Webb v. Martin County et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Magistrate Judge Maritza Dominguez Braswell
Civil Action No. 24–cv–02705–NYW–MDB
WILLIAM JAROD WEBB,
Plaintiff,
v.
MARTIN COUNTY, FLORIDA,
WILLIAM SNYDER, Sheriff, Martin County, Florida, in his official capacity,
NICOLE J. WALTERS, Detective, individually,
JOSEPH DECKARD, Sergeant, individually, and
JOHN DOE(S), Martin County Deputies,
THOMAS BAKKEDAHL
KAITLIN LUSTGARTEN
DAVID J. LUCERO
JEFF CHOSTNER
JOHN BUDENSIEK
JON DOES, Pueblo County Deputies,
Defendants.
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
This matter is before the Court on pro se Plaintiff’s Motion to Stay Extradition ([“Motion
to Stay”], Doc. No. 6), Plaintiff’s Motion to Quash Florida Warrant ([“Motion to Quash”], Doc.
No. 7), Plaintiff’s “request that the Court review the decision to revoke my bond” found in his
Notice of Unwarranted Bond Revocation and DA’s Motion for Non-Testimonial Identification
Procedure (Doc. No. 25), and Plaintiff’s motions for an “emergency stay” of his extradition
([“emergency Motions”], Doc. Nos. 36; 37 (essentially reiterating Plaintiff’s requests for relief in
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the Motion to Stay and Motion to Quash)) (collectively the “Motions”). The Florida Defendants1
filed responses to the Motion to Stay (Doc. No. 28) and Motion to Quash (Doc. No. 26), to
which Plaintiff has replied (Doc. Nos. 29; 30).2 The Florida Defendants have not responded to
Plaintiff’s other motions, but the Court finds additional briefing is unnecessary to resolve them.
For the following reasons, the Court RECOMMENDS3 the Motions be DENIED.
SUMMARY FOR PRO SE PLAINTIFF
The Court is recommending that your Motions be denied because federal courts cannot
interfere with state criminal proceedings unless certain exceptions apply, and it appears no
exceptions apply here. Additionally, the Court denies your request for a hearing because it is not
necessary and would only serve to delay matters. This is only a summary of the Court’s
Recommendation. The full Recommendation is set forth below, including information about
your right to object to this Recommendation.
BACKGROUND
This action arises out of criminal proceedings against Plaintiff in Martin County, Florida.
(See generally Doc. No. 18.) Plaintiff appears to claim his Fourth, Fifth, Eighth, and Fourteenth
Amendment rights have been violated in connection with the proceedings. (Id. at 8, 10.)
1 The served Florida Defendants are Defendants Snyder, Walters, Deckard, and Martin County.
Plaintiff’s Amended Complaint also names unserved Defendants Bakkedahl, Lustgarten, and
Budensiek who appear connected to the State of Florida. (Doc. No. 18 at 6–7.)
2 Plaintiff also filed “supplements” to his replies at ECF 33 and 34.
3 While Plaintiff’s Motions are not titled as such, they are de facto requests for preliminary
injunctive relief. For this reason, the Court issues this decision as a recommendation rather than
an order. See Georgacarakos v. Wiley, 2008 WL 4216265, at *19 (D. Colo. Sept. 12, 2008)
(“[M]otions for preliminary injunction are generally treated as dispositive motions.”).
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Plaintiff was arrested by Pueblo County Sheriff’s Deputies on August 23, 2024, based on
a warrant for his arrest issued by Martin County. (Id. at 39.) Plaintiff is accused of grand theft in
connection with a transaction involving a yacht. (Id. at 8; Doc. No. 26 at 5.) In the affidavit
attached to the arrest warrant application, Martin County Sheriff’s deputies allege Plaintiff, while
working as an employee for Zwaans International Yachting Division, LLC (“Zwaans
International”), fraudulently retained nearly $300,000 in escrow funds from an uncompleted sale,
“with the intent to temporarily or permanently deprive” the victim of said funds. (Doc. No. 31-1
at 4.) The affidavit states Zwaans International is a “Yacht Brokerage located in Martin County
Florida and also has a listed address of incorporation in Ohio.” (Id. at 1.)
