Gallas v. USA

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 23–cv–00518–RMR–MDB
JENNA LYNN GALLAS, formerly known as Jenna Lynn Hubbs
Plaintiff,
v.
USA,
Defendant.
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Magistrate Judge Maritza Dominguez Braswell
Before the Court is Defendant United States of America’s Motion to Dismiss.
([“Motion”], Doc. No. 13.) Plaintiff Jenna Lynn Gallas has responded, and Defendant has
replied. ([“Response”], Doc. No. 25; [“Reply”], Doc. No. 29.) Having carefully considered the
issues, the Court RECOMMENDS that the Motion be DENIED.
BACKGROUND
On February 27, 2023, Plaintiff filed this medical negligence lawsuit against Defendant,
alleging medical providers at an Army Community Hospital failed to diagnose her with multiple
sclerosis (“MS”). (Doc. No. 1 at ¶¶ 13-41). From 2013 through 2017, hospital medical personnel,
primarily neurologist Dr. Langford and Nurse Sullivan-Boramis, provided Plaintiff with medical
care. (Id. at ¶ 14.)
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In 2013, Plaintiff initially visited the Hospital for “leg numbness and tingling.” (Id.) But
despite numerous visits and exams, including CT scans and lab tests, Plaintiff’s condition
deteriorated. (Id. at ¶¶ 14-23.)
In May 2014, Plaintiff complained of blurry vision and neck numbness to Nurse Sullivan-
Boramis. (Id. at ¶ 23.) Nurse Sullivan-Boramis ordered an MRI for “MS or other etiology” and
informed Plaintiff that the MRI results were negative. (Id. at ¶¶ 24-26 (emphasis in original).) In
the visit notes, the nurse wrote that “symptoms of parathesias [sic] may be related to MS, will
need to rule out via MRI, will also check c-spine for any neurological findings that may
contribute to symptoms[.]” (Id. at ¶ 23 (emphasis in original).) Additionally, the MRI notes
indicated that if concerns persisted, she “may consider repeat MRI in 6 months to confirm either
stability or resolution.” (Id. at ¶ 24-25.) In June 2014, Dr. Langford treated Plaintiff after her
symptoms continued to worsen. (Id. at ¶¶ 30-31.) After assessing that Plaintiff’s symptoms may
result from migraines and anxiety, Dr. Langford prescribed migraine medication. (Id.) On
August 5, 2014, Plaintiff had her final visit with Dr. Langford, where Plaintiff indicated she
“responded well” to the prescribed migraine medication but experienced “‘mental cloudiness’
and wished to wean off the medication.” (Id. at ¶¶ 34-36.) Dr. Langford—noting normal lab and
MRI results from the June visit—advised Plaintiff to continue taking the medication but
recommended consulting her primary care provider if she had worsened symptoms or new
concerns. (Id. at ¶ 36.) Plaintiff also alleges that sometime in 2014, while she was still a patient
at the Hospital, Defendant provided her with incomplete medical records which “specifically cut
off the ‘possible MS’ note” in the May 2014 records. (Id. at ¶ 52; see also Doc. No. 25 at 8.)
In 2015, a new Hospital primary care provider treated Plaintiff for “extreme eczema on
her hands and chronic left knee pain that had persisted over seven (7) years[,]” but “no medical
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provider employed by Defendant ever returned to the possible MRI follow-up[.]” (Id. at ¶¶ 37-
38.) Then, from “2015 through the fall of 2017[,]” due to the emotional separation and
subsequent divorce from her active-duty Army husband, Plaintiff “could no longer receive
treatment through the Army/Tricare system.” (Id. at ¶ 39.)
In December 2017, Plaintiff sought medical help for increasing episodic eye pain, visiting
a civilian urgent care clinic and scheduling an optometry appointment, but received no
“definitive diagnosis for the eye pain problems.” (Doc. No. 1 at ¶ 42.)
In May 2018, after experiencing double vision while driving, Plaintiff sought treatment
from civilian medical providers. (Id. at ¶¶ 42-43.) On June 1, 2018, Plaintiff had an MRI which
“was highly suggestive of Multiple Sclerosis[.]” (Id. at ¶ 46.) Shortly after, Plaintiff saw her
primary care provider and a referred neurologist who confirmed the MS diagnosis. (Id. at ¶¶ 47-
48.) In July 2018, Plaintiff obtained her complete medical records from the Army Community
Hospital. (Id. at ¶ 52.)
