Sliwinski v. Aetna Life Insurance Company

Filing 27

RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE re 10 Partial MOTION to Dismiss filed by Aetna Life Insurance Company by Magistrate Judge Michael E. Hegarty on 10/16/2017. It is the recommendation of the Court that the 10 Partial Motion to Dismiss the Complaint be GRANTED. (mdave, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 17-cv-01528-RM-MEH
SHANNON SLIWINSKI,
Plaintiff,
v.
AETNA LIFE INSURANCE COMPANY,
Defendant.
______________________________________________________________________________
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
______________________________________________________________________________
Michael E. Hegarty, United States Magistrate Judge.
This action arises under the Employee Retirement Income Security Act of 1974, as
amended (AERISA@), and asserts claims for benefits due under 29 U.S.C. ' 1132(a)(1)(B) and for
breach of fiduciary duty under 29 U.S.C. ' 1104(a)(1).

Defendant Aetna Life Insurance

Company (AAetna@ or ADefendant@) has filed a Partial Motion to Dismiss the second claim for
relief. The Court finds that Plaintiff=s second claim is impermissibly duplicative of the first and,
thus, respectfully recommends that the Partial Motion to Dismiss be granted.
BACKGROUND
Plaintiff Shannon Sliwinski (ASliwinski@ or APlaintiff@) initiated this action on June 23,
2017. Compl., ECF No. 1.
I.

Facts
The following are factual allegations made by Sliwinski in the Complaint, which are

taken as true for analysis under Fed. R. Civ. P. 12(b)(6) pursuant to Ashcroft v. Iqbal, 556 U.S.

662, 678 (2009).
Sliwinski began working for the company Zogenix as a Specialty Account Manager in
2014. Compl. & 9, ECF No. 1. As a part of her employment, Sliwinski was covered by a Long
Term Disability Plan (the APlan@), which is an Aemployee benefit plan@ as defined by 29 U.S.C. '
1002(3). Id. && 8, 12. Aetna is the insurer and underwriter of the Plan and pays the benefits
for all approved claims. Id. & 17.
Sliwinski worked for Zogenix until April 2015, when physical disabilities rendered her
unable to perform the duties of the job.

Id. & 10.

Sliwinski then applied for long term

disability under the Plan. Id. & 30. On October 22, 2015, Aetna approved the claim and
began paying long-term disability benefits. Id. && 30B32. In January 2016, Plaintiff attempted
to return to work on a part-time basis. After only a few days, she found she was unable to
perform her duties and ceased working entirely on January 20, 2016. Id. & 11.
Aetna terminated Sliwinski=s benefits on March 25, 2016 reasoning that she had returned
to work. Id. & 32. Sliwinski informed Aetna that while she had attempted to return to work,
her attempt lasted only a few days. Id. Sliwinski appealed the termination pursuant to the
policy, but Aetna denied the appeal. Id. && 34B40. Sliwinski then asked Aetna to allow
another appeal and submitted records as evidence of her disability, but Aetna informed her that it
would not grant the request and considered the decision final. Id. && 43B49.
II.

Procedural History
This suit followed.

As set forth above, Sliwinski=s second claim alleges breach of

fiduciary duty under 29 U.S.C. ' 1104(a)(1) and seeks enforcement through 29 U.S.C. '
1132(a)(3), which permits a civil action by a participant Ato obtain other appropriate equitable
2

relief.@ Under this claim, Sliwinski seeks Aequitable relief for the separate and distinct harms
she suffered from Aetna=s breaches of its fiduciary duty.@ Compl. & 91, ECF No. 1. Sliwinski
argues Ait would be unjust for Aetna to retain the profits it received at Sliwinski=s expense
without commensurate compensation to her.@ Id. & 90. Among the remedies Sliwinski seeks
as equitable relief are surcharge, disgorgement, an accounting of profits generated as a result of
the withheld benefits, unjust enrichment, injunctive relief, and restitution. Id. && 92B97.
Defendant=s motion asks the Court to dismiss the second claim as duplicative of the first
claim. Defendant argues that when a plaintiff can recover under ' 1132(a)(1)(B), she cannot
obtain additional relief under ' 1132(a)(3). Plaintiff counters that Supreme Court precedent, in
fact, permits her to seek relief under both causes of action. Alternatively, she argues that the
second claim should not be dismissed because the Federal Rules of Civil Procedure permit her to
plead in the alternative.
LEGAL STANDARDS
ATo survive a motion to dismiss, a complaint must contain sufficient factual matter,
accepted as true, to >state a claim to relief that is plausible on its face.=@ Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
Plausibility, in the context of a motion to dismiss, means that the plaintiff pled facts which allow
Athe court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.@

Id.

