation of United States Magistrate Judge [Docket
No. 197] is ACCEPTED. It is further
ORDERED that the Claims of Exemption [Docket Nos. 179-82, 185, 190-93,
195-96, 198-206, and 211-12] filed by defendant John Henry are DENIED. It is further
ORDERED that the stay imposed pursuant to Colo. Rev. Stat. § 13-55-103
[Docket No. 184] is lifted. The United States Marshal for the District of Colorado is
directed to undertake all necessary proceedings to sell the property subject to
execution.

DATED December 12, 2013.
BY THE COURT:

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

3

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