On May 8, 2020, Plaintiff submitted an administrative claim to the Army under the
Federal Torts Claims Act (“FTCA”). (Doc. No. 1 at ¶ 9.) After no response from the Army,
Plaintiff initiated this lawsuit on February 27, 2023.
Defendant filed the instant Motion, arguing the lawsuit should be dismissed because: (1)
the Court lacks subject matter jurisdiction under the FTCA due to Colorado’s three-year statute
of repose; and (2) none of the exceptions to Colorado’s repose statute apply. (Doc. No. 13 at 1-
15.) Plaintiff responds that the FTCA preempts Colorado’s statute of repose, and even if the
statute applies, her claim falls under the Impossible-to-discover or Concealment exceptions to
the repose statute. (Doc. No. 25 at 2-3.)
LEGAL STANDARDS
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I. Rule 12(b)(1)
Federal Rule of Civil Procedure Rule 12(b)(1) allows a court to dismiss a complaint for
lack of subject matter jurisdiction. Fed. R. Civ. P. 12(b)(1). Dismissal under Rule 12(b)(1) is not
a judgment on the merits of a plaintiff’s case but a determination that the court lacks authority to
adjudicate the matter, attacking the existence of jurisdiction rather than the complaint’s
allegations. Creek Red Nation, LLC v. Jeffco Midget Football Ass’n., Inc., 175 F. Supp. 3d 1290,
1293 (D. Colo. 2016). A court lacking jurisdiction “must dismiss the cause at any stage of the
proceedings in which it becomes apparent that jurisdiction is lacking[,]” Caballero v. Fuerzas
Armadas Revolucionarias de Colombia, 945 F.3d 1270, 1273 (10th Cir. 2019) (quotation
omitted), and the dismissal is without prejudice. Brereton v. Bountiful City Corp., 434 F.3d 1213,
1218 (10th Cir. 2006).
Challenges to subject matter jurisdiction may take two forms—a facial attack or a factual
attack—each with distinct analytical frameworks. United States v. Rodriguez-Aguirre, 264 F.3d
1195, 1203 (10th Cir. 2001). A facial challenge centers on the sufficiency of the allegations in
the complaint. Id. In resolving a facial challenge, “the district court must accept the allegations in
the complaint as true.” Id. Conversely, in a factual challenge, “a party may go beyond allegations
contained in the complaint and challenge the facts upon which subject matter depends.” Id. In
addressing a factual challenge to subject matter jurisdiction, “the court does not presume the
truthfulness of the complaint’s factual allegations, but has wide discretion to allow affidavits,
other documents, and a limited evidentiary hearing to resolve disputed jurisdictional facts under
Rule 12(b)(1).” Id. (citation and quotations omitted); see also Stuart v. Colorado Interstate Gas
Co., 271 F.3d 1221, 1225 (10th Cir. 2001) (“a court’s reference to evidence outside the pleadings
does not convert the motion into a Rule 56 motion”). The burden of establishing subject matter
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jurisdiction lies with the party asserting it. Merida Delgado v. Gonzales, 428 F.3d 916, 919 (10th
Cir. 2005).
II. FTCA
Generally, the United States is immune from suit and must consent to being sued before a
court can have subject matter jurisdiction. See U.S. v. Mitchell, 463 U.S. 206, 212 (1983) (“It is
axiomatic that the United States may not be sued without its consent and that the existence of
consent is a prerequisite for jurisdiction.”). But, under the FTCA, the government waives
sovereign immunity for state law tort claims, allowing suits for money damages arising from the
negligent or wrongful acts of government employees. See Garling v. U.S. Env’t. Prot. Agency,
849 F.3d 1289, 1294 (10th Cir. 2017). Specifically, under the FTCA, the United States may be
sued
for money damages . . . for injury or loss of property, or personal injury or death
caused by the negligent or wrongful act or omission of any employee of the
Government while acting within the scope of his office or employment, under
circumstances where the United States, if a private person, would be liable to the
claimant in accordance with the law of the place where the act or omission
occurred.
