Cowgill ex rel. Private Foreign Trust v. Burke

JOHN HULBERT COWGILL, Beneficiary John Hulbert Cowgill,on behalf of the Private Foreign Trust, Plaintiff, v. PATRICK J. BURKE, President and Chief Executive Officer for HSBC BANK USA,N.A. as Trustee for Wells Fargo Asset Securities Corporation, MortgagePass-Through Certificates, Series 2007-7, Defendant.

No. CIV 17-0242 JB/KBM

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO

August 22, 2017

MEMORANDUM OPINION AND ORDER ADOPTING THE CHIEF MAGISTRATE JUDGE'S PROPOSED FINDINGS AND RECOMMENDED DISPOSITION, AND DISMISSING THE COMPLAINT WITHOUT PREJUDICE

THIS MATTER comes before the Court on the Chief Magistrate Judge's Proposed Findings and Recommended Disposition, filed July 20, 2017 (Doc. 14)("PFRD"). No party has objected to the PFRD. Because the Court concludes that the Honorable Karen B. Molzen, Chief United States Magistrate Judge for the District of New Mexico's conclusions and recommended disposition in the PFRD are not clearly erroneous, arbitrary, obviously contrary to law, or an abuse of discretion, the Court will adopt the PFRD and dismiss this case without prejudice.

PROCEDURAL BACKGROUND

Plaintiff John Hulbert Cowgill filed his Complaint, filed December 1, 2016 (Doc. 1-1)("Complaint"), in the Second Judicial District, County of Bernalillo, State of New Mexico, Cause No. D-202-CV-2016-07480. Defendant Patrick J. Burke removed the case to federal court on February 17, 2017. See Notice of Removal, filed February 17, 2017 (Doc. 1)("Notice of Removal"). On March 3, 2017, Burke filed a motion to dismiss the case asserting, among other things, that Cowgill never properly served him with the Complaint. See Motion to Dismiss Plaintiff's Complaint at 4, filed March 3, 2017 (Doc. 5)("Motion to Dismiss"); Patrick J. Burke's Reply Supporting his Motion to Dismiss Plaintiff's Complaint at 2, filed March 31, 2017 (Doc. 10)("Reply").

On June 23, 2017, the Court referred this case to Chief Magistrate Judge Karen B. Molzen for recommended findings and final disposition. See Order of Reference Relating to Bankruptcy Appeals, Social Security Appeals, Prisoner Cases, Non Prisoner Pro Se Cases and Immigration Habeas Corpus Proceedings, filed June 23, 2017 (Doc. 12)("Referral Order"). On June 30, 2017, the Chief Magistrate Judge entered an Order to Show Cause, requiring Cowgill to serve Burke properly or to provide the Court with a written explanation showing good cause why service has not been made. See Order to Show Cause, filed June 30, 2017 (Doc. 13)("Cause Order"). Cowgill did not respond, and, on July 20, 2017, Chief Magistrate Judge Molzen sua sponte proposed that the Court dismiss the case without prejudice because of Cowgill's apparent lack of interest in properly litigating this matter. See PFRD at 1.

Objections to the Recommended Disposition were due by August 3, 2017. Neither party has objected.

LAW REGARDING DISMISSAL UNDER RULE 4(m) OF THE FEDERAL RULES OF

CIVIL PROCEDURE

"To obtain personal jurisdiction over a nonresident defendant in a diversity action, a plaintiff must show that [(i)] jurisdiction is legitimate under the laws of the forum state and that [(ii)] the exercise of jurisdiction does not offend the due process clause of the Fourteenth Amendment." Benton v. Cameco Corp., 375 F.3d 1070, 1075 (10th Cir. 2004)(internal quotation marks omitted). "A judgment entered absent sufficient service of process upon a defendantviolates due process and is void as to the defendant for want of personal jurisdiction." T.H. McElvain Oil & Gas Ltd. P'ship v. Grp. I: Benson-Montin-Greer Drilling Corp., 2017-NMSC-004, 388 P.3d 240, 248 (Vigil, J.), reh'g denied (Nov. 9, 2016), cert. denied sub nom. T.H. McElvain Oil & Gas Ltd. P'ship v. Grp. I: Benson-Montin-Greer Drilling Corp., 137 S. Ct. 1584 (2017).

Where service of process in state court is defective or incomplete, 28 U.S.C. § 1448 and rule 4(m) give the plaintiff a deadline from the date defendant removes the case to federal court in which the imperfect or defective service may be cured. See Baumeister v. N.M. Comm'n for the Blind, 409 F. Supp. 2d 1351, 1352 (D.N.M. 2006)(Smith, M.J.). See also Green v. Bank of Am., N.A., 2013 WL 11336861, at *2 (D.N.M. 2013)(Parker, J.); Fed. R. Civ. P. 4(m); 28 U.S.C. § 1448. "If a defendant is not served within 90 days after the complaint is filed, the court -- on motion or on its own after notice to the plaintiff -- must dismiss the action without prejudice against that defendant or order that service be made within a specified time." Fed. R. Civ. P. 4(m).

