United States District Court, D. Colorado
PATRICIA N. BORGERS, Plaintiff,
v.
STATE FARM FIRE AND CASUALTY COMPANY, Defendant.
ORDER
PHILIP
A. BRIMMER UNITED STATES DISTRICT JUDGE
This
matter is before the Court on plaintiff's Appeal Pursuant
to F.R.C.P. 72 of Magistrate's Orders re Scheduling of
Discovery and Other Deadlines [Docket No. 26]. The Court has
jurisdiction pursuant to 28 U.S.C. § 1332.
This is
an insurance coverage dispute. On June 16, 2017, defendant
State Farm Fire and Casualty Company issued a homeowners
insurance policy to plaintiff Patricia N. Borgers. Docket No.
15 at 1, ¶ 5. Plaintiff alleges that, in July 2017, her
home flooded as a result of a damaged hot water pipe while
she was in Texas attending her husband's funeral. Docket
No. 7 at 2, ¶¶ 6-8. On September 13, 2017,
defendant denied plaintiff's insurance claim, halting
repairs on the home that had not yet been completed. Docket
No. 7-1; Docket No. 15 at 4, ¶ 21.
On
February 20, 2018, plaintiff filed her complaint. Docket No.
1. She alleges breach of contract, promissory estoppel, and
bad faith denial of coverage. Docket No. 7. On May 2, 2018,
Magistrate Judge Scott T. Varholak held a scheduling
conference and entered a scheduling order. Docket Nos. 23,
24. In the proposed scheduling order, plaintiff argued that
this case should be given a preferential trial date pursuant
to Colo. Rev. Stat. § 13-1-129 because of her advanced
age and health problems. See Docket No. 21 at 9,
¶ 8.d. At the scheduling conference, the magistrate
judge indicated that he believed § 13-1-129 is a
procedural statute and stated that plaintif f should file a
motion on the issue so that he or the Court could rule on the
issue. Docket No. 25 at 12:7-22. The magistrate judge adopted
defendant's proposed deadlines for discovery based on the
assumption that § 13-1-129 was not binding. Id.
at 12:23-13:2. Plaintiff did not file the suggested motion.
Instead, on May 16, 2018, plaintiff filed a timely appeal of
the scheduling order pursuant to Fed.R.Civ.P. 72(a). Docket
No. 26.
When a
magistrate judge issues an order on nondispositive matters,
“[a] party may serve and file objections to the order
within 14 days after being served with a copy.”
Fed.R.Civ.P. 72(a). “The district judge in the case
must consider timely objections and modify or set aside any
part of the order that is clearly erroneous or is contrary to
law.” Id. “[A] party's objections .
. . must be both timely and specific to preserve an issue for
de novo review by the district court.” United
States v. One Parcel of Real Property Known As 2121 East 30th
St., 73 F.3d 1057, 1060 (10th Cir. 1996). To be
sufficiently specific, an objection must “enable[] the
district judge to focus attention on those issues-factual and
legal-that are at the heart of the parties'
dispute.” See Id. at 1059 (quoting Thomas
v. Arn, 474 U.S. 140, 147 (1985)). In the absence of a
proper objection, the Court may review a magistrate
judge's recommendation or order under any standard it
deems appropriate. See Summers v. Utah, 927 F.2d
1165, 1167 (10th Cir. 1991); see also Thomas, 474
U.S. at 150 (“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.”).
Plaintiff
requests that “the Court, by way of applying [§]
13-21-129 [sic] or otherwise, . . . take Plaintiff's
unique circumstances surrounding her age and health into
account, in addressing timing of discovery, in a manner which
accelerates the existing dates in the Scheduling Order to
either directly reflect the dates proposed by Plaintiff, or
provides for some reasonable compromise which moves the case
along in a more expedited fashion giving consideration to
Plaintiff's age and health.” Docket No. 26 at 8.
Despite the high standard of review, plaintiff cites no
authority other than § 13-1-129 and Fed.R.Civ.P. 1 in
support of her argument. See id. at 11.
Under
either relevant subsection of § 13-1-129, plaintiff must
file a motion requesting a preferential trial date and the
issues of health and age alone are not dispositive. Under
§ 13-1-129(1), a court “shall” grant a
motion for a preferential trial date where a party
“suffers from an illness or condition raising
substantial medical doubt of survival of that party beyond
one year and which satisfies the court that the interests of
justice will be served by granting such motion for a
preferential trial date.” Under § 13-1-129(2), a
court “may” grant such a motion from a party that
is “at least seventy years of age” if it makes a
finding that the party's “claim is
meritorious.” Plaintiff does not attempt to show there
is doubt that she will survive another year. Plaintiff is 77
years of age and, thus, she could file a motion under §
13-1-129(2) requesting discretionary relief. See
Docket No. 26-6. As noted above, however, plaintiff has not
filed such a motion, despite the magistrate judge's
suggestion that she do so. Thus, the Court must overrule
plaintiff's objection that the magistrate judge should
have applied § 13-1-129 because she has not shown that
the magistrate judge clearly erred. Moreover, as the
magistrate judge indicated, there is little reason to believe
that § 13-1-129(2) is binding in federal court because
it is a procedural statute that does not bear on the outcome
of the case, only on the timing of a trial. See
Trierweiler v. Croxton & Trench Holding Corp., 90
F.3d 1523, 1539-41 (10th Cir. 1996) (discussing Erie
Railroad Co. v. Tompkins, 304 U.S. 64 (1938) and its
progeny); Tait ex rel. Tait v. Hartford Underwriters Ins.
Co., 49 P.3d 337, 343 (Colo.App. 2001) (quoting the
remand order in Tait ex rel. Tait v. Western Summit
Const., No. 00-cv-01057-DBS, Docket No. 6 (D. Colo. May
24, 2000), indicating a belief that the insurance
company's attempts to remove the case were a “very
transparent attempt” to avoid the applicability of
§ 13-1-129). Plaintiff does not provide any persuasive
argument to the contrary. See Docket No. 26 at 7.
Regarding
plaintiff's objection that the Court should take
plaintiff's circumstances into account even if §
13-1-129 is inapplicable, the Court finds that plaintiff
failed to raise this issue before the magistrate judge. In
the proposed scheduling order, plaintiff argued that the
magistrate judge should accelerate the trial schedule based
on the applicability of § 13-1-129 only. See
Docket No. 24 at 9. While plaintiff's counsel mentioned
plaintiff's health at the scheduling conference, he did
not make an argument that her health provided good cause for
an accelerated schedule. See Docket No. 25 at 11:4-6
(“[W]e are really talking a lot of experts and there is
some real issues with my client's health.”). While
plaintiff's age and health are legitimate concerns that
can be taken into account in determining the case schedule,
the Court declines to address the issue in the first instance
on appeal. See Marshall v. Chater, 75 F.3d 1421,
1426 (10th Cir. 1996). Therefore, the Court will overrule
plaintiff's objection that the magistrate judge should
have taken her age and health into account independent of
§ 13-1-129. Nonetheless, plaintiff may file a motion to
modify the scheduling order for “good cause.”
Fed.R.Civ.P. 16(b)(4).
For the
foregoing reasons, it is
ORDERED
that the objections contained in plaintiff's Appeal
Pursuant to F.R.C.P. 72 of Magistrate's Orders re
Scheduling of Discovery and ...