Twombly requires a two-prong analysis.

First, a court must identify Athe

allegations in the complaint that are not entitled to the assumption of truth,@ that is, those
allegations which are legal conclusions, bare assertions, or merely conclusory. Id. at 678B80.
Second, the Court must consider the factual allegations Ato determine if they plausibly suggest an
3

entitlement to relief.@ Id. at 681. If the allegations state a plausible claim for relief, such claim
survives the motion to dismiss. Id. at 680.
Plausibility refers Ato the scope of the allegations in a complaint: if they are so general
that they encompass a wide swath of conduct, much of it innocent, then the plaintiffs >have not
nudged their claims across the line from conceivable to plausible.=@ Khalik v. United Air Lines,
671 F.3d 1188, 1191 (10th Cir. 2012) (quoting Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th
Cir. 2008)). AThe nature and specificity of the allegations required to state a plausible claim will
vary based on context.@ Kan. Penn Gaming, LLC v. Collins, 656 F.3d 1210, 1215 (10th Cir.
2011). Thus, while the Rule 12(b)(6) standard does not require that a plaintiff establish a prima
facie case in a complaint, the elements of each alleged cause of action may help to determine
whether the plaintiff has set forth a plausible claim. Khalik, 671 F.3d at 1191.
However, A[t]hreadbare recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.@ Iqbal, 556 U.S. at 678. The complaint must provide
Amore than labels and conclusions@ or merely Aa formulaic recitation of the elements of a cause of
action,@ so that Acourts >are not bound to accept as true a legal conclusion couched as a factual
allegation.=@ Twombly, 550 U.S. at 555 (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986)).
ADetermining whether a complaint states a plausible claim for relief will . . . be a context-specific
task that requires the reviewing court to draw on its judicial experience and common sense.@
Iqbal, 556 U.S. at 679.

A[W]here the well-pleaded facts do not permit the court to infer more

than the mere possibility of misconduct,@ the complaint has made an allegation, Abut it has not
shown that the pleader is entitled to relief.@ Id. (quotation marks and citation omitted).

4

ANALYSIS
Collectively, the two causes of action at issue in this case provide:
(a) Persons empowered to bring a civil action
A civil action may be brought-(1) by a participant or beneficiaryB
...
(B) to recover benefits due to him under the terms of his plan, to enforce
his rights under the terms of the plan, or to clarify his rights to future
benefits under the terms of the plan;
...
(3) by a participant, beneficiary, or fiduciary (A) to enjoin any act or practice
which violates any provision of this subchapter or the terms of the plan, or (B) to
obtain other appropriate equitable relief (i) to redress such violations or (ii) to
enforce any provisions of this subchapter or the terms of the plan . . . .
29 U.S.C. ' 1132(a).
In Varity Corp. v. Howe, 516 U.S. 489, 512 (1996), the Supreme Court defined the roles
and limits of these two causes of action in providing relief to an ERISA plaintiff. The Court
stated that ' 1132(a)(1)(B) Aspecifically provides a remedy for breaches of fiduciary duty with
respect to the interpretation of plan documents and the payment of claims . . . .@ On the other
hand, ' 1132(a)(3) acts as a Acatchall@ provision or Asafety net, offering appropriate equitable
relief for injuries caused by violations that ' [1132] does not elsewhere adequately remedy.@ Id.
However, the Court cautioned, Awhere Congress elsewhere provided adequate relief for a
beneficiary=s injury, there will likely be no need for further equitable relief, in which case such
relief normally would not be >appropriate.=@

Id. at 515.

