Cowgill v. Burke
MEMORANDUM OPINION AND ORDER by District Judge James O. Browning, this case is dismissed without prejudice; and a Final Judgment will be entered concurrently. (meq)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
JOHN HULBERT COWGILL,
Beneficiary John Hulbert Cowgill,
on behalf of the Private Foreign Trust,
No. CIV 17-0242 JB/KBM
PATRICK J. BURKE, President and Chief
Executive Officer for HSBC BANK USA,
N.A. as Trustee for Wells Fargo Asset
Securities Corporation, Mortgage PassThrough Certificates, Series 2007-7,
MEMORANDUM OPINION AND ORDER ADOPTING THE CHIEF MAGISTRATE
JUDGE’S PROPOSED FINDINGS AND RECOMMENDED DISPOSITION, AND
DISMISSING THE COMPLAINT WITHOUT PREJUDICE
THIS MATTER comes before the Court on the Chief Magistrate Judge’s Proposed
Findings and Recommended Disposition, filed July 20, 2017 (Doc. 14)(“PFRD”). No party has
objected to the PFRD. Because the Court concludes that the Honorable Karen B. Molzen, Chief
United States Magistrate Judge for the District of New Mexico’s conclusions and recommended
disposition in the PFRD are not clearly erroneous, arbitrary, obviously contrary to law, or an
abuse of discretion, the Court will adopt the PFRD and dismiss this case without prejudice.
Plaintiff John Hulbert Cowgill filed his Complaint, filed December 1, 2016 (Doc. 11)(“Complaint”), in the Second Judicial District, County of Bernalillo, State of New Mexico,
Cause No. D-202-CV-2016-07480. Defendant Patrick J. Burke removed the case to federal court
on February 17, 2017. See Notice of Removal, filed February 17, 2017 (Doc. 1)(“Notice of
Removal”). On March 3, 2017, Burke filed a motion to dismiss the case asserting, among other
things, that Cowgill never properly served him with the Complaint. See Motion to Dismiss
Plaintiff’s Complaint at 4, filed March 3, 2017 (Doc. 5)(“Motion to Dismiss”); Patrick J. Burke’s
Reply Supporting his Motion to Dismiss Plaintiff’s Complaint at 2, filed March 31, 2017 (Doc.
On June 23, 2017, the Court referred this case to Chief Magistrate Judge Karen B.
Molzen for recommended findings and final disposition. See Order of Reference Relating to
Bankruptcy Appeals, Social Security Appeals, Prisoner Cases, Non Prisoner Pro Se Cases and
Immigration Habeas Corpus Proceedings, filed June 23, 2017 (Doc. 12)(“Referral Order”). On
June 30, 2017, the Chief Magistrate Judge entered an Order to Show Cause, requiring Cowgill to
serve Burke properly or to provide the Court with a written explanation showing good cause why
service has not been made. See Order to Show Cause, filed June 30, 2017 (Doc. 13)(“Cause
Order”). Cowgill did not respond, and, on July 20, 2017, Chief Magistrate Judge Molzen sua
sponte proposed that the Court dismiss the case without prejudice because of Cowgill’s apparent
lack of interest in properly litigating this matter. See PFRD at 1.
Objections to the Recommended Disposition were due by August 3, 2017. Neither party
LAW REGARDING DISMISSAL UNDER RULE 4(m) OF THE FEDERAL RULES OF
“To obtain personal jurisdiction over a nonresident defendant in a diversity action, a
plaintiff must show that [(i)] jurisdiction is legitimate under the laws of the forum state and that
[(ii)] the exercise of jurisdiction does not offend the due process clause of the Fourteenth
Amendment.” Benton v. Cameco Corp., 375 F.3d 1070, 1075 (10th Cir. 2004)(internal quotation
marks omitted). “A judgment entered absent sufficient service of process upon a defendant
violates due process and is void as to the defendant for want of personal jurisdiction.” T.H.
McElvain Oil & Gas Ltd. P’ship v. Grp. I: Benson-Montin-Greer Drilling Corp., 2017-NMSC004, 388 P.3d 240, 248 (Vigil, J.), reh’g denied (Nov. 9, 2016), cert. denied sub nom. T.H.