Plaintiff challenges his prosecution on multiple grounds. Most significantly, Plaintiff
appears to claim Martin County lacks jurisdiction over him because he was in Alabama, not
Florida during the incident in question. (Doc. No. 18 at 11.) Plaintiff says Martin County
Deputies made “materially false statements” in their warrant application affidavit, “falsely
claiming I was a Florida resident [during the incident in question]” who has since fled the state.
(Doc. No. 18 at 8.) Plaintiff also contends he is innocent of the charged crime and that the charge
lacks probable cause.4 (Id. at 9–14.)
4 Plaintiff also argues the Court should invalidate the “fugitive warrant” on the grounds that he
was a resident of Alabama—and not present in Florida—during the alleged offense and,
therefore, did not flee the State of Florida to avoid prosecution and is thus not a “fugitive.” (See,
e.g., Doc. No. 18 at 8, 9.) But the argument is a red herring. See Hanks v. City of Richmond, VA,
2015 WL 361355, at n.1 (D. Colo. Jan. 28, 2015) (“Plaintiff’s “narrow understanding of
‘fugitive’ has been long abandoned; whether or not Plaintiff’s presence in [the charging state] is
actually necessary for him to be a fugitive from [the charging state’s] justice will depend on the
nature of the charged crime.”). Colo. Rev. Stat. § 16-19-107 specifically allows for the
extradition of persons who are not present in the demanding state during the commission of the
crime. See Colo. Rev. Stat. § 16-19-107 (“The governor of this state may also surrender, on
demand of the executive authority of any other state, any person in this state charged in such
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In connection with these arguments, Plaintiff has moved to stay his pending extradition
from Pueblo County to Martin County (Doc. No. 6) and asks the Court to quash the outstanding
warrant. (Doc. No. 7.) Plaintiff also asks the Court to “declare Plaintiff is not a fugitive from
justice under the laws of the United States and that Florida lacks jurisdiction to extradite
Plaintiff.” (Doc. No. 6 at 3; Doc. No. 7 at 3; see also Doc. Nos. 36; 37.) In response, the Florida
Defendants argue the Court must deny the Motions as it is required to abstain from interfering
with the criminal proceedings under the Younger doctrine. (Doc. No. 26 at 2–4; Doc. No. 28 at
2–5.) The Florida Defendants further argue Plaintiff misrepresents the criminal affidavit as it did
not allege Plaintiff was physically located in Florida when the alleged crime was committed.
(Doc. No. 26 at 4–6; Doc. No. 28 at 5–7.) Moreover, the Florida Defendants argue Martin
County has jurisdiction over the criminal proceedings because Zwaans International’s principal
place of business during the alleged acts was Martin County and that Plaintiff’s probable cause
challenge and insistence of innocence are properly considered within the criminal proceedings.
(Id.)
Plaintiff has also requested that the Court “review the decision to revoke my bond,”
which resulted in Plaintiff being moved from home confinement back to the Pueblo County
Detention Center on October 31, 2024. (Doc. No. 25.)
other state ... with committing an act ... resulting in a crime in the state whose executive authority
is making the demand ... even though the accused was not in that state at the time of the
commission of the crime and has not fled therefrom”); see also Presley v. South Carolina, 2013
WL 6193361, at *5–6 (D.S.C. Nov. 26, 2013) (extraditing when underlying crime was
accomplished through interstate mail). Still, and to the extent relevant to the Court’s analysis
regarding Martin County’s jurisdiction over the criminal prosecution, the Court will address
Plaintiff’s contention that he was not physically present in Florida when the crime occurred.
