Barnes v. Omnicell

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 24-cv-00538-PAB-MEH
LARRY L. BARNES,
Plaintiff,
v.
OMNICELL,
Defendant.
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Michael E. Hegarty, Chief United States Magistrate Judge.
Defendant has filed a Motion for Judgment on the Pleadings generally arguing Plaintiff’s
claims in this case are barred by res judicata based on Plaintiff’s prior case against Defendant in
this District, Larry L. Barnes v. Omnicell, District of Colorado Case No. 21-cv-01702-PAB-MEH
(“Barnes I”). ECF 19. After the Parties fully briefed the Motion, I held oral argument on May 14,
2024. ECFs 19, 24, 28, 32. The oral argument primarily focused on Barnes I and the effect of the
Final Pretrial Order in that case under Federal Rule of Civil Procedure 16. See ECF 32. I permitted
the Parties to file supplemental briefs on the Rule 16 issue, which they have now done. ECFs 33,
35. For the following reasons, I respectfully recommend Defendant’s Motion be granted.
FACTUAL BACKGROUND
Plaintiff, proceeding pro se, initiated Barnes I on June 22, 2021, asserting one claim to
recover “back pay for the unpaid overtime for the last three years and liquidated damages.”1 Case
1 “Liquidated damages” is a remedy available under the Fair Labor Standards Act, 29 U.S.C. §§
216(b), 260.
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No. 21-cv-01702-PAB-MEH, ECF 1 at 5. Relevant to the instant Motion, below I briefly recount
the procedural history of Barnes I and the Parties’ varied assertions as to the Court’s jurisdiction
in that case.
In the Barnes I Complaint, Plaintiff did not plead a specific statutory or common law basis
for his claim. See id. In the “Jurisdiction” section of the form Complaint, Plaintiff checked diversity
jurisdiction and stated the parties are citizens of different states, identifying himself as a citizen of
Colorado and Defendant as a citizen of California. Id. at 3. However, in the “Statement of
Claim(s)” section of the Complaint, Plaintiff discussed both a federal regulation and a Colorado
state regulation regarding wages. Id. at 4. Defendant’s Answer in Barnes I admitted federal
jurisdiction is proper as asserted in the “Jurisdiction” section, Case No. 21-cv-01702-PAB-MEH,
ECF 12 at 2, but speculated whether Plaintiff was proceeding under the FLSA, id. at 3, and
Colorado state law (which would be the Colorado Wage Claim Act (“CWCA”), Colo. Rev. Stat.
§§ 8–4–101 to –123), id. at 4.
The Scheduling Order in Barnes I identified federal law—specifically the Fair Labor
Standards Act (“FLSA”)—as the jurisdictional basis for the Complaint, with jurisdiction over any
state law claim, i.e., a claim under the CWCA, premised on supplemental (not original)
jurisdiction. Case No. 21-cv-01702-PAB-MEH, ECF 17 at 2. Thereafter, the Parties and the Court
focused on the FLSA claim in all material respects, with the Parties ultimately filing cross motions
for summary judgment. Case No. 21-cv-01702-PAB-MEH, ECFs 43, 45.
The Parties’ briefing on their cross motions for summary judgment further muddied the
waters as to the basis of the Court’s jurisdiction in Barnes I. Defendant’s Motion for Summary
Judgment (“Defendant’s Motion”) characterized Plaintiff as bringing claims “under federal wage
and hour laws,” and state law claims under the Court’s “supplemental jurisdiction.” Case No. 21-
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cv-01702-PAB-MEH, ECF 45 at 1. In turn, Plaintiff’s Motion for Summary Judgment (“Plaintiff’s
Motion”) devoted five of its fourteen pages to a recitation of federal and state wage regulations.
See Case No. 21-cv-01702-PAB-MEH, ECF 43 at 10–14. Plaintiff mentioned diversity jurisdiction
in the Motion’s undisputed fact section, id. at 2 (“Jurisdiction, diversity of citizenship, is not
disputed.”), but otherwise did not address it. Defendant’s Response to Plaintiff’s Motion—filed
only five days after Defendant filed its own Motion for Summary Judgment—then admitted
diversity jurisdiction. Case No. 21-cv-01702-PAB-MEH, ECF 48 at 3 (“Omnicell does not dispute
jurisdiction and diversity of citizenship.”). Thus, only five days apart, Defendant stated
contradictory positions on the jurisdictional basis for Plaintiff’s state law claims: supplemental
jurisdiction per its own Motion and original jurisdiction per the admission in its Response brief.