28 U.S.C. § 1346(b)(1) (emphasis added). Thus, the sovereign immunity waiver applies only
when the claimant would have a viable claim against a private party under the laws of the subject
state, here, Colorado. “Put another way, the FTCA incorporates the substantive law of the state
where the tortious act or omission occurred.” Augutis v. U.S., 732 F.3d 749, 752 (7th Cir. 2013)
(quotation omitted).
The Tenth Circuit has provided three guiding principles for determining whether there
has been a waiver under the FTCA: (1) strict construction of the waiver’s scope, in favor of the
sovereign; (2) narrow construction of exceptions to the FTCA; and (3) the burden is on the suing
party to prove waiver. Ohlsen v. U.S., 998 F.3d 1143, 1154 (10th Cir. 2021). Although a court
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should never “narrow the waiver that Congress intended,” U.S. v. Kubrick, 444 U.S. 111, 118
(1979), “[a]ny ambiguities in the statutory language are to be construed in favor of immunity, so
that the Government’s consent to be sued is never enlarged beyond what a fair reading of the text
requires.” FAA v. Cooper, 566 U.S. 284, 290 (2012) (internal quotation marks and citation
omitted).
III. Colorado’s Statute of Repose
A statute of repose is a substantive right, in favor of a defendant, to be free from liability.
See Nat’l Credit Union Admin. Bd. v. Barclays Cap. Inc., 785 F.3d 387, 393 (10th Cir. 2015). It
extinguishes the right to bring a cause of action if the action is not brought by a specified
deadline. CTS Corp. v. Waldburger, 573 U.S. 1, 9-10 (2014); see also Hogan v. Pilgrim’s Pride
Corp., 73 F.4th 1150, 1161 n.11 (10th Cir. 2023). Colorado’s statute of repose bars a cause of
action “brought more than three years after the act or omission which gave rise to the action.”
C.R.S. § 13-80-102.5(1).
The three-year repose period is subject to several exceptions, including subsections (a)
the concealment exception and (c) the impossible-to-discover exception. C.R.S. § 13-80-
102.5(3). As to concealment, the action is viable “[i]f the act or omission which gave rise to the
cause of action was knowingly concealed by the person committing such act or omission,” and
the lawsuit is “instituted within two years after the person bringing the action discovered, or in
the exercise of reasonable diligence and concern should have discovered, the act or omission[.]”
C.R.S. § 13-80-102.5(3)(a). Knowing concealment can be demonstrated by showing that the
defendant intentionally failed to disclose material information and that such failure to disclose
somehow “impeded . . . discovery of th[e] negligence.” See Smith v. Boyett, 908 P.2d 508, 513
(Colo. 1995); see also Rupnow v. Panio, No. 16-cv-0813-WJM-MEH, 2017 WL 818664, at *4.
(D. Colo. Mar. 2, 2017). The impossible-to-discover exception provides that the three-year
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repose period does not apply if “both the physical injury and its cause are not known or could not
have been known by the exercise of reasonable diligence.” C.R.S. § 13-80-102.5(3)(c).
ANALYSIS
The first issue in this Motion is whether the statute of repose applies or is instead
preempted by the FTCA. The second issue—presuming the statute of repose applies—is whether
the allegations demonstrate Plaintiff can satisfy an exception to the statute of repose. The Court
addresses each issue in turn.
I. Does the FTCA preempt Colorado’s Statute of Repose?
As an initial matter, the Court acknowledges the Tenth Circuit has not expressly
addressed whether a state statute of repose can preclude an otherwise timely FTCA claim, and
there is a division among courts on this issue. See Tuck v. U.S., No. 21-cv-02889-NYW, 2022
WL 833367, at *4 (D. Colo. Mar. 21, 2022) (collecting cases and acknowledging the split). The
Court also recognizes the importance of striking a balance between Colorado’s state regulatory
interests in the repose period, and the overarching federal interests implicated by the FTCA.
Recognizing these interests and the tension in authority, this Court recently conducted a
careful analysis of this issue and ultimately concluded that Colorado’s statute of repose is not
preempted by the FTCA. See Lewis v. U.S., No. 22-cv-01834, 2023 WL 4306375, at *5 (D. Colo.