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LEGAL STANDARD
I. 	Pro Se Plaintiff
Plaintiff is proceeding pro se. The Court, therefore, “review[s] his pleadings and other
papers liberally and hold[s] them to a less stringent standard than those drafted by
attorneys.” Trackwell v. United States, 472 F.3d 1242, 1243 (10th Cir. 2007) (citations
omitted); see Haines v. Kerner, 404 U.S. 519, 520–21 (1972) (holding the allegations of a pro
se complaint “to less stringent standards than formal pleadings drafted by lawyers”). This rule
applies to all proceedings involving pro se litigants. Hall v. Bellmon, 935 F.2d 1106, 1110 n.3
(10th Cir. 1991); see, e.g., Smith v. Crockett, 2022 WL 366914, at *3-6 (D. Colo. Jan. 20,
2022) (liberally construing pro se pleadings in review of a motion seeking preliminary injunctive
relief). However, Plaintiff’s pro se status does not vitiate his obligation to adhere to, and comply
with, “the same rules of procedure that govern other litigants.” Nielsen v. Price, 17 F.3d 1276,
1277 (10th Cir. 1994) (quoting Green v. Dorrell, 969 F.2d 915, 917 (10th Cir. 1992)); Ogden v.
San Juan Cnty., 32 F.3d 452, 455 (10th Cir. 1994) (stating that a pro se litigant must “comply
with the fundamental requirements of the Federal Rules of Civil and Appellate Procedure”).
Thus, while the Court makes “some allowances” for Plaintiff’s “failure to cite proper legal
authority, his confusion of various legal theories, his poor syntax and sentence structure, or his
unfamiliarity with the pleading requirements,” the Court will not “take on the responsibility of
serving as his attorney in constructing arguments and searching the record.” Garrett v. Selby
Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005) (quoting Hall, 935 F.2d at 1110)
(alteration omitted); see also Drake v. City of Fort Collins, 927 F.2d 1156, 1159 (10th Cir.
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1991) (the court may not “construct arguments or theories for the [pro se] plaintiff in the absence
of any discussion of those issues”).
II. 	Preliminary Injunctive Relief
Federal Rule of Civil Procedure 65 authorizes the Court to enter preliminary injunctions
and issue temporary restraining orders. Fed. R. Civ. P. 65(a)-(b). A preliminary injunction is an
“extraordinary” remedy; accordingly, the movant’s right to relief must be “clear and
unequivocal.” Aphosian v. Barr, 958 F.3d 969, 978 (10th Cir. 2020) (citation omitted). A party
seeking preliminary injunctive relief must show: (1) a likelihood of success on the merits; (2) a
threat of irreparable harm, which outweighs any harm to the nonmovant; and (3) that the
injunction would not adversely affect the public interest. N.M. Dep’t of Game & Fish v. U.S.
Dep’t of the Interior, 854 F.3d 1236, 1246 (10th Cir. 2017) (quoting Fish v. Kobach, 840 F.3d
710, 723 (10th Cir. 2016)).
ANALYSIS
I. 	Plaintiff’s Motion to Stay and Motion to Quash
The Court recommends denying the Motions to Stay and Quash because Plaintiff has not
shown a likelihood of success on the merits. See Meredith v. Oregon, 321 F.3d 807, 816 (9th Cir.
2003) (“[I]f a district court is required to abstain under Younger ..., then it has no authority to
rule on a party’s motion for a preliminary injunction.”).
The Younger abstention doctrine—which is based on principles of federalism, comity,
and respect for state functions—precludes federal courts from interfering with state court
proceedings, absent extraordinary circumstances. Younger v. Harris, 401 U.S. 37, 45 (1971);
Phelps v. Hamilton, 122 F.3d 885, 889 (10th Cir. 1997). Specifically, the Younger abstention
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doctrine requires a federal court to decline jurisdiction5 where: “(1) there is an ongoing state
criminal, civil, or administrative proceeding, (2) the state court provides an adequate forum to
hear the claims raised in the federal complaint, and (3) the state proceedings involve important
state interests, matters which traditionally look to state law for their resolution or implicate
separately articulated state policies.” Chapman v. Oklahoma, 472 F.3d 747, 749 (10th Cir.