On February 22, 2023, I issued a Recommendation to grant the Defendant’s Motion as to
the claim under the FLSA and to not exercise supplemental jurisdiction over Plaintiff’s state law
claims. Case No. 21-cv-01702-PAB-MEH, ECF 57. In his “Objection to Recommendation of
United States Magistrate Judge,” Plaintiff did not address whatsoever (1) my recommendation to
decline supplemental jurisdiction, nor (2) my omission of any discussion of diversity jurisdiction.
Case No. 21-cv-01702-PAB-MEH, ECF 59.
While my Recommendation was pending, on March 15, 2023, I entered a Final Pretrial
Order in Barnes I. Case No. 21-cv-01702-PAB-MEH, ECF 64. The Final Pretrial Order stated the
Court has “original jurisdiction . . . under federal wage and hour laws,” and “supplemental
jurisdiction over Plaintiff’s state law claims. Id. at 2. The Order also contained the following,
standard language:
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Hereafter, this Final Pretrial Order, which will control the subsequent course of this
action and the trial and may not be amended except by consent of the parties and
approval by the court or by order of the court to prevent manifest injustice. The
pleadings will be deemed merged herein. This Final Pretrial Order supersedes the
Scheduling Order.
Id. at 11–12. Although defense counsel created the first drafts of both the Scheduling Order and
Final Pretrial Order, defense counsel consulted with Plaintiff on both.
On September 25, 2023, Chief Judge Brimmer adopted my Recommendation, stating that
“the Court will accept Judge Hegarty’s recommendation to decline to exercise jurisdiction over
Mr. Barnes’ state law claims, which Mr. Barnes did not object to.” Case No. 21-cv-01702-PAB-
MEH, ECF 68 at 25. Chief Judge Brimmer appended the following footnote to his conclusion:
Under Colo. Rev. Stat. § 13-80-111, if claims are properly commenced within the
statute of limitations and involuntarily dismissed because of lack of jurisdiction,
the plaintiff “may commence a new action upon the same cause of action within
ninety days after the termination of the original action or within the period
otherwise allowed by this article, whichever is later.” See also Artis v. Dist. of
Columbia, 583 U.S. 71, 74 (2018) (holding that 28 U.S.C. § 1367(d) tolls the statute
of limitations for state law claims asserted under § 1367(a) during the pendency of
the federal litigation in which such claims are brought and for thirty days following
involuntary dismissal of those claims on jurisdictional grounds).
Id. This language presumed that there were no pending claims under the Court’s diversity
jurisdiction. At the end of his Order, Chief Judge Brimmer ordered that the case be closed, id.,
which was mirrored in the language of the Final Judgment, Case No. 21-cv-01702-PAB-MEH,
ECF 69 at 1.
Plaintiff appealed Judge Brimmer’s Order adopting my Recommendation and granting
Defendant’s Motion. Case No. 21-cv-01702-PAB-MEH, ECF 70; see also Larry L. Barnes v.
Omnicell, Tenth Circuit Court of Appeals Case No. No. 23-1336. On appeal, Plaintiff did not
address whatsoever the district court’s refusal to exercise supplemental jurisdiction nor any theory
of diversity jurisdiction. In its decision affirming the district court, the Tenth Circuit noted that
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Plaintiff was proceeding under “federal and Colorado law.” Case No. 21-cv-01702-PAB-MEH,
ECF 78 at 1 (Order and Judgment from Tenth Circuit Court of Appeals Case No. No. 23-1336).
However, the substantive analysis of the Tenth Circuit’s Order and Judgment focused only on
Plaintiff’s FLSA claim. Id. at 11. The Order and Judgment did not otherwise address the state law
claims, any concept of diversity jurisdiction, or the district court’s decision to not exercise
supplemental jurisdiction. Moreover, the Tenth Circuit noted that “the failure to file timely,
specific objections to the magistrate judge’s report and recommendation waives appellate review
of both factual and legal questions.” Id. at 8 (citing United States v. 2121 E. 30th St., 73 F.3d 1057,
1060 (10th Cir. 1996)).
