United States District Court, D. Colorado
MAKEEN INVESTMENT GROUP, LLC, a Colorado limited liability company; AKEEM MAKEEN, individually and as a member; KEVIN JOHNSTON, Plaintiffs,
v.
WOODSTREAM FALLS CONDOMINIUM ASSOCIATION, INC., a Colorado non-profit corporation; HUNTER LAW, LLC; CHARLENE HUNTER, individually and in her official capacity as agent; LAW OFFICE OF HORACE A. LOWE;HORACE A. LOWE, individually and in his official capacity as agent, Defendants.
ORDER ADOPTING JULY 2, 2018 RECOMMENDATION OF
MAGISTRATE JUDGE AND ADMINISTRATIVELY CLOSING CASE
WILLIAM J. MARTÍNEZ UNITED STATES DISTRICT JUDGE
This
matter is before the Court on United States Magistrate Judge
Mark L. Carman's Recommendation dated July 2, 2018
(“Recommendation”), which recommended
administratively closing the case pending the conclusion of
the appellate process in the related state court matter
initially filed in the Denver District Court (“State
Court Action”). (ECF No. 227.) The Recommendation is
incorporated herein by reference. See 28 U.S.C.
§ 636(b)(1)(B); Fed.R.Civ.P. 72(b). Plaintiffs Akeem
Makeen and the Makeen Investment Group, LLC (together,
“Plaintiffs”), filed a timely Objection to the
Recommendation (“Objection”). (ECF No. 228.)
Plaintiffs' Fifth Motion for Leave to Amend Complaint
(ECF No. 198) and Judge Carman's recommendation to deny
amendment (ECF No. 224) are also pending before the Court.
For the reasons set forth below, Plaintiffs' Objection is
overruled, the Recommendation is adopted, Plaintiffs'
Fifth Motion for Leave to Amend is denied as moot, and the
case shall be administratively stayed.
I.
STANDARD OF REVIEW
When a
magistrate judge issues a recommended outcome on a
dispositive matter, Federal Rule of Civil Procedure 72(b)(3)
requires that the district judge “determine de novo any
part of the magistrate judge's disposition that has been
properly objected to.” Fed.R.Civ.P. 72(b)(3); see
also Summers v. State of Utah, 927 F.2d 1165, 1167 (10th
Cir. 1991) (“De novo review is statutorily and
constitutionally required when written objections to a
magistrate's report are timely filed with the district
court.”). In the absence of a timely and specific
objection, “the district court may review a magistrate
. . . [judge's] report under any standard it deems
appropriate.” Summers v. Utah, 927 F.2d 1165,
1167 (10th Cir. 1991) (citing Thomas v. Arn, 474
U.S. 140, 150 (1985)). “When no timely objection is
filed, the court need only satisfy itself that there is no
clear error on the face of the record in order to accept the
recommendation.” Fed.R.Civ.P. 72(b) Advisory Comm.
Note.
An
objection to a recommendation is properly made if it is
timely and specific. United States v. One Parcel of Real
Property Known as 2121 East 30th St., 73 F.3d 1057, 1059
(10th Cir. 1996). An objection is sufficiently specific if it
“enables the district judge to focus attention on those
issues-factual and legal-that are at the heart of the
parties' dispute.” Id. (quoting Thomas
v. Arn, 474 U.S. 140, 147 (1985)). “A 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.” Strepka v.
Sailors, 494 F.Supp.2d 1209, 1230 (D. Colo. 2007). In
conducting its review, “[t]he district court judge may
accept, reject, or modify the recommendation; receive further
evidence; or return the matter to the magistrate judge with
instructions.” 2121 East 30th St., 73 F.3d at
1059.
II.
FACTUAL & PROCEDURAL BACKGROUND
The
Court and the parties are familiar with the long history of
this case, due to extensive briefing on a variety of issues.
The Court will summarize only the most pertinent facts
necessary to resolve the instant matter.