2006) (citing Crown Point I, LLC v. Intermountain Rural Elec. Ass’n, 319 F.3d 1211, 1215 (10th
Cir. 2003)) (quotation marks omitted). “Younger abstention is non-discretionary; it must be
invoked once the three conditions are met, absent extraordinary circumstances.” Amanatullah v.
Colo. Bd. of Med. Exam’rs, 187 F.3d 1160, 1163 (10th Cir. 1999) (citing Seneca-Cayuga Tribe
of Okla. v. State of Okla. ex rel. Thompson, 874 F.2d 709, 711 (10th Cir. 1989)). The doctrine
applies regardless of whether the plaintiff seeks declaratory, injunctive, or monetary relief. D.L.
v. Unified Sch. Dist. No. 497, 392 F.3d 1223, 1228 (10th Cir. 2004).
The Court considers, first, whether there is an ongoing state proceeding of the type
Younger is intended to address. Chapman, 472 F.3d at 749. Three types of proceedings meet this
definition: (1) “ongoing state criminal prosecutions[;]” (2) “civil enforcement proceedings[;]”
and (3) “civil proceedings involving certain orders that are uniquely in furtherance of the state
5 Although the Younger abstention doctrine is often referred to as a “jurisdictional” issue,
technically speaking, “Younger is a doctrine of abstention.” D.A. Osguthorpe Family P’ship v.
ASC Utah, Inc., 705 F.3d 1223, 1230 n.8 (10th Cir. 2013) (“[T]he federal district court suggested
that the Younger doctrine is jurisdictional. This is not precisely correct.”) (internal citation
omitted). “Younger ‘neither provides a basis for nor destroys federal jurisdiction, [but] it does
determine when the federal courts must refrain from exercising jurisdiction.’” Chapman v.
Barcus, 372 F. App’x 899, 901 n.1 (10th Cir. 2010) (quoting Canatella v. California, 404 F.3d
1106, 1113 (9th Cir. 2005)). The “salient point” is that the Court must determine whether
Younger abstention is required before it may address the merits of the case. Goings v. Sumner
Cnty. Dist. Att’ys Office, 571 F. App’x 634, 639 n.4 (10th Cir. 2014).
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courts’ ability to perform their judicial functions.” Sprint Commc’ns, Inc. v. Jacobs, 571 U.S. 69,
78 (2013) (citations and internal quotation marks omitted). Here, the first prong is met because
Plaintiff’s injunctive requests seek to stop his ongoing prosecution in Martin County and thus
necessarily relate to “ongoing state criminal proceedings.”
The second prong in Younger is also satisfied because Plaintiff fails to demonstrate the
state criminal proceedings are an inadequate forum to hear his arguments. See Goings v. Sumner
Cnty. Dist. Attorney’s Off., 571 F. App’x 634, 638 (10th Cir. 2014) (noting that a plaintiff must
“clearly show that [he] could not have raised [his] claims during the [state court] proceedings in
order to defeat Younger’s second requirement” (internal quotation omitted)). Plaintiff challenges
the Martin County court’s jurisdiction over him and the probable cause for the charge against
him, but both issues can be, and routinely are, adequately considered by state trial courts. See
Pennzoil Co. v. Texaco, Inc., 481 U.S. 1, 15 (1987) (“[A] federal court should assume that state
procedures will afford an adequate remedy, in the absence of unambiguous authority to the
contrary.”); Goings v. Sumner Cnty. Dist. Attorney’s Off., 571 F. App’x 634, 638 (10th Cir.
2014) (noting that a plaintiff must “clearly show that [he] could not have raised [his] claims
during the [state court] proceedings in order to defeat Younger’s second requirement” (internal
quotation omitted)) see, e.g., Moses v. Weirich, 2016 WL 11480129, at *6 (W.D. Tenn. Jan. 19,
2016) (applying Younger abstention when the plaintiff had “not argued that she was denied the
opportunity to raise her due process challenges in the state proceedings”) report and
recommendation adopted, 2016 WL 755649 (W.D. Tenn. Feb. 25, 2016). Plaintiff does not
articulate any persuasive reason why that might not be the case, here.