The Tenth Circuit has expressly

reiterated this restriction on equitable relief: A[A] claim under 29 U.S.C. ['] 1132(a)(3) is
5

improper when the [plaintiff] . . . states a cognizable claim under 29 U.S.C. ' 1132(a)(1)(B), a
provision which provides adequate relief for [the] alleged@ injury. Lefler v. United Healthcare
of Utah, Inc., 72 F. App=x 818, 827 (10th Cir. 2003).
On its face, Sliwinski=s second claim for breach of fiduciary duty should be dismissed as
duplicative pursuant to Varity and Lefler. However, she argues dismissal is inappropriate for
two reasons. First, she asserts the Supreme Court decision of CIGNA Corp. v. Amara, 563 U.S.
421 (2011) fundamentally changed the restrictions on equitable relief Varity imposed. Pl.=s
Resp. 6B8, ECF No. 16. Second, she argues dismissal would be premature because the Federal
Rules of Civil Procedure permit pleading in the alternative. Id. at 12B13.
I.

Amara and Its Effect on Varity
In Amara, the Supreme Court addressed a claim by a pension class against a plan

administrator-employer where the class alleged the administrator failed to provide proper notice
of changes to the pension plan. 563 U.S. at 424. The employer changed the retirement plan it
offered its employees from a plan that provided an employee an annuity upon his or her
retirement to a plan that gave the employee a Alump sum@ retirement account, and the employee
could invest the sum as he or she wished. Id. at 426B27. The district court found that the
employer=s representations about the changes in the plan Awere significantly incomplete and
misled its employees.@ Id. at 428. As a remedy for the violations, the district court reformed
the plan to compensate the injured employees.

Id. at 433B34.

The district court used

' 1132(a)(1)(B) as the legal authority for that remedy. Id. at 434.
The Supreme Court reversed as to the source of the legal authority for reforming the plan.
The Court ruled that ' 1132(a)(1)(B), which Aspeaks of >enforc[ing]= the >terms of the plan,= not
6

of changing them,@ does not permit a court to alter the terms of an ERISA plan. Id. at 436.
Altering the plan, the Court noted, Aseems less like the simple enforcement of a contract as
written and more like an equitable remedy.@ Id. Instead, the Court stated that the remedies the
district court ordered were Awithin the scope of the term >appropriate equitable relief= in '
[1132](a)(3).@ Id. at 442.
Importantly, with respect to the present motion, the plaintiffs in Amara did not have a
cognizable claim under ' 1132(a)(1)(B).

Id. at 438.

Thus, Amara does not stand for the

proposition that the case Aclarifies that plan beneficiaries may simultaneously assert claims under
' [1132](a)(1)(B) for denial of benefits and under ' [1132](a)(3) to recover further equitable
relief for breaches of fiduciary duties,@ as Plaintiff argues. Pl.=s Resp. 7.
The cases to which Sliwinski cites similarly do not support the proposition that
simultaneous claims may be brought under ' 1132(a)(1)(B) and ' 1132(a)(3). Instead, each
stays faithful to Varity. Plaintiff cites to Silva v. Metropolitan Life Insurance Co., 762 F.3d 711
(8th Cir. 2014), in which an employee-beneficiary died at an early age and his father sought to
recover on his employer-provided life insurance policy. Id. at 713. Initially, the employee had
declined the life insurance coverage, but, several years later, reconsidered and decided to enroll
in the plan. Id. at 713B14. Because he was enrolling at this later date, the policy required him
to provide Aevidence of insurability@ which was satisfied, at least in part, by completing a
AStatement of Health@ form. Id. at 714B15. When the father tried to collect the benefits, the
insurer denied the claim, because the employee had failed to satisfy the Aevidence of insurability@
requirement. Id. at 714. However, during the dispute, the parties were uncertain whether the
employee was ever notified of the Aevidence of insurability@ requirement, and the policy did not
7

define the term. Id. at 715B16. Further, two hundred other employees had not submitted a
AStatement of Health@ form, or at least, the insurer was unable to produce them. Id. at 715. The
Eighth Circuit permitted the father to seek enforcement of the plan under ' 1132(a)(1)(B) and to
pursue other equitable remedies under ' 1132(a)(3). Id. at 719B24. As its reasoning, the court
stated:
We do not read Varity . . . to stand for the proposition that [a plaintiff] may only
plead one cause of action to seek recovery [for an ERISA violation]. Rather, we
conclude those cases prohibit duplicate recoveries when a more specific section of
the statute, such as ' 1132(a)(1)(B), provides a remedy similar to what the
plaintiff seeks under the equitable catchall provision, ' 1132(a)(3).
Id. at 726.

