Canary v. Adams et al

THE UNITED STATES DISTRICT COURT
DISTRICT OF UTAH
ADRIANN CANARY,
Plaintiff,
v.
DARIN ADAMS, et al.,
Defendant.
MEMORANDUM DECISION
AND ORDER DENYING MOTION
FOR RECONSIDERATION
Case No. 4:25-cv-00077-DN-PK
District Judge David Nuffer
On October 24, 2025, Plaintiff Adriann Canary filed Motion for Reconsideration or to
Vacate Memorandum Decision and Order Adopting Report and Recommendations (“Motion”).1
Ms. Canary argues that because she timely filed a Motion to Extend Time to Submit Discovery
Materials (“Motion for Extension of Time”) that she “was denied the opportunity to submit
objections to the R & R.”2
All defendants filed oppositions.3 Defendants Darin Adams and Matthew Topham
opposed the Motion because “[t]he actual motion filed by Plaintiff on October 8, 2025 was titled
as ‘Plaintiff’s Motion to Extend Time to Submit Discovery.’”4 Defendant Chad Dotson similarly
1 Motion for Reconsideration or to Vacate Memorandum Decision and Order Adopting Report and
Recommendations (“Motion”), docket no. 34, filed October 24, 2025.
2 Id. at 1.
3 Defendants Darin Adams and Matthew Topham Memorandum in Opposition to Plaintiff’s Motion for
Reconsideration (“Adams & Topham’s Opposition”), docket no. 36, filed November 6, 2025; Defendant Chad
Dotson’s Response in Opposition to Plaintiff’s Motion for Reconsideration (“Dotson’s Opposition”), docket no. 39,
filed November 7, 2025.
4 Adams & Topham’s Opposition at 1-2.
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opposed the Motion stating “[c]ontrary to Plaintiff’s assertions, the docket shows she has not
filed a motion seeking additional time to object to the R&R.”5
A review of the Motion, respective oppositions, docket, and the applicable case law has
been completed. For the reasons stated below the Motion is DENIED.
1 	BACKGROUND
On September 26, 2025, Magistrate Judge Paul Kohler filed a Report & Recommendation
(“R & R”) recommending granting the Motions to Dismiss filed by Defendants Darin Adams and
Matthew Topham, and Chad Dotson, respectively.6 On October 8, 2025, Ms. Canary filed a
document entitled “Plaintiff’s Motion to Extend Time to Submit Discovery Materials” (“Motion
for Extension of Time”).7 The deadline to object to the R & R was October 10, 2025. Neither
party filed an objection to the R & R by the deadline.8 With no objections, the R & R was
adopted in full.9 On October 24, 2025, Judge Kohler denied the Motion for Extension of Time
stating “there is no scheduling order in place and, therefore, there is no current deadline to
complete discovery. As such, there is no discovery deadline to extend.”10 On the same day, Ms.
Canary filed the Motion.
5 Defendant Chad Dotson’s Response in Opposition to Plaintiff’s Motion for Reconsideration (“Dotson’s
Opposition”), docket no. 39, filed November 7, 2025.
6 Report & Recommendation (“R & R”), docket no. 29, filed September 26, 2025.
7 Motion to Extend Time to Submit Discovery Materials (“Motion for Extension of Time”), docket no. 30, filed
October 8, 2025.
8 See generally docket.
9 Memorandum Decision and Order Adopting Report and Recommendation, docket no. 31, filed October 15, 2025.
10 Order Denying Without Prejudice Plaintiff's Motion For Extension Of Time To Complete Discovery, docket no.
32, filed October 24, 2025.
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2 	DISCUSSION
“Generally, a motion for reconsideration, not recognized by the Federal Rules of Civil
Procedure, may be construed in one of two ways: if filed within 10 days of the district court's
entry of judgment, it is treated as a motion to alter or amend the judgment under Rule 59(e); if
filed more than 10 days after entry of judgment, it is treated as a motion for relief from judgment
under Rule 60(b).”11 “In addition, every order short of a final decree is subject to reopening at
the discretion of the district judge.”12
Ms. Canary contends that the Order Adopting the R & R should be vacated because she
timely filed her Motion for Extension of Time for discovery before the October 10, 2025,
deadline.13 In effect, she argues that her extension request should have covered the time to object
to the R & R as well. Defendants counter on two grounds: (1) her extension request concerned
discovery deadlines, not objections to the R&R14; and (2) they did not oppose the motion
because they understood it was limited to discovery.15
Defendants are correct that the “Motion is premised on the mistaken belief that [Ms.