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Finally, the third Younger prong is met because the Supreme Court “has recognized that
[a state’s] interest in administering their criminal justice systems free from federal interference is
one of the most powerful of the considerations that should influence a court considering
equitable types of relief.” Kelly v. Robinson, 479 U.S. 36, 49 (1986). Here, Plaintiff seeks action
that would directly interfere with—and indeed halt—criminal proceedings in Florida.
Accordingly, the Court finds the Younger abstention doctrine applies. See Hanks v. City
of Richmond, VA, 2015 WL 361355, at *1 (D. Colo. Jan. 28, 2015) (“Federal courts have
uniformly followed the edict of Younger and abstained from enjoining extradition proceedings—
whether the request is to enjoin the demanding state or to enjoin the asylum state.” (collecting
cases) (internal citations omitted)); see, e.g., Oritz v. Karnes, 2006 WL 3507068 (S.D. Ohio
2006) (finding injunctive relief relating to extradition proceedings “would interfere with an
ongoing criminal prosecution” and thus “[Younger] counsels against intervention”); Soto v.
Warden of Marianna FCI, 2022 WL 2670191 (N.D. Fla. June 16, 2022) (finding the same); Cole
v. St. Croix Cnty., Wisconsin, 2023 WL 4010657 (W.D. Wis. May 16, 2023) (finding the same);
Wells v. Mulholland, 2024 WL 3338323 (M.D. Ga. July 9, 2024) (finding the same).
But the Court does not end its analysis there. “Courts have recognized exceptions
to Younger abstention: the prosecution ‘was (1) commenced in bad faith or to harass, (2) based
on a flagrantly and patently unconstitutional statute, or (3) related to any other such
extraordinary circumstance creating a threat of ‘irreparable injury’ both great and immediate.’”
Peters v. United States, 2024 WL 3086003, at *4 (10th Cir. June 21, 2024) (quoting Phelps v.
Hamilton (“Phelps I”), 59 F.3d 1058, 1064 (10th Cir. 1995)). But “the exceptions
to Younger only provide for a very narrow gate for federal intervention” because of “respect[ ]
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[for] prosecutorial discretion and federalism.” Phelps v. Hamilton, 59 F.3d at 1064. “Thus, the
plaintiff bears a ‘heavy burden’ to show an exception applies.” Peters, 2024 WL 3086003
(quoting Phelps v. Hamilton (“Phelps II”), 122 F.3d 885, 889 (10th Cir. 1997)).
Here, Plaintiff does not argue his prosecution is based on a “flagrantly and patently
unconstitutional statute,” nor does he point to any extraordinary circumstance requiring the Court
to overlook Younger. 6 See Younger, 401 U.S. at 46. (recognizing that the fact that a defendant
will be forced to appear in state court on criminal charges, by itself, is insufficient to establish a
great and irreparable injury). However, Plaintiff does seem to argue his prosecution was
commenced in bad faith.
6 Plaintiff’s Amended Complaint does make certain unclear allegations of a conflict of interest
between the Martin County Sheriff’s Office and Plaintiff’s former counsel as well as allegations
about “nepotism” in the Florida State Attorney’s Office. (See Doc. No. 18 at 24–26.)
