Frie v. Davis et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 1:25-cv-00711-CNS-SBP
JOHN J. FRIE,
Plaintiff,
v.
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY and
STATE FARM FIRE AND CASUALTY COMPANY,
Defendants.
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE
JUDGE
Susan Prose, United States Magistrate Judge
This matter is before the court on Plaintiff John J. Frie’s Motion to Remand (ECF No. 48,
“Motion” or “Motion to Remand”) filed April 4, 2025, which seeks remand of this action to the
District Court for Jefferson County, Colorado, pursuant to 28 U.S.C. § 1447(c). Defendants State
Farm Mutual Automobile Insurance Company and State Farm Fire and Casualty Company
(collectively, “State Farm”) oppose remand, contending that removal was timely and proper
following a settlement resulting in the dismissal of non-diverse defendants. State Farm filed its
response to the Motion to Remand on May 5, 2025 (ECF No. 54), and Plaintiff filed a reply on
May 12, 2025 (ECF No. 60). The court heard oral argument on the Motion on August 13, 2025.
ECF No. 77. The motion is referred to the undersigned United States Magistrate Judge for
recommendation pursuant to 28 U.S.C. § 636(b)(1)(B) and D.C.COLO.LCivR 72.1(c). ECF No.
49 (Order of Reference).
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Having considered the Motion and all related briefing, the entire docket, and the
applicable law, as well as the parties’ respective positions presented at the oral argument, the
court now respectfully RECOMMENDS1 that the Motion to Remand be DENIED.
BACKGROUND
Plaintiff John J. Frie commenced this action on June 28, 2024, in the District Court for
Jefferson County, Colorado, Case No. 2024CV30903 (the “State Court Action”). See Notice of
Removal, ECF No. 1 ¶¶ 1–5. On July 2, 2021, Plaintiff was in a motor vehicle accident in which
Kirkland D. Davis allegedly rear-ended Plaintiff’s vehicle while Davis was acting within the
course and scope of his employment with Horizon Drywall, Incorporated (“Horizon”). Id. ¶¶ 1–
4; see also generally Complaint and Jury Demand (“Complaint”), ECF No. 4 ¶¶ 20-26, 9–10, 21-
26. In the State Court Action, Plaintiff brought a claim sounding in negligence and negligence
per se against Davis and Horizon, imputing liability to Horizon on a respondeat superior theory.
ECF No. 4 ¶¶ 27-31 (the “Personal Injury Claim”). Plaintiff also brought claims against State
Farm, his insurer, for underinsured motorist (“UIM”) benefits and for State Farm’s alleged
unreasonable denial or delay of payments in violation of Colorado Revised Statutes § 10-3-1115
and § 10-3-1116 (the “Insurance Claims”). ECF No. 4 ¶¶ 27–42.
At the time the State Court Action was filed, Plaintiff and former defendants Davis and
Horizon were citizens of Colorado. ECF No. 1 ¶¶ 12–15. State Farm is organized under Illinois
1 “[A] remand order is a final decision or dispositive action that must ultimately be made by the
district court to survive Article III scrutiny. That means that a magistrate judge may recommend
a remand so long as the ultimate decision is made by the district court.” First Union Mortg.
Corp. v. Smith, 229 F.3d 992, 996 (10th Cir. 2000) (internal quotation marks and quotation
omitted).
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law and is therefore a citizen of that state. ECF No. 1 ¶ 36.
State Farm was served in the State Court Action on July 18, 2024, and answered the
Complaint on August 23, 2024. ECF No. 1 ¶¶ 9, 11.2 A case management order was entered in
the State Court Action, see ECF No. 1-10, and the parties engaged in discovery. At a case
management conference in the State Court Action on October 3, 2024, State Farm “announced its
plan and desire to have the Insurance Claims removed to federal court.” See ECF No. 48 ¶ 4. As
promised, on November 12, 2024, State Farm filed a motion asking the state court to sever the
Insurance Claims and “order that they proceed separately.” See ECF No. 1‑45 & id. at 19. The
motion to sever remained pending as of February 6, 2025—and, in fact, was never ruled on by
the state court—when all parties participated in a mediation with a JAMS mediator. See ECF No.
64 at 5. Plaintiff reached a settlement with Davis and Horizon at the mediation, ECF No. 1
¶¶ 19–22, but not with State Farm.