The court noted the father Apresent[ed] two alternativeCas opposed to

duplicativeCtheories of liability . . . .@ Id. The court reasoned that both claims were proper at
the pleading stage, because
[u]nder ' 1132(a)(1)(B), [the plaintiff] is arguing that the insurance policy was
valid and that [the employee=s] failure to provide evidence of insurability does not
alter the validity of the policy. In the alternative, under ' 1132(a)(3), [the
plaintiff] is arguing that if [the employee=s] policy was never validly approved and
therefore did not go into effect due to the missing Statement of Health form, [the
insurers] are still liable to him due to fiduciary misconduct. These arguments
assert different theories of liability.
Id. at 727B28.

Thus Silva permits alternative pleading while still adhering to Varity=s

prohibition on duplicative recovery. It does not support Plaintiff=s interpretation of Amara.
Plaintiff also cites to Moyle v. Liberty Mutual Retirement Benefit Plan, 823 F.3d 948 (9th
Cir. 2016). There, Liberty Mutual bid to acquire (and ultimately succeeded in acquiring) an
insolvent company and, as part of its bid, made representations to the company=s employees that
8

their time employed for the insolvent company would credit toward Liberty Mutual=s retirement
benefits plan.

Id. at 952B55.

Later, when Liberty Mutual denied certain applications for

retirement benefits by the defunct company=s employees, the affected employees filed suit and
brought claims for relief under both ' 1132(a)(1)(B) and ' 1132(a)(3). Id. at 955B56. The
Ninth Circuit allowed both claims to continue also reasoning that proceeding under both claims
did not violate Varity=s prohibition on double recoveries.

AHere, [the plaintiffs] seek the

payment of benefits under ' 1132(a)(1)(B), but if that fails, [the plaintiffs] seek an equitable
remedy for the breach of fiduciary duty to disclose under ' 1132(a)(3).@ Id. at 962 (emphasis
added).

Thus, should the Moyle plaintiffs succeed under their ' 1132(a)(1)(B) claim, no

equitable remedy would be appropriate under ' 1132(a)(3). Moyle does not permit a plaintiff to
recover under both statutes.
Plaintiff additionally cites to McCravy v. Metropolitan Life Insurance Co., 690 F.3d 176
(4th Cir. 2012) and Gearlds v. Entergy Services, Inc., 709 F.3d 448 (5th Cir. 2013). These cases
similarly illustrate that ' 1132(a)(3) permits a court to award a plaintiff equitable remedies for
breach of fiduciary duties. However, neither supports the proposition that a plaintiff is entitled
to additional recovery under ' 1132(a)(3) when ' 1132(a)(1)(B) adequately remedies a plaintiff=s
claim.
In McCravy, an ERISA plaintiff sought to recover benefits for the death of her dependent
daughter whom the plaintiff insured under her life and accidental death insurance. 690 F.3d at
177B178. However, after the daughter=s untimely death, the insurer discovered the daughter was
age 25, and the policy only permitted coverage of dependant children until a maximum of age 24.
Id. at 178. When the plaintiff sought to collect under the policy, the insurer attempted to return
9

the premiums it had continued to accept even after the daughter became ineligible for coverage
and, otherwise, denied the claim. Id. The plaintiff brought suit seeking equitable remedies
under ' 1132(a)(3).

The Fourth Circuit recounted Amara stating the case Astands for the

proposition that remedies traditionally available in courts of equity, expressly including estoppel
and surcharge, are indeed available to plaintiffs suing fiduciaries under Section 1132(a)(3).@ Id.
at 181.

Importantly, the McCravy plaintiff did not have a cognizable claim under

' 1132(a)(1)(B). The parties agreed the daughter was not covered under the life insurance
policy.

Id. at 178.

Therefore, the plaintiff could not receive an adequate recovery under

' 1132(a)(1)(B). While McCravy states that equitable remedies providing a monetary award are
available under ' 1132(a)(3), it does not state that a plaintiff may simultaneously recover under
' 1132(a)(1)(B) and ' 1132(a)(3) for the same injury.
Gearlds is consistent with this proposition. There, an ERISA plaintiff had agreed to take
early retirement based on the employer=s representations that his retirement plan would entitle
him to medical benefits. Gearlds, 709 F.3d at 449. Years later, when the employer informed
him that it was discontinuing his medical benefits because it had miscalculated the plaintiff=s
years earned towards coverage, the employee brought an action under ' 1132(a)(3) seeking
various equitable remedies. Id. at 449B50. Like the Fourth Circuit in McGravy, the Fifth
Circuit here recognized that Amara stated A>an award of make whole relief= . . . [i]s within the
scope of >appropriate equitable relief= for purposes of ' [1132](a)(3).@ Id. at 451. However,
also like the plaintiff in McCravy, the plaintiff in Gearlds had no cognizable claim under
' 1132(a)(1)(B).