Specifically, Plaintiff alleges his former counsel, Joshua Deckard, declined to file a motion to
quash his arrest warrant in Martin County court after finding out his son, Defendant Deckard (a
Martin County Sheriff) was somehow involved in Plaintiff’s case. (Id. at 25.) Plaintiff also
alleges Defendant Lustgarten, the state attorney who “signed off” on Plaintiff’s arrest, “is
directly supervised by her husband,” creating “a troubling dynamic” in which Mr. Lustgarten “is
highly unlikely” to “evaluate [Defendant Lustgarten’s] performance objectively.” (Id.) Plaintiff
attaches exhibits showing complaints he has filed with the Florida State Bar and other entities
against his former attorneys and Defendant Lustgarten. (Id. at Exhibit 35–44.) Based on the
allegations, Plaintiff makes the sweeping claim he is subject to a “biased legal process” that
“favors connected insiders over impartial justice.” (Id. at 26.) The Court has reviewed Plaintiff’s
allegations, and though it takes them seriously, Plaintiff has failed to demonstrate any
“exceptional circumstance” warranting an exception to Younger. First, the Court notes the
complaints Plaintiff attaches to the Amended Complaint are just that—complaints. Plaintiff has
not provided any evidence that an entity with an ability to investigate the alleged problematic
conduct has uncovered any questionable activity that would impact Plaintiff’s criminal case.
Second, Plaintiff’s allegation that “nepotism” in the State Attorney’s Office impacted his
prosecution is highly speculative and unsupported, and any potential conflict between his former
defense counsel and the prosecution can be cured by hiring new counsel or seeking a public
defender.
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Courts have discussed three overarching reasons for applying the bad faith exception.
First, “whether [the prosecution] was frivolous or undertaken with no reasonably objective hope
of success,” second, “whether it was motivated by the defendant’s suspect class or in retaliation
for the defendant’s exercise of constitutional rights,” and third, “whether it was conducted in
such a way as to constitute harassment and an abuse of prosecutorial discretion, typically through
the unjustified and oppressive use of multiple prosecutions.” Phelps II, 122 F.3d at 889. Plaintiff
must set forth “more than mere allegations of bad faith or harassment” through “additional,
supplemental evidence.” Id. at 889–90.
In this case, Plaintiff has failed to show his prosecution is being undertaken in bad faith
or otherwise intended to harass him. First, the Court notes Plaintiff does not appear to allege the
prosecution is intended as retaliation for his exercise of constitutional rights or based on being a
part of a protected class nor that he has been subject to multiple prosecutions or otherwise been
harassed by the Florida Defendants. Instead, Plaintiff seems to argue the prosecution is frivolous
and cannot succeed. To this end, Plaintiff makes much of the fact that the Florida Defendants
have mistaken him for a Florida resident at the time of the incident in question when in fact,
Plaintiff lived in Alabama. (See, e.g., Doc. No. 6 at 1 (“Plaintiff was a resident of Alabama at the
time of the alleged crime, and there is substantial evidence ... that he was not present in Florida
during the time of the alleged offense.”).) But as the Florida Defendants point out, the Florida
criminal jurisdiction statute explicitly states a person can be located “outside the state” and still
be charged with the crime if “[t]he offense is committed wholly or partly within the state.” Here,
based on the County’s allegations the crime was allegedly committed, at least in part, in Florida
because Zwaans International, Plaintiff’s employer and the entity facilitating the yacht sale, has a
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principal place of business in Martin County.7 (Doc. No. 31-1 at 1); see F.S.A. § 910.005; see
also Rodriguez v. State, 329 So. 3d 145 (Fla. 4th DCA 2021) (court had jurisdiction over
defendant who sent text messages to victim while outside the state, as part of the crime had been
committed in Florida).
The Court takes no position on whether Martin County indeed has jurisdiction over
Plaintiff for this prosecution. However, the County’s assertion of jurisdiction is not frivolous,
and Plaintiff has failed to show the prosecution is being conducted in bad faith.8 Accordingly, no
exception to Younger abstention applies, and the Court recommends Plaintiff’s Motions at ECF
6, 7, 36, and 37 be denied.
***
The Court further recommends Plaintiff’s “request that the Court review the decision to
revoke my bond” be denied. (Doc. No. 25 at 2.) It is not entirely clear what relief Plaintiff seeks
by this request, but to the extent Plaintiff asks the Court to overturn or otherwise interfere with
Pueblo County’s decision to revoke his bond and return him to the Pueblo County Detention
Center, the Court finds this request suffers from the same Younger issues. See Callahan v.