PROCEDURAL HISTORY
While his appeal in Barnes I was pending before the Tenth Circuit, on December 22, 2023,
Plaintiff initiated the instant case against Omnicell in Jefferson County, Colorado, District Court
(“Barnes II”). ECF 4. 	As with Barnes I, in this case Plaintiff “claims the time on call as time
worked and would like payment.” Id. at 4. Under the Jurisdiction section of his Complaint, Plaintiff
invokes a number of federal and state laws, including the FLSA, CWCA, and various federal and
state regulations Id. at 2–3. Plaintiff does not mention diversity jurisdiction but provides his
address as Florida and Defendant’s address as California. Id. at 1. His Complaint discusses Barnes
I, then repeats the footnote from Judge Brimmer’s Order granting Defendant’s Motion for
Summary Judgment, noting that “the plaintiff may commence a new action upon the same cause
of action within ninety days after the termination of the original action or within the period
otherwise allowed by this article, whichever is later.” Id. at 4 (internal quotation omitted).
On February 26, 2024, Defendant removed this case from Jefferson Country District Court
based on diversity jurisdiction under 28 U.S.C. § 1332. ECF 1 at 2–5. Defendant filed an Answer
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to Plaintiff’s Complaint, ECF 12, then filed the instant Motion for Judgment on the Pleadings on
March 26, 2024, ECF 19. The Motion is fully briefed—including supplemental briefs from both
Parties—and, as noted above, the Court heard argument on the Motion on May 14, 2024. ECFs
19, 24, 28, 32, 33, 35.
LEGAL STANDARD
The Court evaluates a motion for judgment on the pleadings pursuant to Federal Rule of
Civil Procedure 12(c) using the same standard as a motion to dismiss pursuant to Federal Rule of
Civil Procedure 12(b)(6). Brown v. Montoya, 662 F.3d 1152, 1160 n.4 (10th Cir. 2011) (“We use
the same standard when evaluating 12(b)(6) and 12(c) motions.” (quotation omitted)). Thus, the
Court must “accept all facts pleaded by the non-moving party as true and grant all reasonable
inferences from the pleadings in favor of the same.” Colony Ins. Co. v. Burke, 698 F.3d 1222, 1228
(10th Cir. 2012). The Court, however, considers a broader factual record when evaluating a Rule
12(c) motion than it does for a Rule 12(b)(6) motion: “the Court is not limited to the well-pled
allegations contained in the Complaint but instead considers the complaint, the answer, any written
documents attached to them, and any matter of which the court can take judicial notice for the
factual background of the case.” Tuttle v. Nationwide Affinity Ins. Co. of Am., No. 19-cv-00526-
NYW, 2019 WL 2208513, at *2 (D. Colo. May 22, 2019) (quotation omitted). A court should not
grant a Rule 12(c) motion unless “the moving party clearly establishes that no material issue of
fact remains to be resolved and the party is entitled to judgment as a matter of law.” Ciber, Inc. v.
ACE Am. Ins. Co., 261 F. Supp. 3d 1119, 1125 (D. Colo. 2017).
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ANALYSIS
Defendant generally contends Plaintiff’s claims in this case are barred by res judicata.2
Specifically, Defendant makes two arguments: first, any claim under the FLSA is precluded
because it is identical to the FLSA claim dismissed on summary judgment in Barnes I. ECF 19 at
5–6. Second, Defendant argues any state law wage claims are precluded because Plaintiff failed to
assert diversity jurisdiction in Barnes I. Id. at 6–11. I address each in turn below.
Claim preclusion “prevent[s] a party from litigating a legal claim that was or could have
been the subject of a previously issued final judgment.” MACTEC, Inc. v. Gorelick, 427 F.3d 821,
831 (10th Cir. 2005). The doctrine is animated by the principle that a plaintiff “who once has had
a chance to litigate a claim before an appropriate tribunal usually ought not have another chance
to do so.” Stone v. Dep’t of Aviation, 453 F.3d 1271, 1275 (10th Cir. 2006) (quotation omitted).
Claim preclusion acts to bar a plaintiff’s claims when three elements are satisfied: “(1) a final
judgment on the merits in an earlier action; (2) identity of parties or privies in the two suits; and
(3) identity of the cause of action in both suits.” Markley v. U.S. Bank Nat’l Ass’n, No. 23-cv-
01422-PAB-SBP, 2024 WL 1281520, at *5 (D. Colo. Mar. 26, 2024) (quotation omitted).