It was not necessary for the court to address whether a plaintiff may

simultaneously recover under ' 1132(a)(1)(B) and ' 1132(a)(3) because he had no cognizable
10

claim under ' 1132(a)(1)(B).
In contrast to these cases, in Rochow v. Life Insurance Co. of North America, 780 F.3d
364 (6th Cir.), cert denied, 163 S. Ct. 480 (2015), the Sixth Circuit addressed a suit where a
plaintiff sought enforcement of a benefits plan under ' 1132(a)(1)(B) and additional monetary
awards as an equitable remedy under ' 1132(a)(3). There, the district court granted summary
judgment to the plaintiff on the ' 1132(a)(1)(B) claim for wrongful denial of benefits. Id. at
367.

After that decision was affirmed on appeal, the district court granted the plaintiff a

substantial monetary award as an Aequitable accounting of profits and disgorgement of the same.@
Id. at 368. An en banc rehearing of the Sixth Circuit overturned the award of equitable
damages under ' 1132(a)(3). Id. at 366. The Sixth Circuit identified the single issue before it:
AIs [a plaintiff] entitled to recover under both . . . ' [1132](a)(1)(B) and ' [1132](a)(3) for [an
ERISA provider=s] arbitrary and capricious denial of long-term disability benefits?@ Id. at 370.
The court recognized that, in Varity, the Supreme Court explained that A' [1132](a)(3) >functions
as a safety net, offering appropriate equitable relief for injuries caused by violations that ' [1132]
does not elsewhere adequately remedy.=@

Id. at 371 (quoting Varity, 516 U.S. at 513).

However, the court also recognized that Varity states Awhere Congress elsewhere provided
adequate relief for a beneficiary=s injury, there will likely be no need for further equitable relief,
in which case such relief normally would not be appropriate.@ Id. (quoting Varity, 516 U.S. at
515).

AIn other words, a claimant cannot pursue a breach-of-fiduciary-duty claim under '

[1132](a)(3) based solely on an arbitrary and capricious denial of benefits where the '
[1132](a)(1)(B) remedy is adequate to make the claimant whole.@ Id. Of additional concern to
the court, A[i]f an arbitrary and capricious denial of benefits implicated a breach of fiduciary duty
11

entitling the claimant to disgorgement of the defendant=s profits in addition to recovery of
benefits, then equitable relief would be potentially available whenever a benefits denial is held to
be arbitrary or capricious.@ Id. at 372. A plaintiff Acan pursue a breach-of-fiduciary-duty claim
under ' [1132](a)(3) . . . only where the breach of fiduciary duty claim is based on an injury
separate and distinct from the denial of benefits or where the remedy afforded by Congress under
' [1132](a)(1)(B) is otherwise shown to be inadequate.@ Id.
Here, Aetna concedes that Sliwinski states a cognizable claim for enforcement of benefits
due under ' 1132(a)(1)(B). Def.=s Mot. 13, ECF No. 10. An examination of the complaint
reveals that the only injury Sliwinski alleges is a wrongful denial of benefits. Sliwinski states
that but for Aetna=s alleged breach of fiduciary duties, Sliwinski would not have Asuffered other
economic harms@ such as relying on Adwindling . . . savings accounts@ and Aincreased reliance on
credit cards.@ Pl.=s Resp. 7, ECF No. 16. Thus she is not alleging an injury separate and
distinct from the denial of benefits. See Rochow, 780 F.3d at 372. Plaintiff=s alleged injuries
arose because of the denial. Plaintiff argues Ait would be unjust for Aetna to retain the profits it
received at Sliwinski=s expense without commensurate compensation to her.@ Compl. & 90,
ECF No. 1. However, AERISA remedies are concerned with the adequacy of relief to redress the
claimant=s injury, not the nature of the defendant=s wrongdoing.@ Rochow, 780 F.3d at 371.
This is a case Awhere Congress [has] elsewhere provided adequate relief for [the] beneficiary=s
injury . . . .@ Varity, 516 U.S. at 515. Thus further equitable relief Awould not be >appropriate.=@
Id.
II.

