Nyborg et al v. State Farm Mutual Automobile Insurance Company

Filing 132

RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE by Magistrate Judge Kristen L. Mix on 07/29/2022. IT IS HEREBY RECOMMENDED that the Motion 109 be GRANTED in part and DENIED in part. Specifically, it is recommended that the Motion 109 be grante d such that Plaintiff Szelkowski's second and third claims for relief be DISMISSED in part without prejudice to the extent that those two claims are premised on allegations regarding Defendant's alleged failure to investigate whether Plaintiffs lived together and Defendants alleged misrepresentation to Plaintiff Szelkowski. It is further recommended that the Motion 109 otherwise be DENIED. (alave, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 20-cv-01918-RM-KLM
JANICE NYBORG, and
CLOTILDE SZELKOWSKI,
Plaintiffs,
v.
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY,
Defendant.
_____________________________________________________________________
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
_____________________________________________________________________
ENTERED BY MAGISTRATE JUDGE KRISTEN L. MIX
This matter is before the Court on Defendant’s Partial Motion to Dismiss
Plaintiffs’ Complaint [#109] (the “Motion”).

Plaintiffs filed a Response [#127] in

opposition to the Motion [#109], and Defendant filed a Reply [#129]. The Motion [#109]
has been referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1) and
D.C.COLO.LCivR 72.1. See [#113]. The Court has reviewed the Motion, the Response,
the Reply, the entire case file, and the applicable law, and is sufficiently advised in the
premises. For the reasons set forth below, the Court respectfully RECOMMENDS that
the Motion [#109] be GRANTED in part and DENIED in part.
I. Background1

For purposes of resolving the Motion [#109], the Court accepts as true all well-pled, as opposed
to conclusory, allegations made in Plaintiffs’ Second Amended Complaint [#121]. See Shero v.
City of Grove, 510 F.3d 1196, 1200 (10th Cir. 2007). The Court notes that the Motion [#109]
refers to the Second Amended Complaint as being docketed at [#101]. Motion [#109] at 1. Docket
No. 101 shows the red-line changes made between the Amended Complaint and the Second
Amended Complaint, and therefore is materially the same as the “clean,” non-red-lined version of
the Second Amended Complaint located at Docket No. 121.
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This case arises from an automobile accident in which Plaintiff Janice Nyborg
(“Nyborg”) and Plaintiff Clotilde Szelkowski (“Szelkowski”) were injured. Second Am.
Compl. [#121] ¶¶ 5, 7. Plaintiffs are individuals and residents of Colorado. Id. ¶ 1.
Defendant is a foreign corporation that issues automobile insurance policies in Colorado.
See id. ¶¶ 12, 63; Notice of Removal [#1].
On December 15, 2019, a vehicle driven by Michael Gomez-Quintana (“GomezQuintana”) rear-ended a vehicle in which Plaintiffs were traveling, injuring them both.
Second Am. Compl. [#121] ¶¶ 5, 7. Mr. Gomez-Quintana was uninsured with respect to
Plaintiffs’ damages, but Plaintiffs were both insured for uninsured motorist (“UM”) benefits
under an automobile insurance policy with Defendant, with coverage limits of $50,000 per
person and $100,000 per incident. Id. ¶¶ 9, 12. Plaintiffs timely notified Defendant of
their UM claims and asked Defendant to pay them benefits owed under the terms of the
policy. Id. ¶ 13.
Plaintiffs assert that Defendant unreasonably misrepresented the amount of UM
coverage available for the accident. Id. ¶¶ 26-31. Plaintiffs further assert that Defendant
unreasonably failed to investigate whether Plaintiffs lived together at the time of the
accident, despite Defendant possessing a police report indicating that Plaintiffs lived
together. Id. ¶¶ 22-25.
Plaintiffs bring three claims against Defendant: (1) breach of contract; (2) statutory
bad faith pursuant to Colo. Rev. Stat. § 10-3-1116; and (3) common law bad faith. Id. ¶¶
62-77. Plaintiffs seek general damages; economic damages; statutory and necessary
costs to include expert witness expenses, investigation expenses, discovery expenses,
and attorneys’ fees; and post-judgment interest. Id. at 11. In the present Motion [#109],