On February 11, 2025, State Farm states that it learned for the first time by means an
email from counsel for Davis and Horizon that those defendants had reached a settlement with
Plaintiff. Id. ¶ 20.3 State Farm immediately requested a copy of the settlement agreement and
“ask[ed] interrogatories about various pieces of information in the settlement agreement because
the State Farm Defendants believe the settlement agreement is discoverable in this litigation
2 State Farm’s answer is docketed in the instant matter at ECF No. 4.
3 State Farm further represents that, on “January 14, 2025,” its counsel “confirmed with the
mediator that Plaintiff and [Davis and Horizon] actually did settle.” ECF No. 1 ¶ 22 (emphasis
added). In light of the undisputed timeline, the court assumes this to be a scrivener’s error and
that this conversation actually occurred on February 14, 2025.
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despite any confidentiality provision.” Id. ¶ 23.4 On March 4, 2025, counsel for Davis and
Horizon filed a “Status Report and Request to be Excused from Upcoming March 5, 2025
Hearing” in the State Court Action, in which they represented that they had settled the claims
against them and “that a Stipulation of Dismissal would be filed by March 7, 2025.” See ECF
No. 1-6. On March 5, 2025, the day after Davis and Horizon filed the status report signaling their
dismissal from the State Court Action, State Farm removed the case to this court, explaining that
the “settlement agreement and impending dismissal” of Davis and Horizon has rendered the
State Court Action “removable because the amount in controversy exceeds $75,000” and “there
is now complete diversity between Plaintiff and the State Farm Defendants[.]” ECF No. 1 ¶ 17.
Plaintiff filed the Motion to Remand on April 4, 2025, arguing that State Farm’s removal
was untimely. See generally ECF No. 48. Plaintiff contends that State Farm’s right to remove
was ascertainable either from the face of the Complaint or from State Farm’s November 12, 2024
motion to sever, which Plaintiff characterizes as asserting procedural or fraudulent misjoinder of
Davis and Horizon, and that State Farm also waived its right to remove through its participation
in the State Court Action. State Farm opposes remand, arguing that Plaintiff’s position regarding
remand is at odds with the factual record and the applicable law. See generally ECF No. 54.
LEGAL STANDARD
“A case originally filed in state court may be removed to federal court if, but only if,
4 State Farm’s argument that it is entitled to review the settlement agreement and related
information is the subject of Plaintiff’s Motion to Quash May 5, 2025 Subpoenas to Produce
Documents to Kirkland D. Davis a/k/a Kirk Davis and to Horizon Drywall, Incorporated, a/k/a
Horizon Drywall, Inc., pursuant to Federal Rule of Civil Procedure 45(d)(3), ECF No. 61, which
is pending.
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‘federal subject-matter jurisdiction would exist over the claim.’” Firstenberg v. City of Santa Fe,
696 F.3d 1018, 1023 (10th Cir. 2012) (quoting Hansen v. Harper Excavating, Inc., 641 F.3d
1216, 1220 (10th Cir. 2011)). “[A]ny civil action brought in a State court of which the district
courts of the United States have original jurisdiction, may be removed by the defendant or the
defendants, to the district court of the United States for the district and division embracing the
place where such action is pending.” 28 U.S.C. § 1441(a). As pertinent here, original jurisdiction
includes disputes between citizens of different states where the amount in controversy exceeds
$75,000, exclusive of interest and costs. Id. § 1332(a)(1). Federal jurisdiction under § 1332(a)
requires “complete diversity” among the parties, meaning the citizenship of all defendants must
be different from the citizenship of all plaintiffs. Lincoln Prop. Co. v. Roche, 546 U.S. 81, 89
(2005). The party invoking diversity jurisdiction—here, State Farm—has the “burden of proving
[diversity jurisdiction] by a preponderance of the evidence.” Middleton v. Stephenson, 749 F.3d
1197, 1200 (10th Cir. 2014) (citation omitted).
28 U.S.C. § 1446 governs the procedure to remove an action to federal court. It states, in
pertinent part, that “[a] defendant or defendants desiring to remove any civil action from a State
court shall file in the district court of the United States within which such action is pending a
notice of removal . . . containing a short and plain statement of the grounds for removal, together
with a copy of all process, pleadings, and orders served upon such defendant or defendants in
such action.” 28 U.S.C. § 1446(a). A notice of removal must be “filed within 30 days after the
receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting
forth the claim for relief upon which such action or proceeding is based, or within 30 days after
the service of summons upon the defendant, if such initial pleading has then been filed in court
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and is not required to be served on the defendant, whichever period is shorter.” Id. § 1446(b)(1).