Alternative Pleading
Sliwinski argues that dismissal is not appropriate because she is allowed to plead in the
12

alternative. Pl.=s Resp. 12, ECF No. 16. The Tenth Circuit has stated that Aconsideration of a
claim under 29 U.S.C. ['] 1132(a)(3) is improper when [a plaintiff] . . . states a cognizable claim
under 29 U.S.C. ' 1132(a)(1)(B) . . . .@

Lefler, 72 F. App=x at 827.

While a plaintiff is

permitted to plead in the alternative, such pleading is only appropriate under ' 1132(a)(3) when
the plaintiff pleads Aalternative@ theories of recovery. Holbrooks v. Sun Life Assurance Co. of
Can., No. 11-1383-JTM, 2012 WL 2449850, at *1 (D. Kan. June 26, 2012); Fulghum v. Embarq
Corp., No. 07-2602-KHV, 2008 WL 5109781, at *10 n.15 (D. Kan. Dec. 2, 2008) (permitting a
claim under ' 1132(a)(3) where it sought Aalternative equitable relief . . . if it turns out [the
plaintiffs] do not have a vested right to benefits@); Circle v. W. Conference of Teamsters Pension
Tr., No. 3:17-cv-00313-YY, 2017 WL 4102490, at *3 (D. Ore. Aug. 31, 2017) (A[A]lternative
pleading is only permissible where the relief sought under each alternative claim is distinct.@);
Englert v. Prudential Ins. Co. of Am., 186 F. Supp. 3d 1044, 1047 (N.D. Cal. 2016) (stating a
claim under ' 1132(a)(3) is cognizable when it seeks relief distinct from a ' 1132(a)(1)(B)
claim).

Section 1132(a)(3) Ais construed to prevent >plaintiffs [from] repackaging their

failure-to-pay claims, i.e. their claims under [' 1132](a)(1)(B), as claims for breach of fiduciary
duty.=@ Holbrooks, 2012 WL 2449850, at *1 (emphasis omitted) (quoting Fulghum, 2008 WL
5109781, at *10).
Sliwinski=s complaint makes clear that the only damages she has incurred are a result of
the alleged wrongful denial of benefits.

If that wrongful denial claim fails, she has no

alternative grounds for recovery. Thus, the relief she seeks under both claims is identical.
Here, her second claim represents Athe sort of repackaging disfavored in Lefler . . . .@
Holbrooks, 2012 WL 2449850, at *2. Dismissal of Sliwinski=s second claim is appropriate
13

because it does not seek relief distinct from her first claim. 1
0F

CONCLUSION
Here, Aetna has demonstrated that Sliwinski=s second claim for relief is duplicative of the
first. Accordingly, the Court respectfully RECOMMENDS that Defendant=s Partial Motion to
Dismiss [filed July 17, 2017; ECF No. 10] the Complaint be GRANTED. 2
1F

Respectfully submitted this 16th day of October, 2017, at Denver, Colorado.
BY THE COURT:

Michael E. Hegarty
United States Magistrate Judge

1

Plaintiff=s response brief asks the Court for leave to amend the complaint should the
Court grant Defendant=s motion to dismiss her second claim. Pl.=s Resp. 5. The District of
Colorado=s Local Rules do not permit such a request in a response brief. D.C. Colo. LCivR
7.1(d) (AA motion shall not be included in a response or reply to the original motion. A motion
shall be filed as a separate document.@).
2

Be advised that all parties shall have fourteen (14) days after service hereof to serve and
file any written objections in order to obtain reconsideration by the District Judge to whom this
case is assigned. Fed. R. Civ. P. 72. The party filing objections must specifically identify
those findings or recommendations to which the objections are being made. The District Court
need not consider frivolous, conclusive or general objections. A party’s failure to file such
written objections to proposed findings and recommendations contained in this report may bar
the party from a de novo determination by the District Judge of the proposed findings and
recommendations. United States v. Raddatz, 447 U.S. 667, 676–83 (1980); 28 U.S.C. §
636(b)(1). Additionally, the failure to file written objections to the proposed findings and
recommendations within fourteen (14) days after being served with a copy may bar the aggrieved
party from appealing the factual and legal findings of the Magistrate Judge that are accepted or
adopted by the District Court. Duffield v. Jackson, 545 F.3d 1234, 1237 (10th Cir. 2008)
(quoting Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991)).
14