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Defendant seeks dismissal of the second and third claims as they relate to Plaintiff
Szelkowski. Motion [#109] at 1.
II. Standard of Review
The purpose of a motion to dismiss pursuant to Rule 12(b)(6) is to test “the
sufficiency of the allegations within the four corners of the complaint after taking those
allegations as true.” Mobley v. McCormick, 40 F.3d 337, 340 (10th Cir. 1994); Fed. R.
Civ. P. 12(b)(6) (stating that a complaint may be dismissed for “failure to state a claim
upon which relief can be granted. . . .”). “The court’s function on a Rule 12(b)(6) motion
is not to weigh potential evidence that the parties might present at trial, but to assess
whether the plaintiff’s complaint alone is legally sufficient to state a claim for which relief
may be granted.” Sutton v. Utah State Sch. for the Deaf & Blind, 173 F.3d 1226, 1236
(10th Cir. 1999) (citation omitted). To withstand a motion to dismiss pursuant to Rule
12(b)(6), “a complaint must contain enough allegations of fact to state a claim for relief
that is plausible on its face.” Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008)
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)); see also Shero v. City of
Grove, Okla., 510 F.3d 1196, 1200 (10th Cir. 2007) (“The complaint must plead sufficient
facts, taken as true, to provide ‘plausible grounds’ that discovery will reveal evidence to
support the plaintiff’s allegations.” (quoting Twombly, 550 U.S. at 570)).
“A claim has facial plausibility when the plaintiff pleads factual content that allows
the court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “A pleading that offers labels and
conclusions or a formulaic recitation of the elements of a cause of action will not do. Nor

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does a complaint suffice if it tenders naked assertion[s] devoid of further factual
enhancement.” Id. (brackets in original; internal quotation marks omitted).
“The plausibility standard is not akin to a ‘probability requirement,’ but it asks for
more than a sheer possibility that [a] defendant has acted unlawfully.”

Id. (citation

omitted). To survive a motion to dismiss pursuant to Rule 12(b)(6), the factual allegations
in the complaint “must be enough to raise a right to relief above the speculative level.”
Christy Sports, LLC v. Deer Valley Resort Co., 555 F.3d 1188, 1191 (10th Cir. 2009).
“[T]he mere metaphysical possibility that some plaintiff could prove some set of facts in
support of the pleaded claims is insufficient; the complaint must give the court reason to
believe that this plaintiff has a reasonable likelihood of mustering factual support for these
claims.” Ridge at Red Hawk, LLC v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007).
“[W]here the well-pleaded facts do not permit the court to infer more than the mere
possibility of misconduct,” a factual allegation has been stated, “but it has not show[n] . .
. that the pleader is entitled to relief,” as required by Fed. R. Civ. P. 8(a). Iqbal, 556 U.S.
at 679 (citation and internal quotation marks omitted).
III. Analysis2
At the outset, the Court clarifies which allegations in the Second Amended
Complaint [#121] are challenged by the Motion [#109]. Defendant asserts that of the
thirteen new allegations included in the Second Amended Complaint [#121], only six
relate to Plaintiff Szelkowski’s claims. Motion [#109] at 2. The Court agrees that many

The Court has jurisdiction over this case pursuant to 28 U.S.C. § 1332(a), because the parties
reside in different states and diversity exists. See Notice of Removal [#1]. Because the Court’s
jurisdiction on all claims addressed by the Motion [#109] is based on diversity jurisdiction pursuant
to 28 U.S.C. § 1332(a), the Court “must apply [Colorado] substantive law and federal procedural
law.” Racher v. Westlake Nursing Home Ltd. P’ship, 871 F.3d 1152, 1162 (10th Cir. 2017) (citing
Gasperini v. Ctr. for Humans., Inc., 518 U.S. 415, 428 (1996)).
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of the new allegations do not relate to Plaintiff Szelkowski, but identifies seven new
allegations that do relate to her. See Second Am. Compl. [#121] ¶¶ 22-25, 27, 29, 31.3
Six of the thirteen new allegations are expressly limited to Plaintiff Nyborg, and
therefore cannot serve as bases for any of Plaintiff Szelkowski’s claims. See Second Am.
Compl. [#121] ¶¶ 19-21, 26, 28, 30. The seven new allegations which pertain to Plaintiff
Szelkowski relate in part to Defendant’s alleged failure to investigate whether Plaintiffs
lived together at the time of the accident, id. ¶¶ 22-25, and in part to Defendant’s alleged
misrepresentation made to Plaintiff Szelkowski, id. ¶¶ 27, 29, 31. Plaintiffs do not dispute
that these seven allegations are the only new allegations which relate to Plaintiff
Szelkowski, and in fact, limit their arguments in the Response [#127] to these seven
allegations. Therefore, the Court finds that these seven allegations are the only new
allegations in the Second Amended Complaint [#121] that relate to Plaintiff Szelkowski’s
claims.
Defendant argues that because these new allegations “are insufficient as a matter
of law to support Plaintiff Szelkowski’s extra-contractual claims[,]” and because “[t]he
Court has already found that every other allegation in the [Second Amended] Complaint
[#121] fails to state claims for common law bad faith and statutory unreasonable delay
and denial with respect to Plaintiff Szelkowski[,]” Plaintiff Szelkowski’s extracontractual
claims “must be dismissed.” Motion [#109] at 2, 4, 9 (citing Recommendation [#38]; Order
[#45]). The Court notes that no previous order or recommendation in this case found that
“none of the other allegations in the Second Amended Complaint are sufficient to support