Nguyen, 2022 WL 17821574, at *3 (S.D. Tex. Dec. 19, 2022) (“[T]o the extent that [the
plaintiff] askes this court to dismiss the state-court bond revocation proceedings, such an order
7 Moreover, despite Plaintiff’s characterization, the affidavit does not rely on Plaintiff having
been in Florida during the incident in question in order to establish jurisdiction. (See Doc. No.
31-1.)
8 Further, Plaintiff will be able to present arguments related to jurisdiction, probable cause, and
other related legal issues within the criminal proceeding itself, the most appropriate forum.
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‘is precisely the crux of what Younger forbids a federal court to do.’” (quoting Boyd v. Farrin,
575 F. App’x 517, 519 (5th Cir. 2014)).
CONCLUSION
For the foregoing reasons, the Court RECOMMENDS Plaintiff’s Motion to Stay (Doc.
No. 6), Motion to Quash (Doc. No. 7), “emergency” motions to stay (Doc. Nos. 36; 37), and
request that the Court review his bond revocation (Doc. No. 25) be DENIED. It is further
ORDERED that Plaintiff’s Notice to the Court and Request for Emergency Hearing
(Doc. No. 21) is DENIED.9
ADVISEMENT TO THE PARTIES
Within fourteen days after service of a copy of the Recommendation, any party may
serve and file written objections to the Magistrate Judge’s proposed findings and
recommendations with the Clerk of the United States District Court for the District of Colorado.
28 U.S.C. ' 636(b)(1); Fed. R. Civ. P. 72(b); In re Griego, 64 F.3d 580, 583 (10th Cir. 1995). A
general objection that does not put the district court on notice of the basis for the objection will
not preserve the objection for de novo review. “[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.” United States v. One Parcel of Real Prop.
Known As 2121 East 30th Street, Tulsa, Okla., 73 F.3d 1057, 1060 (10th Cir. 1996). Failure to
9 “[N]either Fed. R. Civ. P. 65(a) nor [Tenth Circuit] precedent require the district court to hold
an evidentiary hearing or oral argument before deciding a motion for a preliminary injunction.”
Northglenn Gunther Toody’s, LLC v. HQ8-10410-10450 Melody Lane LLC, 702 F. App’x 702,
705 (10th Cir. 2017). Here, the Court finds it can make this Recommendation without a hearing.
Additionally, Plaintiff has indicated a decision on this matter is urgent (see Doc. Nos. 36; 37),
and a hearing would only serve to delay matters. (See also Doc. No. 39 (saying the Florida
Defendants do not believe a hearing is necessary).)
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make timely objections may bar de novo review by the district judge of the magistrate judge’s
proposed findings and recommendations and will result in a waiver of the right to appeal from a
judgment of the district court based on the proposed findings and recommendations of the
magistrate judge. See Vega v. Suthers, 195 F.3d 573, 579-80 (10th Cir. 1999) (a district court’s
decision to review a magistrate judge’s recommendation de novo despite the lack of an objection
does not preclude application of the “firm waiver rule”); One Parcel of Real Prop., 73 F.3d at
1059-60 (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); Int’l Surplus Lines Ins. Co. v. Wyo. Coal Ref. Sys., Inc., 52 F.3d 901, 904 (10th Cir.
1995) (by failing to object to certain portions of the magistrate judge’s order, cross-claimant had
waived its right to appeal those portions of the ruling); Ayala v. United States, 980 F.2d 1342,
1352 (10th Cir. 1992) (by their failure to file objections, plaintiffs waived their right to appeal
the magistrate judge’s ruling). But see Morales-Fernandez v. INS, 418 F.3d 1116, 1122 (10th
Cir. 2005) (firm waiver rule does not apply when the interests of justice require review).
Dated this 20th day of November, 2024.
BY THE COURT:
___________________________
Maritza Dominguez Braswell
United States Magistrate Judge
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