Apr. 10, 2023) (holding “compliance with the state’s substantive law—here, the statute of
repose—is a condition precedent to the FTCA’s waiver[,]” and therefore the statute of repose is
not preempted by the FTCA). In so holding, the Court respectfully departed from the conclusion
reached by the Honorable Nina Y. Wang in Tuck, where she determined the FTCA did indeed
preempt Colorado’s statute of repose. See Tuck, 2022 WL 833367 at *8. Although a departure
from Tuck, this Court’s conclusion was anchored in the Tenth Circuit’s guiding principle of strict
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construction in favor of the sovereign, as well as the claim-extinguishing effect of the statute of
repose. See Nat’l Credit Union Admin. Bd., 785 F.3d at 393; Augutis, 732 F.3d at 754 (finding
plaintiff “allowed the statute of repose’s fouryear [sic] clock to expire, extinguishing his nascent
federal claim”). The claim-extinguishing effect was particularly critical to the Court’s analysis in
Lewis, because if a claim is completely extinguished, a private person cannot be liable under “the
law of the place where the act or omission occurred[,]” which means there can be no waiver of
immunity. § 1346(b)(1); see Lewis, 2023 WL 4306375, at *5. To hold otherwise would place the
government in a drastically different position than private parties, allowing a claim filed outside
of the repose period to proceed against the government, but not against a private person.
With great respect for Judge Wang’s very thoughtful and thorough analysis in Tuck, the
Court reaches the same conclusion here as it did Lewis. Under the FTCA, state law is
incorporated to determine if the United States has waived sovereign immunity and can be found
liable. See § 1346(b)(1) (“the law of the place where the act or omission occurred” is used to
determine whether “the United States, if a private person, would be liable to the claimant”). In
this case, the applicable state law is Colorado’s statute of repose, a substantive law that defines
when a cause of action no longer exists. See Nat’l Credit Union Admin. Bd., 785 F.3d at 393
(finding a statute of repose extinguishes a cause of action altogether, while a statute of
limitations simply creates a defense to a claim). Because Colorado’s statute of repose
extinguishes a claim when the subject act or omission occurred more than three years before a
plaintiff files her complaint, and because here the allegedly negligent act occurred in Colorado
more than three years before Plaintiff filed her complaint, Plaintiff’s claim was extinguished
prior to the filing of this case and a waiver therefore never occurred (unless she can satisfy one of
the exceptions under the statute of repose). This is because “the statute of repose does not layer
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on top of, or conflict with, the FTCA’s timeline. Instead, the statute of repose applies to
determine whether the FTCA waiver is triggered at all, operating as a prerequisite to the FTCA’s
waiver[,]” rather than a separate state law preempted by the FTCA. Lewis, 2023 WL 4306375, at
*5.1
II. Do any exceptions apply?
Here, Plaintiff contends two of the exceptions under Colorado’s Statute of Repose apply.
The Court addresses each in turn.
A. Impossible-to-discover exception
As set forth above, under the impossible-to-discover exception, the statute of repose does
not apply if both the injury and its cause are not known or discoverable through reasonable
diligence, within three years after the negligent act occurred. C.R.S. § 13-80-102.5(3)(c).
The parties primarily dispute the date the statute of repose began to run and in turn,
whether Plaintiff discovered the injury and its cause within the three-year statute of repose
period. Plaintiff alleges the statute of repose began to run on August 5, 2014—the date of her last
visit with Dr. Langford—so the repose period expired on August 5, 2017. (Doc. No. 25 at 13.)
Plaintiff also asserts that because she did not discover—and, in the exercise of reasonable
diligence, could not have discovered—her injury and its cause until May 23, 2018 (the date she
began developing double-vision), the exception applies. (Id. at 12; Doc. No. 1 at ¶ 43.)
By contrast, Defendant contends the repose period began on December 31, 2015—the
date of Plaintiff’s final visit to the Hospital—so the repose period expired on December 31,
1 This conclusion aligns with established Supreme Court precedent, which dictates that when
faced with statutory ambiguities (meaning there is a plausible interpretation that does not
authorize money damages against the government) courts should construe the language in favor
of immunity. See Cooper, 566 U.S. at 287, 90 (“Any ambiguities in the statutory language are to
be construed in favor of immunity,” and “[a]mbiguity exists if there is a plausible interpretation
of the statute that would not authorize money damages against the Government.”).