The Court notes that while Defendant asserts that only “six” of the new allegations relate to
Plaintiff Szelkowski, Motion [#109] at 2, Defendant elsewhere cites all seven allegations identified
by the Court as relating to Plaintiff Szelkowski, id. at 5-6, 8.
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Plaintiff Szelkowski’s extra-contractual claims.” See generally Recommendation [#38];
Order [#45].
In the Recommendation [#38], which was accepted by the District Judge, Order
[#45] at 1, the Court found the following allegations to be insufficient bases for Plaintiff
Szelkowski’s extracontractual claims: (1) allegations regarding the payment of settlement
offers; (2) allegations regarding Defendant’s failure to consult medical professionals; (3)
allegations regarding Defendant’s failure to document or investigate any failure by
Plaintiffs to cooperate; and (4) allegations regarding Defendant’s failure to send a
reservation of rights letter, Recommendation [#38] at 16-17. The Recommendation [#38]
did not address several other allegations relating to Plaintiff Szelkowski, the ones about
which the parties had not argued in the underlying Motion to Dismiss, and which remain
unchanged in the Second Amended Complaint [#121]. Compare Am. Compl. [#14] ¶¶
33, 36-38, 43-44, 48 with Second Am. Compl. [#121] ¶¶ 46, 49-51, 56-57, 61. Therefore,
contrary to Defendant’s assertion, the Court did not find those allegations to be insufficient
bases for Plaintiff Szelkowski’s extracontractual claims. See generally Recommendation
[#38]; Order [#45].
Defendant does not address these surviving allegations in the Motion [#109], and
therefore the Court considers the Motion [#109] only as it relates to the seven new
allegations identified above. See generally Motion [#109]. The surviving allegations may
sufficiently support Plaintiff Szelkowski’s extracontractual claims, about which the Court
makes no finding at this time given the lack of argument about them by Defendant. Thus,
the Court finds that it is inappropriate to dismiss Plaintiff Szelkowski’s second and third
claims in full, as requested by Defendant. Motion [#109] at 10.

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Accordingly, the Court recommends that the Motion [#109] be denied to the
extent that Defendant seeks dismissal of Plaintiff Szelkowki’s second and third claims in
full, and turns to the legal sufficiency of the seven new allegations that relate to Plaintiff
Szelkowski.
A.

Legal Standard
Plaintiff Szelkowski brings both statutory and common law bad faith claims.

Second Am. Compl. [#121] ¶¶ 67-77. A statutory bad faith claim requires a plaintiff to
show that: (1) insurance benefits were owed; and (2) the insurer unreasonably delayed
or denied payment of a claim made by a first-party claimant. See Colo. Rev. Stat. § 103-1115(1)(a). In Colorado, a common law bad faith claim requires a plaintiff to show that:
“(1) the insurer acted unreasonably under the circumstances[;] and (2) the insurer either
knowingly or recklessly disregarded the validity of the insured’s claim.” Sanderson v. Am.
Fam. Mut. Ins. Co., 251 P.3d 1213, 1217 (Colo. App. 2010) (citing Goodson v. Am.
Standard Ins. Co. of Wis., 89 P.3d 409, 414 (Colo. 2004)).
“[B]ad faith is not limited to the decision to grant or deny a claim; rather, bad faith
can occur in the unreasonable refusal to investigate a claim and to gather facts.”
Domokos v. Shelter Mut. Ins. Co., 416 F. Supp. 3d 1209, 1233 (D. Colo. 2019) (citing
Travelers Ins. Co. v. Savio, 706 P.2d 1258, 1274 n.20 (Colo. 1985)).