LAW REGARDING OBJECTIONS TO PROPOSED FINDINGS AND

RECOMMENDATIONS

District courts may refer dispositive motions to a Magistrate Judge for a recommended disposition. See Fed. R. Civ. P. 72(b)(1) ("A magistrate judge must promptly conduct the required proceedings when assigned, without parties' consent, to hear a pretrial matter dispositive of a claim or defense . . . ."). Rule 72(b)(2) governs objections: "Within 10 days after being served with a copy of the recommended disposition, a party may serve and file specific written objections to the proposed findings and recommendations." Finally, when resolving objections to a Magistrate Judge's proposal, "the district judge must determine de novo any part of the magistrate judge's disposition that has been properly objected to. The district judge mayaccept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions." Fed. R. Civ. P. 72(b)(3).

Similarly, 28 U.S.C. § 636 provides:

A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge may also receive further evidence or recommit the matter to the magistrate judge with instructions.

28 U.S.C. § 636(b)(1)(C).

"The filing of objections to the magistrate's report enables the district judge to focus attention on those issues -- factual and legal -- that are at the heart of the parties' dispute." United States v. One Parcel of Real Property, With Buildings, Appurtenances, Improvements, and Contents, 73 F.3d 1057, 1059 (10th Cir. 1996)("One Parcel")(quoting Thomas v. Arn, 474 U.S. 140, 147 (1985)). As the Tenth Circuit has noted, "the filing of objections advances the interests that underlie the Magistrate's Act,[¹] including judicial efficiency." One Parcel, 73 F.3d at 1059 (citing Niehaus v. Kansas Bar Ass'n, 793 F.2d 1159, 1165 (10th Cir. 1986); United States v. Walters, 638 F.2d 947, 950 (6th Cir. 1981)).

The Tenth Circuit held in One Parcel "that a party's objections to the magistrate judge's report and recommendation must be both timely and specific to preserve an issue for de novo review by the district court or for appellate review." One Parcel, 73 F.3d at 1060. "To further advance the policies behind the Magistrate's Act, [the Tenth Circuit], like numerous other circuits, ha[s] adopted 'a firm waiver rule' that 'provides that the failure to make timely objections to the magistrate's findings or recommendations waives appellate review of bothfactual and legal questions.'" One Parcel, 73 F.3d at 1059 (citations omitted). In addition to requiring specificity in objections, the Tenth Circuit has stated that "[i]ssues raised for the first time in objections to the magistrate judge's recommendation are deemed waived." Marshall v. Chater, 75 F.3d 1421, 1426 (10th Cir. 1996). See United States v. Garfinkle, 261 F.3d 1030, 1030-31 (10th Cir. 2001)("In this circuit, theories raised for the first time in objections to the magistrate judge's report are deemed waived."). And, in an unpublished opinion, the Tenth Circuit stated that "the district court correctly held that [a petitioner] had waived [an] argument by failing to raise it before the magistrate." Pevehouse v. Scibana, 229 F. App'x 795, 796 (10th Cir. 2007)(unpublished).²

In One Parcel, the Tenth Circuit, in accord with other Courts of Appeals, expanded the waiver rule to cover objections that are timely but too general. See One Parcel, 73 F.3d at 1060. The Supreme Court of the United States -- in the course of approving the United States Court of Appeals for the Sixth Circuit's use of the waiver rule -- has noted:

It does not appear that Congress intended to require district court review of a magistrate's factual or legal conclusions, under a de novo or any other standard, when neither party objects to those findings. The House and Senate Reports accompanying the 1976 amendments do not expressly consider what sort ofreview the district court should perform when no party objects to the magistrate's report. See S. Rep. No. 94-625, pp. 9-10 (1976)(hereafter Senate Report); H.R. Rep. No. 94-1609, p. 11 (1976); U.S. Code Cong. & Admin. News 1976, p. 6162 (hereafter House Report). There is nothing in those Reports, however, that demonstrates an intent to require the district court to give any more consideration to the magistrate judge's report than the court considers appropriate. Moreover, the Subcommittee that drafted and held hearing on the 1976 amendments had before it the guidelines of the Administrative Office of the United States Courts concerning the efficient use of magistrates. Those guidelines recommended to the district courts that "[w]here a magistrate makes a finding or ruling on a motion or an issue, his determination should become that of the district court, unless specific objection is filed within a reasonable time." See Jurisdiction of the United States Magistrates, Hearings on S. 1283 before the Subcommittee on Improvements in Judicial Machinery of the Senate Committee on the Judiciary, 94th Cong., 1st Sess., 24 (1975)(emphasis added)(hereafter Senate Hearings). The Committee also heard Judge Metzner of the Southern District of New York, the chairman of a Judicial Conference

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