In this case, I find all three elements of claim preclusion are met as to any claim asserted
under the FLSA. First, a final judgment was reached in Barnes I on the merits of Plaintiff’s FLSA
claim. Case No. 21-cv-01702-PAB-MEH, ECFs 68, 69. Second, there is no dispute that the Parties
in Barnes II are the same Parties from Barnes I such that the second element is satisfied. Lenox
2 The doctrine of res judicata encompasses two distinct barriers to repeat litigation: claim
preclusion and issue preclusion. Park Lake Res. Ltd. Liab. v. U.S. Dep’t of Agr., 378 F.3d 1132,
1135 (10th Cir. 2004). In its Motion, Defendant appears to use “res judicata” and “claim
preclusion” interchangeably. See generally ECF 19. Therefore, I construe Defendant’s argument
to be that Plaintiff’s claims are barred specifically by claim preclusion and, for clarity, employ the
term “claim preclusion” instead of “res judicata.”
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MacLaren Surgical Corp., 847 F.3d at 1240 (“Generally, claim preclusion requires that the named
parties in the first and second suits be identical.”); see, e.g., Hatch v. Boulder Town Council, 471
F.3d 1142, 1146 (10th Cir. 2006) (finding this element of claim preclusion satisfied where “[i]t is
uncontested that both . . . were parties to the 1999 Utah action”). Lastly, there is “identity of the
cause of action in both suits,” because Plaintiff’s FLSA claim in this case—to the extent he is
asserting one—and his FLSA claim in Barnes I arise from the same underlying events. The Tenth
Circuit applies a transactional approach to determine what constitutes a “cause of action” for claim
preclusion purposes. Lenox MacLaren Surgical Corp., 847 F.3d at 1240. Under this approach, “a
cause of action includes all claims or legal theories of recovery that arise from the same transaction,
event, or occurrence.” Wilkes v. Wy. Dep’t of Emp. Div. of Lab. Standards, 314 F.3d 501, 504
(10th Cir. 2002). “[A]ll claims arising from the same employment relationship constitute the same
transaction or series of transactions for claim preclusion purposes.” Mitchell v. City of Moore, 218
F.3d 1190, 1202 (10th Cir. 2000). Not only does Plaintiff’s FLSA claim in this case arise from the
same employment relationship, wage dispute with Defendant, and time frame as his FLSA claim
in Barnes I, but Plaintiff’s claim in this case is even based on identical factual allegations. Compare
Case No. 21-cv-01702-PAB-MEH, ECF 1 at 4 with ECF 4 at 4. Accordingly, the third, and final,
element of claim preclusion is satisfied. For this reason, I recommend Defendant’s Motion be
granted as to any FLSA claim asserted in this case.
Defendant’s second argument—that Plaintiff’s state law claims are barred because Plaintiff
failed to assert diversity jurisdiction in Barnes I—requires a more detailed discussion. As
explained below, while Plaintiff did assert diversity jurisdiction in Barnes I, I find his state law
claims are nonetheless barred in this case.
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Generally, a dismissal without prejudice “does not operate as an adjudication upon the
merits and thus does not have a res judicata effect.” Markley, 2024 WL 1281520, at *6 (quotation
omitted). Relevant here, however, is an exception to this rule that arises when a federal court
declines to exercise supplemental jurisdiction over state law claims and dismisses those claims
without prejudice. If a plaintiff had an alternative basis for federal jurisdiction over those state law
claims—namely, diversity jurisdiction—but failed to assert it in the original action, those state law
claims are barred from any subsequent action by claim preclusion even where the federal court’s
original dismissal was without prejudice. See, e.g., Shaver v. F.W. Woolworth Co., 840 F.2d 1361,
1363–64 (7th Cir. 1988); Kale v. Combined Ins. Co. of Am., 924 F.2d 1161, 1166–67 (1st Cir.
1991); Markley, 2024 WL 1281520, at *6; Dalal v. Alliant Techsystems, Inc., 934 P.2d 830, 833–
35 (Colo. App. 1996). This exception is consistent with the general principle of claim preclusion:
that a party cannot relitigate a legal claim “that was or could have been the subject of a previously
issued final judgment.” Lenox MacLaren Surgical Corp., 847 F.3d at 1239. See also Kale, 924
F.2d at 1166 (“Unless res judicata is to be robbed of its doctrinal significance, appellant had an
obligation to cluster his theories of recovery in Kale I, by whatever necessary jurisdictional means,
or else forever hold his peace.” (emphasis added)).
Relying on this exception, Defendant argues Plaintiff’s state law claims are barred in this
action because of Plaintiff’s flawed claim to diversity jurisdiction in Barnes I. 	In making its
argument, Defendant characterizes Plaintiff’s jurisdiction-related failure in two different ways:
that Plaintiff “failed to assert” diversity jurisdiction and that Plaintiff “failed to pursue his state
law claims . . . despite this Court having an alternative basis for jurisdiction,” namely diversity.