But “if the case stated by the initial pleading is not removable,” the defendant must remove the
action to federal court “within thirty days after receipt by the defendant, through service or
otherwise, of a copy of an amended pleading, motion, order or other paper from which it may
first be ascertained that the case is one which is or has become removable.” Id. § 1446(b)(3). The
thirty-day removal period under § 1446(b)(3) begins to run only when a defendant receives a
pleading or other paper that “provide[s] unequivocal notice of the right to remove[.]” Akin v.
Ashland Chem. Co., 156 F.3d 1030, 1036 (10th Cir. 1998); see also DeBry v. Transamerica
Corp., 601 F.2d 480, 489 (10th Cir. 1979) (“If the statute [under § 1446(b)] is going to run, the
notice ought to be unequivocal. It should not be one which may have a double design.”). The
Tenth Circuit Court of Appeals has construed “‘ascertained’ as used in section 1446(b) [to]
mean[] a statement that ‘should not be ambiguous’ or one which ‘requires an extensive
investigation to determine the truth.’” Akin, 156 F.3d at 1035 (quoting DeBry, 601 F.2d at 490).
In other words, “clear and unequivocal notice” of removability is required. Id. at 1036.
Because federal courts are courts of limited jurisdiction, “[i]t is well-established that
statutes conferring jurisdiction upon the federal courts, and particularly removal statutes, are to
be narrowly construed in light of our constitutional role as limited tribunals.” Pritchett v. Office
Depot, Inc., 420 F.3d 1090, 1094-95 (10th Cir. 2005) (citations omitted). Accordingly, “[f]ederal
district courts must strictly construe their removal jurisdiction.” Castaneda v. State Farm Mut.
Auto. Ins. Co., No. 24-cv-03536-PAB, 2025 WL 1201751, at *1 (D. Colo. Apr. 25, 2025)
(quoting Env’t Remediation Holding Corp. v. Talisman Cap. Opportunity Fund, L.P., 106 F.
Supp. 2d 1088, 1092 (D. Colo. 2000)).
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ANALYSIS
The parties dispute whether State Farm’s removal was timely. Plaintiff’s untimeliness
argument hinges on the premise that this case was removable long before March 5, 2025,
because (1) State Farm could have invoked a fraudulent or procedural “misjoinder” theory at the
outset of the State Court Action, based on Plaintiff’s having improperly joined Davis and
Horizon as parties; (2) State Farm’s own motion to sever in the State Court Action constituted an
“other paper” under § 1446(b)(3), making removability ascertainable as of November 12, 2024,
the date of filing of that motion; and (3) State Farm waived its right to seek removal by
participating in the litigation of the State Court Action. See ECF No. 48 at 5–15. The court
respectfully disagrees with Plaintiff, on all points.
I. 	The State Court Action Was Not Initially Removable.
Plaintiff first argues that removability was ascertainable on July 18, 2024, the date of
service of the State Court Action on State Farm, because State Farm allegedly knew as of that
date that Davis and Horizon had been fraudulently or improperly joined as parties. See ECF 48 at
5-9. This argument carries no weight because it is based on a mischaracterization of the motion
to sever that State Farm filed in the State Court Action on November 12, 2024. See ECF No. 1-
45.
The court has carefully reviewed the motion to sever and cannot find any argument in it
urging severance based on some supposedly fraudulent or improper joinder of Davis and
Horizon. To the contrary, State Farm expressly disclaimed any reliance on a misjoinder theory,
stating that “[m]isjoinder is not a prerequisite to severance” and emphasizing that “[c]ourts
can—and often do—sever cases without any finding of improper joinder.” Id. at 6 (collecting
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cases) (emphasis added). Rather, State Farm’s argument for severance was based on the
distinction between the claims brought against it and those brought against Davis and Horizon,
which arose “from different transactions and occurrences,” as well as State Farm’s contention
that its position in the litigation would be prejudiced “from the unavoidable disclosure of Mr.
Davis and Horizon’s liability insurance and Plaintiff’s UIM insurance to the jury.” Id. at 6-18;
see also id. at 4 (“As a host of courts have concluded, personal injury claims should be severed
from insurance claims because they seek to remedy fundamentally different interests, do not
arise out of the same transaction or occurrence despite a connection to the same accident, and are
not sufficiently similar to gain any benefit from litigating them together.”).