McElvain Oil & Gas Ltd. P’ship v. Grp. I: Benson-Montin-Greer Drilling Corp., 137 S. Ct. 1584
Where service of process in state court is defective or incomplete, 28 U.S.C. § 1448 and
rule 4(m) give the plaintiff a deadline from the date defendant removes the case to federal court
in which the imperfect or defective service may be cured. See Baumeister v. N.M. Comm’n for
the Blind, 409 F. Supp. 2d 1351, 1352 (D.N.M. 2006)(Smith, M.J.). See also Green v. Bank of
Am., N.A., 2013 WL 11336861, at *2 (D.N.M. 2013)(Parker, J.); Fed. R. Civ. P. 4(m); 28 U.S.C.
§ 1448. “If a defendant is not served within 90 days after the complaint is filed, the court -- on
motion or on its own after notice to the plaintiff -- must dismiss the action without prejudice
against that defendant or order that service be made within a specified time.” Fed. R. Civ. P.
LAW REGARDING OBJECTIONS TO PROPOSED FINDINGS AND
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 parties’ consent, to hear a pretrial matter
dispositive of a claim or defense . . . .”). Rule 72(b)(2) governs objections: “Within 10 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.” Finally, when resolving
objections to a Magistrate Judge’s proposal, “the 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
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
28 U.S.C. § 636(b)(1)(C).
“The filing of objections to the 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, 73 F.3d 1057, 1059 (10th Cir. 1996)(“One Parcel”)(quoting Thomas v. Arn, 474
U.S. 140, 147 (1985)). As the Tenth Circuit has noted, “the filing of objections advances the
interests that underlie the Magistrate’s Act, 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 held in One Parcel “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
28 U.S.C. §§ 631-39.
factual and legal questions.’” One Parcel, 73 F.3d at 1059 (citations omitted). 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.”). And, in an unpublished opinion, the Tenth
Circuit stated 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 F. App’x 795, 796 (10th
In One Parcel, the Tenth Circuit, in accord with other Courts of Appeals, 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 -- in the course of approving the United States 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
Pevehouse v. Scibana is an unpublished opinion, but the Court can rely on an
unpublished opinion to the extent its reasoned analysis is persuasive in the case before it. See
10th Cir. R. 32.1(A)(“Unpublished opinions are not precedential, but may be cited for their
persuasive value.”). The Tenth Circuit has stated:
In this Circuit, unpublished orders are not binding precedent, . . . and we have
generally determined that citation to unpublished opinions is not favored.
However, if an unpublished opinion or order and judgment has persuasive value
with respect to a material issue in a case and would assist the court in its
disposition, we allow a citation to that decision.
United States v. Austin, 426 F.3d 1266, 1274 (10th Cir. 2005)(citations omitted). The Court
concludes that Pevehouse v. Scibana has persuasive value with respect to a material issue, and
will assist the Court in its disposition of this Memorandum Opinion and Order.
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)(hereafter Senate Report); H.R.
Rep. No. 94-1609, p. 11 (1976); U.S. Code Cong. & Admin. News 1976, p. 6162
(hereafter 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 judge’s report than the court considers appropriate. Moreover,
the Subcommittee that drafted and held hearing 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 the 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)(hereafter Senate Hearings). The Committee
also heard Judge 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 object
as a procedural default, waiving the right to further consideration of any sort. We
thus find nothing in the statute or the legislative history that convinces us that
Congress intended to forbid a rule such as the one adopted by the Sixth Circuit.
Thomas v. Arn, 474 U.S. at 150-52 (emphasis in original)(footnotes omitted).