ECF 19 at 7. I disagree with Defendant’s first claim, that Plaintiff failed to assert diversity
jurisdiction in Barnes I. As detailed above, in Barnes I, Plaintiff pleaded diversity jurisdiction.
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Defendant admitted that diversity jurisdiction existed. Factually, diversity jurisdiction did exist.
Plaintiff repeated the assertion of diversity jurisdiction in his Motion for Summary Judgment, and
Defendant again admitted it in its Response. Although the Scheduling Order and Final Pretrial
Order (both drafted in the first instance by defense counsel) did not mention that specific
jurisdictional basis,3 Plaintiff never affirmatively disavowed his assertion of diversity jurisdiction.
That Plaintiff affirmatively asserted diversity jurisdiction distinguishes this case from those
cited by Defendant—including Judge Brimmer’s recent decision in Markley. In each of those
cases, the plaintiffs failed to affirmatively assert diversity jurisdiction at all. See Shaver, 840 F.2d
at 1368 (7th Cir. 1988) (“Because Shaver neglected to assert the existence of diversity jurisdiction
in his prior action in order to pursue his breach of contract claims, both the strict test of and the
policy behind the res judicata doctrine bars the present action.”); Kale, 924 F.2d at 1164 (“There
is no dispute that the plaintiff could have established diversity jurisdiction in Kale I, but failed
properly to plead it. Indeed, the record does not indicate that Kale at any time alerted Judge Skinner
to the existence—or even the possibility—of diversity jurisdiction.” (citation omitted)); Markley,
2024 WL 1281520, at *3 (“Mr. Markley did not assert that the court had diversity jurisdiction.”);
Dalal, 934 P.2d at 832 (“Dalal requested the court to exercise its pendent, or supplemental,
jurisdiction over his state law claims . . . . However, he did not assert jurisdiction based upon
diversity of citizenship under 28 U.S.C. § 1332”).
Even though Plaintiff asserted diversity jurisdiction in Barnes I, I agree that in some
respect, Plaintiff failed to knowingly pursue his state law claims despite this Court having that
3 I find it was pure mistake by both Parties that diversity jurisdiction was not raised in the
Scheduling Order or the Final Pretrial Order in Barnes I. I am certain the omission was inadvertent
by Plaintiff, and I do not believe Defendant’s counsel deliberately excluded reference to diversity
jurisdiction. To believe otherwise would raise serious ethical concerns which are not supported by
the record currently before me.
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alternative basis for original jurisdiction. A federal court’s exercise of original jurisdiction is not
discretionary. Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 356 (1988). Thus, where diversity
jurisdiction exists and is pleaded in a case, it is not discretionary for a federal court to exercise
jurisdiction over that case. See Shaver v. F.W. Woolworth Co., 840 F.2d 1361, 1366 (7th Cir. 1988)
(noting “diversity jurisdiction is not a doctrine of discretion”). Since diversity jurisdiction was
raised and existed in Barnes I, this Court had no discretion to decline jurisdiction over Plaintiff’s
state law claims. However, my Recommendation and Judge Brimmer’s Order affirming the
Recommendation did not acknowledge diversity as an independent basis for subject matter
jurisdiction. Thus, Plaintiff had a legal basis to appeal the Court’s election to not exercise
supplemental jurisdiction but failed to do so. As recounted above, Plaintiff did not make any
arguments as to diversity jurisdiction in his Objection to my Recommendation, Case No. 21-cv-
01702-PAB-MEH, ECF 59, nor did he raise this issue in his appeal of Judge Brimmer’s Order to
the Tenth Circuit Court of Appeals.
While I could find no cases with facts identical to those before me, I also could find no
legal authority permitting Plaintiff to file a new lawsuit with claims that were or should have been
brought in Barnes I. Doing so would ultimately permit Plaintiff to pursue duplicative claims in
successive litigation.
Closely related to the doctrine of res judicata, the rule against claim splitting also requires
a plaintiff to assert all of his causes of action arising from a common set of facts in one lawsuit.