“The

reasonableness of the insurer’s conduct must be determined objectively, based on proof
of industry standards.” Goodson, 89 P.3d at 415 (citing Travelers Ins. Co., 706 P.2d at
1275).
Colorado state courts have stated that “an insurer may challenge claims which are
fairly debatable and will be found to have acted in bad faith only if it has intentionally

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denied (or failed to process or pay) a claim without a reasonable basis.” Brandon v.
Sterling Colo. Beef Co., 827 P.2d 559, 561 (Colo. App. 1991) (citation omitted). “Under
Colorado law, it is reasonable for an insurer to challenge claims that are ‘fairly debatable.’
An insurer is under no obligation to negotiate a settlement when there is a genuine
disagreement as to the amount of compensable damages payable under the terms of an
insurance policy.” Vaccaro v. Am. Fam. Ins. Grp., 275 P.3d 750, 759 (Colo. App. 2012)
(citations omitted). An insurance claim is not “fairly debatable” where “there is sufficient
evidence from which reasonable jurors could conclude that in the investigation,
evaluation, and processing of the claim, the insurer acted unreasonably and either knew
or was conscious of the fact that its conduct was unreasonable.” Sanderson, 251 P.3d
at 1219.
Applying this standard, the Court considers whether the seven new allegations—
concerning Defendant’s failure to investigate Plaintiffs’ living situation, and Defendant’s
misrepresentation of available coverage—in the Second Amended Complaint [#121]
sufficiently state statutory and common law bad faith claims.
B.

Failure to Investigate Whether Plaintiffs Lived Together
Colorado law imposes a duty on insurers to conduct “a reasonable investigation

based upon all available information” before refusing to pay a claim. Colo. Rev. Stat. §
10-3-1104(1)(h)(IV). An investigation is unreasonable where it fails to consider evidence
that may support an insured’s claim. See Vaccaro, 275 P.3d at 760 (“Particularly in light
of plaintiff’s theory that defendant requested—and then ignored—the [independent
medical examiner] report, a reasonable jury could have found that defendant refused to
consider evidence showing plaintiff was entitled to additional compensation.”); cf. Sims v.

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Great Am. Life Ins. Co., 469 F.3d 870, 891 (10th Cir. 2006) (“An investigation [is
unreasonable] if (1) the manner of investigation . . . suggests that material facts were
overlooked, or (2) the insurer intentionally disregarded undisputed facts supporting the
insured’s claim.” (citation omitted; applying Oklahoma law)).
Plaintiffs argue that Defendant’s failure to investigate whether Plaintiffs lived
together at the time of the accident was unreasonable because “Defendant knows, and
its adjuster acknowledged, that whether Plaintiffs lived together affects the coverage
available under the applicable insurance policies.” Response [#127] at 5. Defendant
asserts that “this allegation is found nowhere in the Second Amended Complaint [#121],”
and argues that without this allegation, the Second Amended Complaint [#121] has “no
other factual allegations” to provide the context needed to determine whether Defendant’s
investigation was reasonable. Motion [#109] at 6; Reply [#129] at 2. The Court agrees
with Defendant and finds Plaintiffs’ allegations regarding the alleged failure to investigate
whether Plaintiffs lived together to be conclusory for the following reasons.
Plaintiffs’ argument rests entirely on the deposition of Defendant’s adjuster, which
may have indicated the adjuster’s knowledge that Plaintiff Szelkowski’s coverage would
be affected by her living situation. See Response [#127] at 5-6. However, the Second
Amended Complaint [#121] makes no reference whatsoever to Defendant’s adjuster or
to Defendant’s knowledge that Plaintiffs’ living situation would affect available coverage.
Therefore, for the purpose of adjudicating the present Motion [#109], the Court cannot
consider the adjuster’s deposition. See Lee v. Denver Pub. Schs., 20-cv-1989-WJMMEH, 2021 WL 1172634, at *6 (D. Colo. Mar. 29, 2021) (citing Kearney v. Dimanna, 195
F. App’x 717, 721 n.2 (10th Cir. 2006) (stating that it is “well-established” that a district

