Jaramillo et al v. Frewing et al
MEMORANDUM OPINION AND ORDER adopting 20 REPORT AND RECOMMENDATIONS re 12 14 Amended MOTION to Dismiss by District Judge James O. Browning. (vv)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
RICK JARAMILLO; STEVE
DURAN; RAILYARD BREWING
COMPANY, LLC and RINGSIDE
No. CIV 17-0673 JB/SCY
DAVID FREWING; U.S. BOWLING
CORPORATION and CRAIG DILL,
MEMORANDUM OPINION AND ORDER ADOPTING THE MAGISTRATE JUDGE’S
PROPOSED FINDINGS AND RECOMMENDED DISPOSITION
THIS MATTER comes before the Court on the Magistrate Judge’s Proposed Findings
and Recommended Disposition, filed July 24, 2018 (Doc. 20)(“PFRD”), advising the Court to:
(i) grant Defendant Chapter 11 Trustee Craig H. Dill’s Amended Motion to Dismiss and to
Sanction Plaintiffs, filed November 6, 2017 (Doc. 12)(“Dill MTD”); and (ii) grant Defendant
David Frewing and U.S. Bowling’s Amended Motion to Dismiss, or in the alternative, Motion to
Stay Proceedings, filed November 15, 2017 (Doc. 14)(“Frewing MTD”). The parties have not
filed any objections to the PFRD, which waives their right to review of the PFRD. See United
States v. One Parcel of Real Prop., 73 F.3d 1057, 1060 (10th Cir. 1996)(“One Parcel”). Because
the Court concludes that the PFRD by the Honorable Steven C. Yarbrough United States
Magistrate Judge for the United States District Court for the District of New Mexico is not
clearly erroneous, arbitrary, obviously contrary to law, or an abuse of discretion, the Court will:
(i) adopt the PFRD as its own; (ii) grant the Dill MTD; and (iii) grant the Brewing MTD.
Accordingly, the Court will dismiss the Complaint to Recover Compensatory, Consequential and
Punitive Damages for Defendants’ Breach of Contract, Promissory Estoppel, and Negligent
Misrepresentation, filed June 23, 2017 (Doc. 1)(“Complaint”), with prejudice.
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 to those
recommendations: “Within 14 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.” Fed. R. Civ. P. 72(b). Finally, when resolving objections to a Magistrate
Judge’s recommendation, “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.” One
Parcel, 73 F.3d at 1059 (quoting Thomas v. Arn, 474 U.S. 140, 147 (1985)). As the United
States Court of Appeals for 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
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
28 U.S.C. §§ 631-39.
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 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 of America -- 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
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
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.
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)(emphases in original)). 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.
Although no party objected to the PFRD before the deadline to do so, the Court has
reviewed the PFRD. Upon review, the Court determines that Magistrate Judge Yarbrough’s
findings and recommended disposition in the PFRD are not clearly erroneous, arbitrary,
obviously contrary to law, or an abuse of discretion. Accordingly, the Court will: (i) adopt the
PFRD as its own; (ii) grant the Dill MTD; and (iii) grant the Frewing MTD.
Because the Court also grants Dill’s request for sanctions, Dill shall file an affidavit of
costs in connection with the preparation of his Motion to Dismiss within fourteen calendar days
of the entry of this Memorandum Opinion and Order. Further, consistent with Magistrate Judge
Yarbrough’s recommendation, the Court orders that filing restrictions be placed on the Plaintiffs
to prevent future frivolous lawsuits against Dill. Therefore, as a precondition to filing suit against
Dill, the Plaintiffs must: (i) file a petition with the Clerk of Court requesting leave to file a pro se
proceeding against Dill; (ii) file with the Clerk of Court a notarized affidavit setting out the bases
of the causes of action they intend to pursue against Dill and specify why the intended causes of
action are not directed toward Dill in his capacity as the bankruptcy trustee; or (iii) aver that they
have received permission in bankruptcy court to bring suit against Dill in his capacity as trustee
of the bankruptcy estate.
IT IS ORDERED that: (i) the Magistrate Judge’s Proposed Findings and Recommended
Disposition, filed July 24, 2018 (Doc. 20), is adopted; (ii) the Complaint to Recover
Compensatory, Consequential and Punitive Damages for Defendants’ Breach of Contract,
Promissory Estoppel, and Negligent Misrepresentation, filed June 23, 2017 (Doc. 1), is
dismissed with prejudice; (iii) Defendant Craig Dill shall file an affidavit of costs in connection
with the preparation of his Amended Motion to Dismiss and to Sanction Plaintiffs, filed
November 6, 2017 (Doc. 12), within fourteen calendar days of the entry of this Memorandum
Opinion and Order; and (iv) filing restrictions will be placed on the Plaintiffs to prevent future
frivolous lawsuits against Dill.
UNITED STATES DISTRICT JUDGE
Parties and Counsel:
Santa Fe, New Mexico
Plaintiff pro se
Santa Fe, New Mexico
Plaintiff pro se
William R. Keleher
Smidt Reist & Keleher PC
Albuquerque, New Mexico
Attorney for Defendants David Frewing and U.S. Bowling Corporation
- 10 -
Thomas D. Walker
Leslie D. Maxwell
Walker & Associates, P.C.
Albuquerque, New Mexico
Attorneys for Defendant Craig Dill
- 11 -
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