State Farm thus did not seek to establish that Plaintiff had “no reasonable procedural
basis to join [Davis and Horizon] in one action” with State Farm, as would be required to
demonstrate procedural misjoinder. See Lafalier v. State Farm Fire and Cas. Co., 391 F. App’x
732, 739 (10th Cir. 2015) (emphasis added).5 Rather, State Farm urged the state court to find
good grounds to impose a permissive, discretionary severance. Stated otherwise, State Farm’s
argument was not that Davis and Horizon could not have been joined in the State Court Action,
but rather that they should not have been.
In light of this record, the court finds Plaintiff’s argument for remand based on his own
5 The court observes that Plaintiff has made no attempt to show that he satisfied this standard
and, in any event, the Tenth Circuit specifically declined to adopt the procedural misjoinder
doctrine in Lafalier. See 391 F. App’x at 739 (“There may be many good reasons to adopt
procedural misjoinder . . . [b]ut we need not decide that issue today.”); see also Parson v.
Johnson & Johnson, 749 F.3d 879, 893 (10th Cir. 2014) (declining to decide whether to
recognize the doctrine of fraudulent misjoinder of plaintiffs to circumvent diversity jurisdiction,
which “has not yet been adopted within this circuit”).
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supposedly fraudulent misjoinder of Davis and Horizon wholly irrelevant to the removal
question. Plaintiff points the court to no authority supporting a different assessment. In the cases
he references, the removing parties—unlike State Farm here—affirmatively invoked the
misjoinder doctrine in seeking removal. See, e.g., Boyd v. Blue Cross & Blue Shield of
Oklahoma, No. CIV-21-0690-HE, 2022 WL 19239784, at *1 (W.D. Okla. Jan. 5, 2022) (noting
that the defendant “invokes the doctrine of procedural misjoinder, which has been applied to
permit removal where a plaintiff’s claims against a diverse defendant are joined in the same suit
with claims against a non-diverse defendant, and no reasonable procedural basis exists for the
joinder”); Greer v. State Farm Fire & Cas. Co., No. CIV-19-378-PRW, 2019 WL 2578087, at
*1 (W.D. Okla. June 24, 2019) (“State Farm argues, however, that removal was proper because
the claim against the non-diverse Defendant Kawero was fraudulently misjoined.”); Rowan v.
State Farm Fire & Cas. Co., No. CIV-18-109-C, 2018 WL 1426358, at *1 (W.D. Okla. Mar. 22,
2018) (“Defendant State Farm subsequently filed a Notice of Removal to this Court asserting
that Plaintiffs engaged in fraudulent misjoinder in an effort to defeat diversity jurisdiction.”);
Jones v. Masterson, No. 17-cv-00188-RBJ, 2017 WL 2532044, at *1 (D. Colo. June 12, 2017)
(D. Colo. June 1, 2017) (“Encompass’s Notice of Removal invokes the “procedural-misjoinder
doctrine.”); Ullman v. Safeway Ins. Co., 995 F. Supp. 2d 1196, 1208 (D.N.M. 2013) (“Ullman
asserts that Safeway Insurance’s sole remaining basis for removal is procedural misjoinder,
which she argues the Tenth Circuit has not adopted; even if the Tenth Circuit recognized the
doctrine, she argues that she did not misjoin Bailey in this case.”); Bunnell v. Oklahoma MH
Props., LP, No. CIV-12-372-R, 2012 WL 12863916, at *1 (W.D. Okla. May 11, 2012) (“Finally,
[the removing defendants] assert that the Oklahoma Defendants were fraudulently misjoined.”).
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Plaintiff, however, cites no precedent in which a federal court ordered remand based on a
plaintiff’s post hoc confession—with no affirmative agreement from a defendant—that he
fraudulently joined a non-diverse party more than thirty days before the defendant filed a notice
of removal, and the supposedly fraudulent joinder was not the basis for the defendant’s removal.
Respectfully, to merely state the proposition is to appreciate the illogic underlying it. This court
has located no case holding that State Farm had a duty or obligation to proactively remove a case
involving facially non-diverse parties based on an unconfirmed joinder defect on Plaintiff’s end.