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court is “limited to assessing the legal sufficiency of the allegations contained within the
four corners of the complaint” in deciding a motion to dismiss)); Alvarado v. KOB-TV,
L.L.C., 493 F.3d 1210, 1215 (10th Cir. 2007) (citation omitted) (stating that when
considering a motion to dismiss under Rule 12(b)(6), courts may refer to documents
outside of the complaint if they are referred to in the complaint). Therefore, the Court
considers Plaintiffs’ allegations only as they are stated in the Second Amended Complaint
[#121]:
Defendant failed to investigate that Plaintiffs lived together at the time of the
collision.
Defendant failed to investigate that Plaintiffs lived together at the time of the
collision, despite the fact that Defendant had in its possession at the time it
evaluated Plaintiffs’ respective claims the police report indicating that
Plaintiffs lived together.
Defendant’s failure to investigate whether Plaintiffs lived together at the time
of the crash was unreasonable.
Defendant’s failure to investigate whether Plaintiffs lived together at the time
of the collision was done knowingly of or with reckless disregard for the
unreasonableness of that failure.
Second Am. Compl. [#121] ¶¶ 22-25.
Without the context provided by the adjuster’s deposition, the sole remaining
factual allegation regarding Defendant’s knowledge of Plaintiffs’ living situation is that
Defendant possessed a “police report indicating that Plaintiffs lived together.” See id. As
Defendant points out, based on this allegation alone, Defendant would have no reason to
investigate Plaintiffs’ living situation because the police report stated that Plaintiffs lived
together at the time of the accident. Motion [#109] at 7. Therefore, the Court cannot find
that Plaintiffs sufficiently plead bad faith claims based on Defendant’s failure to investigate
whether Plaintiffs lived together at the time of the accident.

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The Court notes that Defendant alternatively argues that because the Second
Amended Complaint [#121] “does not allege that Plaintiff Nyborg was the named insured
under a separate policy[,]” Plaintiffs living situation would only be relevant as to whether
Plaintiff Nyborg was insured under Plaintiff Szelkowski’s policy. Reply [#129] at 3 (citing
Def.’s Ex. A, Plaintiff Szelkowski’s Insurance Policy [#129-1] (the “Policy”) at 53).4
Defendant supports this argument by asserting that the Policy [#129-1] is the only policy
alleged to be at issue in this case, and that “whether the Plaintiffs lived together would
have no effect whatsoever on the coverage available to Plaintiff Szelkowski or her
insurance claim.” Motion [#109] at 7. Defendant does not cite any legal authority or
specific provision of the Policy [#129-1] for this proposition. See id.; Reply [#129] at 3-4.
Thus, the Court cannot find Plaintiff Szelkowski’s extracontractual claims to be insufficient
on this alternative basis.
Regardless, for the reasons stated above, the Court finds that Plaintiff Szelkowski
fails to sufficiently plead bad faith claims on the basis of Defendant’s alleged failure to
investigate whether Plaintiffs lived together at the time of the accident.
Accordingly, the Court recommends that the Motion [#109] be granted in part
and that Plaintiff Szelkowski’s second and third claims for relief be dismissed without
prejudice to the extent that these claims are premised on Defendant’s alleged failure to
investigate whether Plaintiffs lived together.

When adjudicating a motion to dismiss pursuant to Rule 12(b)(6), the Court “may consider
documents referred to in the complaint if the documents are central to the plaintiff’s claim and the
parties do not dispute the documents’ authenticity.” Alvarado, 493 F.3d at 1215. The existence
of an applicable insurance policy is central to each of Plaintiff Szelkowski’s claims, see generally
Second Am. Compl. [#121], and Plaintiffs do not dispute the authenticity of the Policy [#129-1]
despite its reference in the Motion [#109], see generally Response [#127]. Therefore, the Court
considers the Policy [#129-1] for the purpose of resolving the present Motion [#109].
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C.