The Tenth Circuit also noted, “however, that ‘[t]he waiver rule as a procedural bar need
not be applied when the interests of justice so dictate.’” One Parcel, 73 F.3d at 1060 (quoting
Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991)(“We join those circuits that have
declined to apply the waiver rule to a pro se litigant’s failure to object when the magistrate’s
order does not apprise the pro se litigant of the consequences of a failure to object to findings and
recommendations.”)(citations omitted). Cf. Thomas v. Arn, 474 U.S. at 154 (noting that, while
“[a]ny party that desires plenary consideration by the Article III judge of any issue need only
ask,” a failure to object “does not preclude further review by the district judge, sua sponte or at
the request of a party, under a de novo or any other standard”). In One Parcel, the Tenth Circuit
noted that the district judge had decided sua sponte to conduct a de novo review despite the lack
of specificity in the objections, but the Tenth Circuit held that it would deem the issues waived
on appeal because it would advance the interests underlying the waiver rule. See 73 F.3d at
1060-61 (citing cases from other Courts of Appeals where district courts elected to address
merits despite potential application of waiver rule, but the Courts of Appeals opted to enforce
Where a party files timely and specific objections to the Magistrate Judge’s proposed
findings and recommendations, on “dispositive motions, the statute calls for a de novo
determination, not a de novo hearing.” United States v. Raddatz, 447 U.S. 667, 674 (1980).
“[I]n providing for a ‘de novo determination’ rather than a de novo hearing, Congress intended to
permit whatever reliance a district judge, in the exercise of sound judicial discretion, chose to
place on a magistrate’s proposed findings and recommendations.” United States v. Raddatz, 447
U.S. at 676 (quoting 28 U.S.C. § 636(b); citing Mathews v. Weber, 423 U.S. 261, 275 (1976)).
The Tenth Circuit requires a “district court to consider relevant evidence of record and not
merely review the magistrate judge’s recommendation” when conducting a de novo review of a
party’s timely, specific objections to the magistrate’s report. In re Griego, 64 F.3d 580, 583-84
(10th Cir. 1995). “When objections are made to the magistrate’s factual findings based on
conflicting testimony or evidence . . . the district court must, at a minimum, listen to a tape
recording or read a transcript of the evidentiary hearing.” Gee v. Estes, 829 F.2d 1005, 1008-09
(10th Cir. 1987).
A district court must “clearly indicate that it is conducting a de novo determination”
when a party objects to the Magistrate Judge’s report “based upon conflicting evidence or
testimony.” Gee v. Estes, 829 F.2d at 1009. On the other hand, a district court fails to meet the
requirements of 28 U.S.C. § 636(b)(1) when it indicates that it gave “considerable deference to
the magistrate’s order.” Ocelot Oil Corp. v. Sparro Indus., 847 F.2d 1458, 1464 (10th Cir.
1988). A district court need not, however, “make any specific findings; the district court must
merely conduct a de novo review of the record.” Garcia v. City of Albuquerque, 232 F.3d 760,
766 (10th Cir. 2000).
“[T]he district court is presumed to know that de novo review is
required . . . . Consequently, a brief order expressly stating the court conducted de novo review
is sufficient.” Northington v. Marin, 102 F.3d 1564, 1570 (10th Cir. 1996)(citing In re Griego,
64 F.3d at 583-84). “[E]xpress references to de novo review in its order must be taken to mean it
properly considered the pertinent portions of the record, absent some clear indication otherwise.”
Bratcher v. Bray-Doyle Indep. Sch. Dist. No. 42, 8 F.3d 722, 724 (10th Cir. 1993). The Tenth
Circuit has previously held that a district court properly conducted a de novo review of a party’s
evidentiary objections when the district court’s “terse” order contained one sentence for each of
the party’s “substantive claims” and did “not mention his procedural challenges to the
jurisdiction of the magistrate to hear the motion.” Garcia v. City of Albuquerque, 232 F.3d at
766. The Tenth Circuit has explained that any brief district court order that “merely repeat[s] the
language of § 636(b)(1) to indicate its compliance” is sufficient to demonstrate that the district
court conducted a de novo review:
It is common practice among district judges in this circuit to make such a
statement and adopt the magistrate judges’ recommended dispositions when they
find that magistrate judges have dealt with the issues fully and accurately and that
they could add little of value to that analysis. We cannot interpret the district
court’s statement as establishing that it failed to perform the required de novo
In re Griego, 64 F.3d at 584.