Cf. Alvarado v. New England Motor Freight, Inc., No. 18CV2027SJRML, 2018 WL 4043151, at
*2 (E.D.N.Y. Aug. 24, 2018) (“Put another way, a ‘defendant need not guess as to whether the
Plaintiff’s claim reaches the $75,000 threshold for . . . diversity jurisdiction purposes, and may
wait to file a notice of removal until the Plaintiff provides specific information about the amount
in controversy.’”) (quoting Moltner v. Starbucks Coffee Co., No. 08 civ. 9257(LAP)(AJP), 2009
WL 510879, at *1 (S.D.N.Y. June 18, 2007)).
State Farm properly waited to seek removal when it was made “clear and unequivocal”
that Davis and Horizon had settled and there was complete diversity among the remaining
parties. See Akin, 156 F.3d at 1036. That happened, at the earliest, on March 4, 2025, with
Davis’s and Horizon’s representation by their legal counsel in the State Court Action that
“[c]laims between these Defendants and Plaintiff have resolved.”6 ECF No. 1-6 at 1; cf.
Castaneda, 2025 WL 1201751, at *3 (concluding that even a notice of settlement was
6 Even if the February 11, 2025 email from Davis’s and Horizon’s counsel, ECF No. 1 ¶ 20,
were sufficient to have provided the requisite notice under § 1446(b)(3), State Farm’s removal
on March 5, 2025, would have been timely.
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insufficient to trigger the thirty-day window for removal where the noticed stated that a
settlement had been reached and that “[d]ismissal papers will be filed after the settlement
Release is executed and the funds are received by Plaintiff”: “In other words, the notice of
settlement indicated that further steps were required for the settlement to be finalized.”). State
Farm’s Notice of Removal was timely.
II. 	State Farm’s Motion to Sever Was Not a “Paper” Under § 1446(b)(3).
Plaintiff next argues that even if the case was not removable upon service, it was
necessarily removable by December 12, 2024—thirty days after State Farm filed its motion to
sever. ECF No. 48 at 15. The motion to sever, Plaintiff contends, “is just the sort of ‘motion . . .
or other paper’ contemplated and covered by 28 U.S.C. § 1446(b)(3).” Id. Again, the court must
respectfully reject the proposition that State Farm’s own motion to sever constitutes a “paper
from which it may first be ascertained that the case is one which is or has become removable.”
See id.
To be sure, “[f]ederal courts have given the reference to ‘other paper’ an expansive
construction and have included a wide array of documents within its scope.” State Farm Fire &
Cas. Co. v. Valspar Corp., 824 F. Supp. 2d 923, 933 (D.S.D. 2010) (alterations omitted) (quoting
14C Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 3731 (4th ed.
2009)). However, under the plain language of § 1446(b)(3), State Farm’s own motion cannot
serve as an “other paper.” As the statute states, “a notice of removal may be filed within thirty
days after receipt by the defendant, through service or otherwise, of a copy of an amended
pleading, motion, order or other paper . . ..” 28 U.S.C. § 1446(b)(3) (emphasis added). It is self-
evident that State Farm did not “receive” its own motion, either from Plaintiff or some other
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outside source, and therefore this document cannot serve as an “other paper” triggering the
thirty-day removal period. See Tolloty v. Republic Servs., Inc., No. 5:11CV1644, 2012 WL
529881, at *4 (N.D. Ohio Feb. 17, 2012) (holding that because “Defendants did not receive their
own motions or letter . . . these documents are not ‘other papers’ pursuant to the removal statute
and cannot serve [as] the basis of triggering the thirty-day removal time limit”).
Furthermore, as State Farm emphatically argued in the motion to sever, the State Court
Action was not one “which is or has become removable” and that—absent some action by the
state court—the case could not become removable. That was the whole purpose of the motion to
sever: to break the then-existing diversity-of-citizenship roadblock, created by the presence of
Colorado citizens Davis and Horizon in the State Court Action, that “prevented [State Farm]
from removing to federal court, where the case against it should be[.]” See ECF No. 1-45 at 2
(emphasis added). In other words, State Farm sought the intervention of the state court not
because the action was or had become removable, but for precisely the opposite reason: because
the case was not removable at that juncture. Far from providing “clear and unequivocal” notice
of removability, the motion served to notify all concerned that State Farm needed the
intervention of the state court to “allow the State Farm Defendants to remove this case to federal
court, where it should be.” See id. at 6.
In short, there is no logical way to construe the motion to sever as an “other paper from
which it may first be ascertained that the case is one which is or has become removable,”7 and
7 This court can imagine that any attempt by State Farm to remove the State Court Action, with
its then-existing cast of non-diverse parties when the motion to sever was filed, would have
elicited a vigorous objection from Plaintiff.