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2018. (Doc. No. 13 at 12.) According to Defendant, because Plaintiff knew about her injury
within the repose period (by June 1, 2018—the date “an MRI ‘was highly suggestive of Multiple
Sclerosis’”), the impossible-to-discovery exception is inapplicable. (Id. at 13 (citing (Doc. No. 1
at ¶ 4.) In essence, Defendant makes a continuing course of treatment argument,2 arguing that
because the Complaint indicates Plaintiff received care in “2014 and 2015” and “suggests that all
of her Army medical providers acted wrongfully in not following up on their colleagues’ early
suspicions of MS[,]” the alleged negligent act concerns Hospital treatment, as opposed to a
single doctor’s treatment. (Doc. No. 29 at 9; Doc. No. 1 at ¶ 38.)
In considering whether the statutory exception applies, the Court must first determine the
start of the repose period. And in determining whether the continuous course of treatment
doctrine stretches the start of the repose period, the Court must determine what constitutes
treatment. See Chrisco v. Raemisch, 374 F. Supp. 3d 1093, 1097 n. 4 (D. Colo. 2019) (Under the
“continuous course of treatment doctrine . . . the three-year statute of repose in Colo. Rev. Stat. §
13-80-102.5(1) does not begin to run until ‘the final act constituting the treatment.’”) (quotation
Comstock v. Collier, 737 P.2d 845, 848 (Colo. 1987). The Court does not agree with Defendant’s
interpretation of treatment. Although it is true that Plaintiff treated with other providers at the
Hospital after she treated with Dr. Langford, that subsequent treatment did not pertain to any of
her neurological symptoms. (See Doc. No. 1 at ¶¶ 37-38.) Indeed, the Complaint clearly states
2 Generally, it is plaintiffs that use the continuous course of treatment doctrine to extend filing
deadlines. However, in this case—and because the question is whether the discovery occurred
inside or outside the statute of repose period for purposes of applying an exception—it is
Defendant that seeks to avail itself of the doctrine. Additionally, there is no reason the doctrine
cannot be applied to a statute of repose argument (as opposed to the more common statute of
limitations arguments). See Barajas v. Weiss, No. 16-cv-02186-RBJ, 2018 WL 684757, at *3 (D.
Colo. Feb. 2, 2018) (where plaintiff argued that “under the continuous treatment doctrine, the
statute of repose clock did not begin to run until the last day on which she received treatment for
MS”).
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the treatment after August 5, 2014, was for Plaintiff’s “primary diagnosis of Dyshidrotic
Eczema” and “chronic left knee pain[.]” (Id.) To be fair, according to the Complaint, notes from
these visits list Plaintiff’s “Neurological conditions, Persistent Migraine Aura, Anxiety, Tingling
(paresthesia), [and] Numbness of Both Legs[.]” (Id. at ¶ 37.) But merely noting Plaintiff’s history
does not support that Plaintiff was actually treated for neurological symptoms. Therefore, the
Court concludes the later treatments do not constitute a continuation of treatment for Plaintiff’s
neurological conditions, and the “final act constituting the treatment” was on August 5, 2014,
when Plaintiff last saw Dr. Langford for her neurological conditions. Chrisco, 374 F. Supp. 3d at
1097 n. 4; see also Moran v. Benson, 100 Mass. App. Ct. 744, 747 (2022) (continued
prescription of migraine medication did not constitute continuing treatment, instead negligent act
occurred when defendants failed to inform and treat plaintiff for MS). Thus, the negligent act
occurred on August 5, 2014, and the repose period expired on August 5, 2017.