Katz v. Gerardi, 655 F.3d 1212, 1217 (10th Cir. 2011). See also Curtis v. Citibank, N.A., 226 F.3d
133, 138 (2d Cir. 2000) (“The rule against duplicative litigation is distinct from but related to the
doctrine of claim preclusion or res judicata.”). This rule serves the same interests as res judicata in
promoting judicial economy and shielding parties from vexatious concurrent or duplicative
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litigation. Katz, 655 F.3d at 1218. In the Tenth Circuit, the test for impermissible claim splitting
“is not whether there is finality of judgment, but whether the first suit, assuming it were final,
would preclude the second suit.” Id. (emphasis added); see also id. at 19 (“When we assess whether
duplicative claims have been asserted, we assume the finality of the first suit for the purposes of
the analysis.”). Regardless of whether Judge Brimmer’s dismissal of Plaintiff’s state law claims
without prejudice in Barnes I has preclusive effect under Shaver et al., assuming it is a final
judgment of those claims, Plaintiff’s state law claims in Barnes II would be precluded under the
res judicata analysis discussed above. Thus, the current lawsuit constitutes improper claim
splitting. Because Plaintiff has already filed a lawsuit over unpaid wages—suing the same party,
asserting the same rights, seeking the same relief, founded upon the same facts—he was required
to bring all theories pertinent thereto in one case. Accordingly, I recommend Defendant’s Motion
be granted as to any state law claims asserted in this case
Plaintiff’s remedy for the Court’s closing of Barnes I should have been to object to my
Recommendation to Judge Brimmer and then to the Tenth Circuit or, after the Tenth Circuit’s
decision on appeal, move to reopen Barnes I to proceed on the diversity jurisdiction claims. Indeed,
without commenting on the likelihood of success,4 Federal Rule of Civil Procedure 60 provides
the ability to ask a district court for relief from a final judgment for “mistake, inadvertence,
surprise, or excusable neglect,” or for “any other reason that justifies relief.” Fed. R. Civ. P.
60(b)(1), 60(b)(6). While motions under Rule 60(b) “must be made within a reasonable time,” Fed.
4 I note that both Chief Judge Brimmer and I addressed thoroughly Plaintiff’s fundamental
contention that because he was “on call” twenty-four hours a day, seven days a week, he should
be paid for all those hours, and we both found that this theory was contrary to the law on the facts
of this case. The Tenth Circuit affirmed that conclusion. Therefore, although I do not engage in a
Rule 12(b)(6) analysis regarding whether this outcome under the FLSA is determinative of
Plaintiff’s state wage claims, I have serious doubts about the continuing viability of any state law
claims.
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R. Civ. P. 60(c), Rule 60(b)(6) motions “are effectively subject to no time limit.” Myzer v. Bush,
750 F. App’x 644, 647 (10th Cir. 2018).
Lastly, I briefly address the arguments asserted in the Parties’ supplemental briefing. ECFs
33, 35. In its supplemental brief, Defendant concedes that Plaintiff asserted diversity jurisdiction
in Barnes I but argues he nonetheless waived it based on its omission from the Final Pretrial Order.
ECF 33 at 5. Defendant cites several cases discussing the general principle that “claims, issues,
defenses, or other theories of damages, not included in the pretrial order are waived,” and notes
the Final Pretrial Order’s language that the pleadings were merged into that document. ECF 33 at
2–4. I find this waiver argument is contrary to prevailing law. “When a requirement goes to
subject-matter jurisdiction, courts are obligated to consider sua sponte issues that the parties have
disclaimed or have not presented. . . . Subject-matter jurisdiction can never be waived or forfeited.”
Gonzalez v. Thaler, 565 U.S. 134, 141 (2012) (citation omitted).
Furthermore, I can only find that diversity jurisdiction was inadvertently omitted from the
Scheduling Order and the Final Pretrial Order, which would not justify a conclusion that Plaintiff
has waived anything. “Were we to apply issue preclusion to every case in which a plaintiff
inadvertently omitted an issue in a pretrial order, it would encourage needless inclusion and
litigation of issues . . . .” In re Zwanziger, 741 F.3d 74, 78 n.4 (10th Cir. 2014). Plaintiff’s pro se
status only heightens the force of this conclusion. At the very least, if Plaintiff sought at any time
in Barnes I to amend the Final Pretrial Order to add diversity jurisdiction as a basis for his state
law claims, I believe he would easily have met the standard of preventing manifest injustice to
permit the amendment. See Fed. R. Civ. P. 16(e) (“The court may modify the [pretrial] order . . .
only to prevent manifest injustice.”).
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CONCLUSION
For these reasons, I respectfully recommend that Defendant’s Motion for Judgment on the
Pleadings [filed March 26, 2024; ECF 19] be granted.5
Respectfully submit this 5th day of July, 2024, at Denver, Colorado.
BY THE COURT:
Michael E. Hegarty
Chief United States Magistrate Judge
5 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 findings and legal
conclusions 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)).
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