Notably, because a district court may place whatever reliance it chooses on a Magistrate
Judge’s proposed findings and recommendations, a district court “may accept, reject, or modify,
in whole or in part, the findings or recommendations made by the magistrate,” 28 U.S.C. §
636(b)(1), as “Congress intended to permit whatever reliance a district judge, in the exercise of
sound judicial discretion, chose to place on a magistrate’s proposed findings and
recommendations,” United States v. Raddatz, 447 U.S. at 676 (emphasis omitted). See Bratcher
v. Bray-Doyle Indep. Sch. Dist. No. 42, 8 F.3d at 724-25 (holding that the district court’s
adoption of the Magistrate Judge’s “particular reasonable-hour estimates” is consistent with the
de novo determination that 28 U.S.C. § 636(b)(1) and United States v. Raddatz require).
Where no party objects to the Magistrate Judge’s proposed findings and recommended
disposition, the Court has, as a matter of course in the past and in the interests of justice,
reviewed the Magistrate Judge’s recommendations. In Pablo v. Soc. Sec. Admin., 2013 WL
1010401 (D.N.M. 2013)(Browning, J.), the plaintiff failed to respond to the Magistrate Judge’s
proposed findings and recommended disposition, and thus waived his right to appeal the
recommendations, but the Court nevertheless conducted a review. The Court generally does not,
however, “review the PF&RD de novo, because the parties had not objected thereto, but rather
review[s] the recommendations to determine whether they clearly erroneous, arbitrary, obviously
contrary to law, or an abuse of discretion.” Pablo v. Soc. Sec. Admin., 2013 WL 1010401, at *4.
The Court, thus, does not determine independently what it would do if the issues had come
before the Court first, but rather adopts the proposed findings and recommended disposition
where “[t]he Court cannot say that the Magistrate Judge’s recommendation . . . is clearly
erroneous, arbitrary, obviously contrary to law, or an abuse of discretion.” Pablo v. Soc. Sec.
Admin., 2013 WL 1010401, at *4. See Alexandre v. Astrue, 2013 WL 1010439, at *4 (D.N.M.
2013)(Browning, J.)(“The Court rather reviewed the findings and recommendations of the
Honorable Stephan M. Vidmar, United States Magistrate Judge, to determine if they are clearly
erroneous, arbitrary, obviously contrary to law, or an abuse of discretion. The Court determines
that they are not, and will therefore adopt the PFRD.”); Trujillo v. Soc. Sec. Admin., 2013 WL
1009050, at *5 (D.N.M. 2013)(Browning, J.)(adopting the proposed findings and conclusions,
noting: “The Court did not review the ARD de novo, because Trujillo has not objected to it, but
rather reviewed the . . . findings and recommendations to determine if they are clearly erroneous,
arbitrary, obviously contrary to law, or an abuse of discretion, which they are not.”). This
review, which is deferential to the Magistrate Judge’s work when there is no objection,
nonetheless provides some review in the interest of justice, and seems more consistent with the
waiver rule’s intent than no review at all or a full-fledged review. Accordingly, the Court
considers this standard of review appropriate. See Thomas v. Arn, 474 U.S. at 151 (“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.”). The
Court is reluctant to have no review at all where it issues an order adopting the Magistrate
Judge’s proposed findings and recommendations.
The Court has carefully reviewed the PFRD and the Motion to Dismiss. The Court did
not review the PFRD de novo, because the parties have not objected thereto, but rather reviewed
Chief Magistrate Judge Molzen’s PFRD to determine if it is clearly erroneous, arbitrary,
obviously contrary to law, or an abuse of discretion. See Alexandre v. Astrue, 2013 WL
1010439, at *4. The Court concludes that it is not clearly erroneous, arbitrary, obviously
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contrary to law, or an abuse of discretion. Accordingly, the Court will dismiss this case without
IT IS ORDERED that: (i) this case is dismissed without prejudice; and (ii) a Final
Judgment will be entered concurrently.
UNITED STATES DISTRICT JUDGE
Parties and Counsel:
John Hulbert Cowgill
Albuquerque, New Mexico
Plaintiff pro se
Sandra A Brown
Snell & Wilmer L.L.P.
Attorneys for Defendant
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