United States District Court, D. Colorado
ESMERALDO VILLANUEVA ECHON, JR., MARIBEL ECHON, and JUSTIN ECHON, Plaintiffs,
WILLIAM SACKETT and LEONIDA SACKETT, Defendants.
A. BRIMMER United States District Judge
matter is before the Court on defendants' Answer to
Plaintiffs Response to Defendants Proposal to Remove
Witnesses [Docket No. 137]. The Court construes this filing
as a Federal Rule of Civil Procedure 72 objection to the
magistrate judge's order denying defendants' Proposal
to Remove Witnesses [Docket No. 134].
background facts in this case are summarized in the
magistrate judge's order and will not be repeated here.
On October 10, 2017, defendants filed a motion styled as a
“Proposal to Remove Witnesses.” Docket No. 124.
As construed by the magistrate judge, the motion requests
that the Court exclude four fact witnesses - Albert Hall,
Phylis Adkins, Angela Martinez, and Peggy Bellar - on grounds
that what Mr. Hall and Ms. Adkins know about the case is
hearsay and that Mr. Hall, Ms. Martinez, and Ms. Bellar
illegally trespassed on defendants' property.
Id. at 1-2; see also Docket No.
134 at 1, 4 (construing filing as a motion to exclude/motion
in limine). On October 30, 2017, Magistrate Judge
Nina Y. Wang issued a recommendation and order denying the
motion on the basis that defendants failed to substantiate
their assertions that the proffered testimony is hearsay and
that Ms. Martinez and Ms. Bellar trespassed on
defendants' property. See Docket No. 134 at
The order further cites this Court's practice standard
discouraging motions in limine “when the
motion cannot be resolved until evidence is presented at
trial, ” Practice Standard (Civil Cases), Judge Philip
A. Brimmer § III.E, and suggests that defendants'
motion cannot be addressed until the Court has a clearer
sense of how the challenged witnesses will testify.
See Docket No. 134 at 5. On November 1, 2017,
defendants filed a response to plaintiffs' Response to
Defendants' Proposal to Remove Witnesses [Docket No.
129]. Docket No. 137. Given the timing of the filing, as well
as defendants' pro se status, the Court construes
defendants' response as a Rule 72 objection to the
magistrate judge's October 30, 2017 order.
reviewing a party's objection to a magistrate judge's
order on a non-dispositive matter, the Court “must
consider timely objections and modify or set aside any part
of the order that is clearly erroneous or is contrary to
law.” Fed.R.Civ.P. 72(a); Hutchinson v. Pfeil,
105 F.3d 562, 566 (10th Cir. 1997). The clearly erroneous
standard “requires that the reviewing court affirm
unless it ‘on the entire evidence is left with the
definite and firm conviction that a mistake has been
committed.'” Ocelot Oil Corp. v. Sparrow
Industries, 847 F.2d 1458, 1464 (10th Cir. 1988)
(quoting United States v. United States Gypsum Co.,
333 U.S. 364, 395 (1948)).
Rule 72 objection largely repeats arguments already
considered and rejected by the magistrate judge.
Specifically, defendants contend that Mr. Hall's
testimony would be hearsay and that plaintiffs' witnesses
trespassed on defendants' property. See Docket
No. 137 at 2. But, as the magistrate judge found, defendants
have not provided any factual support for these assertions.
See Docket No. 134 at 5. Moreover, because
defendants offer no basis for the Court to determine how
plaintiffs' witnesses will testify, the Court agrees with
the magistrate judge that it would be inappropriate to
resolve defendants' hearsay objections prior to trial.
See Practice Standard (Civil Cases), Judge Philip A.
Brimmer § III.E. The magistrate judge's denial of
defendants' motion on these grounds was thus not clearly
erroneous or contrary to law.
extent defendants' objection raises new arguments not
presented to the magistrate judge, the Court declines to
consider them. See United States v. Ledford, No.
07-cv-01568-WYD-KMT, 2010 WL 749843, at *8 (D. Colo. Mar. 3,
2010) (“[A]rguments not provided to the attention of
the magistrate judge will not be considered in connection
with review of nondispositive motions.” (citing
Claytor v. Comput. Assocs. Int'l, Inc., 211
F.R.D. 665, 667 (D. Kan. 2003)); City of Wichita v. Aero
Holdings Inc., 192 F.R.D. 300, 302 (D. Kan. 2000)
(noting that court's review of objection to magistrate
judge's order on non-dispositive motion “is not a
de novo review permitting a second shot . . . based on new
foregoing reasons, it is
that defendants' Answer to Plaintiffs Response to
Defendants Proposal to Remove Witnesses [Docket No. 137],
which the Court construes as a Rule 72 objection to the
magistrate judge's October 30, 2017 Recommendation and
Order [Docket No. 134], is OVERRULED.
The order is styled as a
“Recommendation and Order” because the magistrate
judge was also considering defendants' Motion to Dismiss
Witnesses [Docket No. 132], which she construed in the
alternative as a motion for judgment on the pleadings.
See Docket No. 134 at 1. Although the magistrate
judge recommended that the Court deny that motion, see
Id. at 7, ...