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nothing in the motion to sever established the filing date of that motion as the starting point for
the running of the thirty-day clock in § 1446(b)(3).
III. 	State Farm Did Not Waive its Right to Remove by Litigating in the State Court.
Finally, Plaintiff’s argument that State Farm waived its right to seek removal by
participating in the litigation of the State Court Action warrants only brief attention, resting as it
does on the factually-flawed premise that “State Farm was clearly aware of the above
removability of the matter.” See ECF No. 48 at 14-15. For the reasons detailed above, it is
apparent from the record that State Farm clearly was not aware of “the removability of the
matter” and, indeed, was decidedly of the view that it was impossible for it to have sought
removal at any earlier point than it did.
Setting aside, for purposes of argument only, this fundamental defect in Plaintiff’s waiver
argument, the record here evinces no willing intention by State Farm to litigate in the state court.
“Generally, a defendant waives removal by taking some substantial offensive or defensive action
in the state court action indicating a willingness to litigate in that tribunal before filing a notice of
removal with the federal court.” City of Albuquerque v. Soto Enters., Inc., 864 F.3d 1089, 1098
(10th Cir. 2017) (internal quotation marks and quotation omitted). Critically, “[t]his waiver must
be clear and unequivocal, meaning that short of the defendant seeking an adjudication on the
merits, the right to removal is not lost.” Id. (cleaned up). Filing a motion to dismiss in state court
“manifests a ‘clear and unequivocal’ intent to submit the case to the state court’s jurisdiction, and
thus waives removal.” Id. at 1099. But filing an answer does not. See id. at 1098 (citing Fed. R.
Civ. P. 81(c)(2) (“A defendant who did not answer before removal must answer or present other
defenses or objections under these rules[.]”). Here, as previously noted, State Farm filed an
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answer in the State Court Action, not a dispositive motion under Federal Rule of Civil Procedure
12(b)(6). ECF No. 1-31 (ECF No. 4 in the instant matter).
In answering the Complaint, State Farm exhibited no “clear and unequivocal” intention to
submit to the jurisdiction of the state court. Nor is there any other evidence in the record
manifesting an unambiguous choice by State Farm to continue to litigate the merits of its
defenses in the State Court Action. State Farm’s removal of the case to this court within twenty-
four hours of the notice of settlement with the non-diverse defendants precludes any finding that
State Farm possessed a clear and unequivocal intention to continue to litigate this action in the
state forum.
Plaintiff’s waiver argument accordingly fails as a matter of law.
* 	* 	*
The plain language of § 1446(b)(3) required State Farm to remove the case after it “ha[d]
become removable.” To satisfy that requirement, Davis and Horizon must no longer have been
parties to the case or their dismissal must have become inevitable. Castaneda, 2025 WL
1201751, at *3 (citations omitted). The court finds that the notice of settlement between Plaintiff
and Davis and Horizon, ECF No. 1-6, was the earliest notification to State Farm that the case
was or had become removable under § 1446(b)(3). The thirty-day period therefore began to run,
at the earliest, on the date that the non-diverse defendants notified the state court of their
impending dismissal. This record confirms that State Farm’s removal was timely.
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CONCLUSION
For the foregoing reasons, the undersigned respectfully RECOMMENDS that Plaintiff’s
Motion to Remand (ECF No. 48) be DENIED. 8
DATED: February 17, 2026 	BY THE COURT:
______________________________
Susan Prose
United States Magistrate Judge
8 Rule 72 of the Federal Rules of Civil Procedure provides that within fourteen (14) days after
service of a Magistrate Judge’s order or recommendation, any party may serve and file written
objections with the Clerk of the United States District Court for the District of Colorado. 28 U.S.C.
§§ 636(b)(1)(A), (B); Fed. R. Civ. P. 72(a), (b). Failure to make any such objection will result in
a waiver of the right to appeal the Magistrate Judge’s order or recommendation. See Sinclair Wyo.
Ref. Co. v. A & B Builders, Ltd., 989 F.3d 747, 783 (10th Cir. 2021) (firm waiver rule applies to
non-dispositive orders); but see Morales-Fernandez v. INS, 418 F.3d 1116, 1119, 1122 (10th Cir.
2005) (firm waiver rule does not apply when the interests of justice require review, including when
a “pro se litigant has not been informed of the time period for objecting and the consequences of
failing to object”).
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