Misrepresentation
Colorado law prohibits insurers from “[m]isrepresenting pertinent facts or

insurance policy provisions relating to coverages at issue[ ].” Colo. Rev. Stat. § 10-31104(1)(h)(I). An insurer’s misrepresentation is a sufficient basis for bad faith claims.
See TBL Collectibles, Inc. v. Owners Ins. Co., 285 F. Supp. 3d 1170, 1203 (D. Colo. 2018)
(applying Colorado law) (denying an insurer’s motion for summary judgment on a
statutory bad faith claim).
Plaintiffs argue that their allegations regarding Defendant’s misrepresentation of
available coverage to Plaintiff Szelkowski are not conclusory because “Defendant knows
exactly what the basis of Plaintiffs’ allegations regarding misrepresentations is based
upon.” Response [#127] at 7 (citing Erickson v. Pardus, 551 U.S. 89, 93 (2007) (“Specific
facts are not necessary; the statement need only give the defendant fair notice of what
the . . . claim is and the ground upon which it rests.” (alteration in original; internal
quotations and citations omitted))). In their Response [#127], Plaintiffs’ argument that
Defendant knew the basis of the alleged misrepresentation rests exclusively on the same
deposition of Defendant’s adjuster discussed above. See id. at 6-8.
Defendant challenges Plaintiffs’ reliance on the deposition on evidentiary and
substantive grounds. See Reply [#129] at 4-5. However, the Court declines to consider
the deposition for the reasons stated in section III.B., supra.

Therefore, the Court

considers Plaintiffs’ allegations only as they are stated in the Second Amended Complaint
[#121]:
Defendant misrepresented to Szelkowski the total amount of UM coverage
available for the collision. . . .

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Defendant’s misrepresentation to Szelkowski as to the total amount of UM
coverage available for the collision was unreasonable. . . .
Defendant acted knowingly of or with reckless disregard for the
unreasonableness of its misrepresentation to Szelkowski.
Second Am. Compl. [#121] ¶¶ 27, 29, 31.
Defendant argues that these allegations, as read within the four corners of the
complaint, are conclusory because they “contain[ ] no factual allegations that would
plausibly establish that [Defendant] made a misrepresentation” of available coverage.
Motion [#109] at 8. Excluding outside documents which, for the reasons stated above,
the Court cannot consider here, Plaintiffs make no arguments in response to Defendant.
See Response [#127] at 6-8. In the absence of any relevant argument by Plaintiffs, the
Court has examined the Second Amended Complaint [#121] and agrees that no factual
allegations clearly appear to directly apply to this purported conduct by Defendant, such
that the Court could find that these bases for statutory and common law bad faith claims
can survive the Motion [#109]. See Iqbal, 556 U.S. at 678 (“A pleading that offers labels
and conclusions or a formulaic recitation of the elements of a cause of action will not do.
Nor does a complaint suffice if it tenders naked assertion[s] devoid of further factual
enhancement.”).
Accordingly, the Court recommends that the Motion [#109] be granted in part
and that Plaintiff Szelkowski’s second and third claims for relief be dismissed without
prejudice to the extent that these claims are premised on Defendant’s alleged
misrepresentation to Plaintiff Szelkowski.
IV. Conclusion
Based on the foregoing,

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IT IS HEREBY RECOMMENDED that the Motion [#109] be GRANTED in part and
DENIED in part. Specifically, it is recommended that the Motion [#109] be granted such
that Plaintiff Szelkowski’s second and third claims for relief be DISMISSED in part
without prejudice to the extent that those two claims are premised on allegations
regarding Defendant’s alleged failure to investigate whether Plaintiffs lived together and
Defendant’s alleged misrepresentation to Plaintiff Szelkowski. It is further recommended
that the Motion [#109] otherwise be DENIED.
IT IS HEREBY ORDERED that pursuant to Fed. R. Civ. P. 72, the parties shall
have fourteen (14) days after service of this Recommendation to serve and file any written
objections in order to obtain reconsideration by the District Judge to whom this case is
assigned. A party’s failure to serve and file specific, written objections waives de novo
review of the Recommendation by the District Judge, Fed. R. Civ. P. 72(b); Thomas v.
Arn, 474 U.S. 140, 147-48 (1985), and also waives appellate review of both factual and
legal questions. Makin v. Colo. Dep’t of Corr., 183 F.3d 1205, 1210 (10th Cir. 1999);
Talley v. Hesse, 91 F.3d 1411, 1412-13 (10th Cir. 1996). A party’s objections to this
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. One Parcel of Real
Prop., 73 F.3d 1057, 1060 (10th Cir. 1996).
Dated: July 29, 2022

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