The
Woodstream Falls Condominium Association, Inc., and related
parties (together, “WFCA” or
“Defendants”) and Plaintiffs were parties to a
series of lawsuits in the Denver District Court. (ECF No. 165
at 1.) WFCA prevailed and the parties thereafter entered into
a Settlement Agreement. In February 2015, WFCA filed the
State Court Action against Akeem Makeen, Kevin Johnston,
Debra Weskamp, Makeen Investment Group, LLC, and the Makeen
Family Children's Trust (“State Court
Defendants”) for recovery of past-due assessments and
other fees. (Id. at 2.) On May 11, 2016, WFCA filed
a number of Notices of Lis Pendens (“Notices”) in
the Denver District Court regarding properties owned by
various combinations of the State Court Defendants. In
apparent response to these Notices, Mr. Makeen, Mr. Johnston,
and the Makeen Investment Group, LLC, initiated the present
action in federal court challenging, among other things, the
validity of the Notices. (Id.; ECF No. 1.)
Plaintiffs
were permitted to amend their complaint multiple times, and a
motion to further amend the complaint is currently pending
before the Court. (ECF Nos. 18, 57, 74, 146, 164, 197, 198.)
In
light of the potential relationship to the State Court
Action, (now retired) United States Magistrate Judge Craig B.
Shaffer asked the parties to submit briefs addressing the
applicability of the Colorado River abstention
doctrine. See Colo. River Water Conservation Dist. v.
United States, 424 U.S. 800 (1976). Thereafter, Judge
Shaffer recommended that the cases were “parallel,
” the Colorado River doctrine should apply,
and the case should be administratively closed pending an
outcome in the State Court Action. (ECF No. 165.) Plaintiffs
filed an objection to that recommendation (ECF No. 169).
Before this Court ruled on Judge Shaffer's recommendation
and the objection, Judge Buchanan of the Denver District
Court entered judgment in the State Court Action in favor of
WFCA. (ECF No. 195-1.) The undersigned concluded that Judge
Shaffer's recommendation, the objection, and various
related motions were moot. (ECF No. 201.)
Judge
Carman thereafter requested status reports from the parties
regarding the impact, if any, of the State Court Action on
the federal case. (ECF No. 17.) The parties submitted a total
of four status reports between March 12, 2018 and April 3,
2018. (ECF Nos. 219, 220, 221, 222.) On May 7, 2018, the
State Court Defendants filed a Notice of Appeal of the State
Court Action in the Colorado Court of Appeals. On July 2,
2018, Judge Carman recommended the case be administratively
closed pending the outcome of the appeal of the State Court
Action. (ECF No. 227.) Plaintiffs timely objected. (ECF No.
228.)
III.
ANALYSIS
The
Recommendation contains the following findings and
conclusions: (1) under Colorado law, a judgment that is still
pending on appeal is not final, whether for issue preclusion
or claim preclusion; (2) there is not yet a final judgment in
the State Court Action for purposes of claim preclusion; (3)
“the validity of the Notices is inextricably
intertwined with the final resolution of Judge Buchanan's
findings of fact, conclusions of law, and his various orders
implementing the same”; (4) abstention under the
Colorado River doctrine is warranted; and (5) the
instant action should be administratively closed pending
conclusion of the appellate process in the State Court
Action. (See generally ECF No. 227.)
Plaintiffs'
Objection fails to address the findings or conclusions set
forth in the Recommendation. At most, Plaintiffs arguably
dispute the Recommendation's conclusion that the state
and federal actions are parallel (and thus that the
Colorado River abstention is appropriate). (ECF No.
228 at 4 (“Magistrate Carman held that the claims are
inter related [sic] and that they are connected based on the
relief granted, this is error[.] Colorado law does not care
what the final[ ] outcome is”); id. at 9
(“none of the remaining claims are effected [sic] by
State claims”).) For purposes of the Colorado
River doctrine, suits are parallel “if
substantially the same parties litigate substantially the
same issues in different forums.” Fox v.
Maulding, 16 F.3d 1079, 1081 (10th Cir. 1994) (citation
omitted). At base, Plaintiffs' claims implicate the same
issues as those in the State Court Action. While there are no
claims regarding the Notices in the State Court Action, the
validity of the Notices and WFCA's filing thereof are
directly impacted by the State Court Action's resolution
of WFCA's entitlement to a lien on the properties at
issue in the Notices. On de novo review, the Court
concludes that the validity of the Notices ...