Canary] filed a motion requesting additional time to object to the [R & R] before the Court
entered its order adopting the R & R.”16 In the Motion for Extension of Time, Ms. Canary
specifically requests “an extension of forty-five (45) days from the current discovery deadline to
ensure that all relevant and material evidence is collected and submitted to the Court and
11 Price v. Philpot, 420 F.3d 1158, 1167 n.9 (10th Cir. 2005) (internal quotations and citations omitted).
12 Id. (internal quotations omitted).
13 Motion at 1.
14 Adams & Topham’s Opposition at 2; Doston’s Opposition at 2.
15 Adams & Topham’s Opposition at 2.
16 Dotson’s Opposition at 2.
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Defendants.”17 Defendants are right; there is no language in the Motion for Extension of Time
that specifically requests an extension to the objection deadline, as the entire filing focuses on
requesting an extension to discovery deadlines.
Furthermore, because Ms. Canary’s Motion for Extension of Time did not provide
specific objections to Judge Kohler’s R & R, or even request an extension of time to object, the
cases she cites are distinguishable.18 Ms. Canary cites United States v. One Parcel Of Real
Property, for the premise that “[t]he ability to object is a substantive procedural right —not a
mere formality.”19 A review of One Parcel, shows the Tenth Circuit actually held that a party
“waive[s] appellate review by failing to file specific objections to the magistrate judge's report
and recommendation.” The Tenth Circuit’s holding in One Parcel, supports the denial of Ms.
Canary’s Motion for the same reasons: Ms. Canary has failed to make a timely objection to
Judge Kohler’s R & R, or even properly request an extension of time.20
Finally, while it is true that “the court will liberally construe [a pro se Plaintiff’s] filings
because she is appearing pro se, the court will not act as her advocate.” 21 The Tenth Circuit has
acknowledged the many “difficulties [] pro se parties face in litigating cases. But pro se litigants
must prosecute their cases and follow the court’s rules.” 22 Thus, there are limits to how far a pro
se party’s filings can be liberally construed.
17 Motion for Extension of Time at 2.
18 Motion at 2-3 (citing Servants of Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000); Phelps v. Hamilton,
122 F.3d 1309, 1324 (10th Cir. 1997)).
19 Motion at 3 (citing United States v. One Parcel, 73 F.3d 1057, 1061 (10th Cir. 1996)).
20 See generally docket.
21 True v. Delta Air Lines, Inc., No. 2:21-CV-00433, 2024 WL 1913688, at *4 (D. Utah Apr. 4, 2024), report and
recommendation adopted, No. 2:21-CV-433-DAK-DBP, 2024 WL 1912449 (D. Utah May 1, 2024).
22 Tunson-Harrington v. Adams Cnty. Sheriff, No. 23-1103, 2023 WL 5927132, at *2 (10th Cir. Sept. 12, 2023).
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Reading a Motion for Extension of Time to discovery deadlines as a motion to extend the
R & R objection deadline would push liberal construction too far. It is unusual for Ms. Canary to
seek more time for discovery in a case that has not reached that stage, but that is the motion Ms.
Canary chose to file. As a result, Ms. Canary did not file an objection, nor did she request extra
time to file one.23
Therefore, Ms. Canary is effectively asking, through this Motion, to recast her Motion for
Extension of Time as something it was not. Granting that request would cross the line from
neutrality into advocacy, as liberal construction is not a license to recast a litigant’s choices.
3 	ORDER
IT IS HEREBY ORDERED that the Motion24 is DENIED.
Signed November 20, 2025.
BY THE COURT
________________________________________
David Nuffer
United States District Judge
23 See generally docket.
24 Motion for Reconsideration or to Vacate Memorandum Decision and Order Adopting Report and
Recommendations (“Motion”), docket no. 34, filed October 24, 2025.
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