Additionally, the Court rejects Defendant’s argument that Plaintiff could have—during
the applicable period—known about her injury and its cause through the exercise of reasonable
diligence. See C.R.S. § 13-80-102.5(3)(c). Determining what a reasonable person would or
would not have done, or the precise date on which they should have known about an injury and
its cause, calls for factual determinations that cannot be made at this stage. See Hodges v. Sunrise
Senior Living Mgmt., Inc., et al., No. 22-2201, 2023 WL 2163887, at *2 (E.D. Pa. Feb. 21, 2023)
(quoting Knopick v. Connelly, 639 F.3d 600, 611 (3d Cir. 2011) (“‘[t]he point of time at which
the injured party should reasonably be aware that [they] ha[ve] suffered an injury is generally an
issue of fact to be determined by the jury.”). Indeed, Defendant’s arguments about what Plaintiff
could have known are in tension with Plaintiff’s own account. Defendant argues Plaintiff
suffered from symptoms that a reasonable person would have investigated further, including
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“‘dizziness, headache, vision changes, left side numbness, tingling, left arm tremors,
disequilibrium, slurred speech, . . . blurred vision, and weakness[.]” (Doc. No. 29 at 9.) But
Plaintiff’s allegations indicate that she “learned to live with her ongoing symptoms,” (Doc. No. 1
at 2), and that it was not until 2017 and 2018 that Plaintiff experienced worsening symptoms of
“increasing episodic pain” and “frightening double vision[.]” (Id. at ¶¶ 42-43.) Because some
factual development is necessary to determine when the injury and its cause were known or
discoverable through reasonable diligence, the Court cannot find—at this time—that the
exception is inapplicable as a matter of law. Thus, the Court must recommend against dismissal
at this stage.
B. Concealment Exception
Because the impossible-to-discover exception might apply, dismissal is not appropriate at
this stage and the Court need not reach the alternative exception. However, for completeness, the
Court considers whether the concealment exception might also apply.
For the concealment exception to apply, Plaintiff must show Defendant knowingly
concealed or omitted material information about her MS and that she initiated the action within
two years after discovering the omission. See C.R.S. § 13-80-102.5(3)(a). Plaintiff argues
Defendant gave her incomplete medical records that concealed or omitted information about her
providers’ suspicions of MS. (Doc No. 25 at 15.) Defendant does not dispute this. (See Doc. No.
29 at 8.) Instead, Defendant argues Plaintiff failed to allege anyone “knowingly omitted” the
information, and thus, the concealment exception does not apply. (Id. (emphasis added).)
The Court agrees with Plaintiff that she has at least plausibly alleged Defendant
“knowingly concealed” facts from her. Although Defendant rightly notes that no allegations
show Defendant or any medical provider affirmatively deleted the notes with an intent to hide
information, (Doc. No. 29 at 8), Colorado law does not require “an affirmative act intended to
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make information inaccessible[.]” Rupnow, 2017 WL 818664, at *4 (holding that for purposes of
both the statute of limitations and statute of repose, plaintiff can show knowing concealment
through a failure to disclose material information.). Under Colorado’s more liberal approach to
“concealment,” a plaintiff merely has to show “the defendant intentionally failed to disclose
material information and that such failure to disclose somehow ‘impeded . . . discovery of th[e]
negligence.’” Id. (quoting Smith, 908 P.2d at 513). Here, Plaintiff alleges Defendant was
intentional in omitting the notes, (Doc. No. 1 at ¶ 52 (alleging Defendant “specifically cut off
‘possible MS’ note in the May 27, 2014 records”)), and she alleges the omission impeded her
discovery of Defendant’s negligence. (Id. at 2.) Of course, the Court does not consider whether
these allegations are supportable, nor does it determine whether the exception actually applies.
But at this stage in the proceedings the allegations concerning this exception are just enough to
survive the Motion.3
CONCLUSION
For the foregoing reasons, the Court RECOMMENDS that Defendant’s Motion to
Dismiss be DENIED.
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
3 Assuming this exception applies, the claim was adequately brought within two years of
Plaintiff discovering Defendant’s omission. See C.R.S. § 13-20-102.5(3)(a). Plaintiff alleges she
received a complete copy of her medical records in July 2018, and she filed her administrative
claim within two years of that date, on May 8, 2020. (Doc. No. 1 at ¶ 52).
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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.” U.S. v. One Parcel of Real Prop. Known As
2121 East 30th Street, Tulsa, Okla., 73 F.3d 1057, 1060 (10th Cir. 1996). Failure to 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. U.S., 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: December 28, 2023.
BY THE COURT:
___________________________
Maritza Dominguez Braswell
United States Magistrate Judge
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