United States District Court, D. Colorado
MAKEEN INVESTMENT GROUP, LLC, as trustee for THE MAKEEN FAMILY CHILDRENS TRUST, and AKEEM MAKEEN, Plaintiffs,
STATE OF COLORADO, JUDGE MICHAEL JAMES VALLEJOS, in his official capacity, JUDGE JENNIFER TORRINGTON, in her official capacity, MAX MINNIG, JR. & ASSOCIATES, LLC, and MAX A. MINNIG, JR, individually and in his official capacity as agent for GEORGE E. HAILEY, Defendants.
RAYMOND P. MOORE, UNITED STATES DISTRICT JUDGE
matter is before the Court on (1) the October 12, 2018,
Recommendation of United States Magistrate Judge Scott T.
Varholak (the “Recommendation”) (ECF No. 138) to
dismiss without prejudice Plaintiffs' claims based on the
Rooker-Feldman doctrine raised by the State
Defendants in their Motion to Dismiss (ECF No.
and to deny as moot the remaining pending motions (ECF Nos.
93, 121); and (2) Plaintiff Makeen Investment Group,
LLC's (“MIG”) Fourth Motion for
Leave to Amend Complaint (the “Motion to Amend”)
(ECF No. 143). The Recommendation is incorporated herein by
reference. See 28 U.S.C. § 636(b)(1)(B);
Fed.R.Civ.P. 72(b). For the reasons stated herein, the Court
adopts, in part, the Recommendation and denies the Motion to
Recommendation advised the parties that specific written
objections were due within fourteen days after being served
with a copy of the Recommendation. (ECF No. 138 at page 18.)
Despite this advisement, no objections to the Recommendation
have to date been filed by any party and the time to do so
has expired. (See generally Dkt.) However, after the
Recommendation was issued, Plaintiff Akeem Makeen voluntarily
dismissed his case without prejudice (ECF Nos. 139-141).
Accordingly, the Recommendation as to Mr. Makeen is moot.
Recommendation as to Plaintiff MIG, however, is not. The
Court concludes that Magistrate Judge Varholak's analysis
as to MIG was thorough and sound, and that there is no clear
error on the face of the record. See Fed. R. Civ. P.
72(b) advisory committee's note (“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.”); see also Summers v.
Utah, 927 F.2d 1165, 1167 (10th Cir. 1991) (“In
the absence of timely objection, the district court may
review a magistrate's report under any standard it deems
appropriate.”). The Recommendation as to MIG is,
therefore, adopted as an order of this Court.
THE MOTION TO AMEND
MIG's failure to object to the recommended dismissal of
this case, it seeks to salvage this case by requesting leave
to amend the complaint - yet again. MIG contends leave should
be granted because the other amendments were
initiated by Mr. Makeen; this case has drastically changed
with the dismissal of Mr. Makeen; its amendment will survive
a motion to dismiss and there is no scheduling order in this
case; a fourth amended complaint will avoid piecemeal
litigation of this action; and leave is warranted under
Fed.R.Civ.P. 15(a). State Defendants' response in
opposition argues undue delay and futility of the proposed
amendment. MIG's reply counters that the Recommendation
is erroneous as to MIG because it was not a party in the
state court action; State Defendants will not be prejudiced;
and its amendment is not futile as they seek only declaratory
and injunctive relief, the recommendation erroneously held
the Rooker-Feldman doctrine applies, and State
Defendants have not alleged the amendment would not survive a
motion to dismiss. The Court addresses these arguments below.
initial matter, MIG's Motion to Amend is conclusory and
devoid of any legal or factual analysis; for this reason
alone, the Motion to Amend is subject to denial. Even if the
Court were to consider the remaining papers, MIG still fails
to show leave to amend should be granted.
the Court finds undue delay. As State Defendants argue, their
Motion to Dismiss was pending seven months before MIG sought
leave to amend. Such undue delay is inexplicable. Moreover,
MIG was afforded the opportunity to amend before
State Defendants filed their Motion to Dismiss to correct the
deficiencies raised in that motion, as, in accordance with
this Court's Civil Practice Standards, Defendants
attempted to confer with MIG's counsel prior to filing
the motion. Thus, MIG's request comes
inordinately, and inexcusably, too late.
if the Court were to grant leave to amend, it would be the
fifth complaint filed in this case. MIG's assertion that
all the other amendments were caused by Mr. Makeen
is not well taken. The Court's review of the other
amended complaints, the motions seeking leave to amend, and
the amendments themselves shows otherwise. (See ECF
Nos. 1, 7, 17, 18, 23, 24, 66, 67, 83, 86.) In other words,
MIG has been afforded repeated opportunities to cure any
MIG seeks to amend based on the argument that the
Recommendation is allegedly “erroneous, ” an
argument which the Court finds is in essence a belated
attempt to object to the Recommendation. If the
Recommendation is erroneous, as MIG argues, it could and
should have objected. It did not. Failing to do so, MIG
waived any right to object. See Davis v. Clifford,
825 F.3d 1131, 1137 n.3 (10th Cir. 2016) (“Under our
firm-waiver rule, [a party's] failure to object
‘waives appellate review of both factual and legal
questions.'” (quoting Casanova v.
Ulibarri, 595 F.3d 1120, 1123 (10th Cir.
2010)). If the Court were to grant leave to amend
based on the argument asserted, the Court would, essentially,
be conducting a de novo review of a recommendation to which
no timely objection has been filed. The Court will not
countenance such a procedural maneuver to avoid the
requirements of a timely objection.
on the foregoing, the Court:
ADOPTS the Recommendation of United States Magistrate (ECF
No. 138) as to Plaintiff Makeen Investment Group, LLC's,