Opinion
Civil Action No. 1:19-cv-01222-RM-KMT
2020-08-31
Safi Darrell DONA'T, Plaintiff, v. AMAZON.COM/KINDLE, Amazon Book, and Monique Hall, MBP Publications, Defendants.
ORDER
This matter is before the Court on a motion for summary judgment by Defendant Amazon.com/Kindle, Amazon Book ("Amazon") (ECF No. 60), a motion for relief under Fed. R. Civ. P. 56(d) by Plaintiff (ECF No. 69), a recommendation to dismiss Defendant Monique Hall, MBP Publications ("Hall") by United States Magistrate Judge Kathleen M. Tafoya (ECF No. 85), and a motion for administrative closure by Plaintiff (ECF No. 92). Plaintiff has filed objections to the magistrate judge's recommendation and to two orders on nondispositive motions (ECF No. 96). For the reasons below, the Court grants summary judgment in favor of Defendant Amazon, overrules Plaintiff's objections, accepts and adopts the recommendation, and denies both of Plaintiff's motions.
I. BACKGROUND
According to the complaint, Plaintiff, a federal prisoner, wrote and copyrighted a book manuscript and then sent it to Hall and other publishers in 2008. Hall's publishing company agreed to publish the book but neglected to do so for years, while also ignoring his requests to return the manuscript. In 2017, Plaintiff learned the book was being sold on Amazon's website as an e-book. Plaintiff alleges he has received no royalties or other compensation for the book and that Hall has ignored his letters attempting to negotiate the matter and a cease-and-desist letter.
Plaintiff filed this copyright infringement action against Hall and Amazon in April 2019, alleging that his book was being sold and distributed without his consent. He seeks $100,000 from each Defendant "and all profits and royalties, actual damages, court fees, attorney fees, (if attorney is granted by court) and statutory damages." (ECF No. 10 at 4.) He also states that he would "be more than willing to arbitrate with all defendants to peacefully resolve this issue." (Id. ) Plaintiff alleges that Amazon does not have a system in place to verify copyright owners’ consent to sales, but also states in his complaint that he does not believe Amazon willfully acted to infringe. (Id. at 4-5.) He further alleges that Defendants changed the name of his book without his consent and may have changed its contents. (Id. at 5.)
II. DISCUSSION
A. Motion for Summary Judgment
Summary judgment is appropriate only if there is no genuine dispute of material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a) ; Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ; Stone v. Autoliv ASP, Inc. , 210 F.3d 1132, 1136 (10th Cir. 2000) ; Gutteridge v. Oklahoma , 878 F.3d 1233, 1238 (10th Cir. 2018). Applying this standard requires viewing the facts in the light most favorable to the nonmoving party and resolving all factual disputes and reasonable inferences in its favor. Cillo v. City of Greenwood Vill. , 739 F.3d 451, 461 (10th Cir. 2013). "The mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Scott v. Harris , 550 U.S. 372, 380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007) (citation omitted). A fact is "material" if it pertains to an element of a claim or defense; a factual dispute is "genuine" if the evidence is so contradictory that if the matter went to trial, a reasonable jury could return a verdict for either party. Anderson , 477 U.S. at 248, 106 S.Ct. 2505.
Under the safe harbor provision of the Digital Millennium Copyright Act of 1988 ("DMCA"), a service provider such as Amazon may not be held liable for copyright infringement if it (1) does not have actual or apparent knowledge that the material is infringing, and (2) upon obtaining such knowledge, acts expeditiously to remove, or disable access to, the material. See 17 U.S.C. § 512(c). Amazon argues it is entitled to summary judgment because Plaintiff failed to provide it with any notice of infringement and because it removed the relevant listings two days after it was served a copy of the complaint, in September 2019, which is when it first because aware of the alleged infringement. Amazon also argues that third-party publishers such as Hall's company are contractually obligated to obtain any and all necessary clearances and licenses for anything they publish via Amazon's website. However, the Court need not address this latter argument because Amazon's lack of liability turns on the absence of any admissible evidence that Amazon ever received notice of infringement before Plaintiff filed this lawsuit.
In his objection to Amazon's motion for summary judgment, Plaintiff contends for the first time that he "wrote Amazon two letters in early May of 2019 informing them of the infringing material and copyright" and, in support of this contention, states that he "intend[s] to show through discovery, from the prison legal logs, that record all outgoing legal mail, that [he] mailed two letters to Amazon informing them of the infringement, and that there was a ‘willful blindness’ to delay removal for 4 1/2 months until complaint was filed." (ECF No. 65 at 2-3.) Plaintiff also contends that there is a genuine issue of material fact as to whether he granted a license to Defendants to use his copyrighted material. That contention is contrary to the allegations in the complaint, where Plaintiff alleged that he did not believe Amazon acted willfully, but even assuming no such license was ever granted by Plaintiff, the absence of any evidence in the record to support his belated contention that he notified Amazon about the alleged infringement in May 2019 is fatal to his claim.
Amazon has adduced evidence in the form of a declaration by one of its managers that it searched its records and "did not find any notices of infringement related to Plaintiff's work." (ECF No. 61 at 4.) Meanwhile, Plaintiff has adduced no evidence to support his contention that Amazon was aware of the alleged infringement before September 2019. Plaintiff's unsupported contention that he sent two letters to Amazon in May 2019 is insufficient to raise a genuine issue as to whether Amazon received notice of the alleged infringement before this lawsuit was filed. Even if he could produce evidence of having sent the letters, he has also failed to adduce any evidence that they provided adequate notice under the requirements of the DMCA. In the absence of evidence to support Plaintiff's contention that he notified Amazon about the alleged infringement sooner, there is no genuine issue as to whether Amazon received notice of the alleged infringement before he filed this lawsuit.
The DMCA's safe harbor will be denied to a service provider that (1) "has the right and ability to control" infringing activity and (2) received "a financial benefit directly attributable to the infringing activity." 17 U.S.C. § 512(c)(1)(B) ; see also Ellison v. Robertson , 357 F.3d 1072, 1076 (9th Cir. 2004) ("A defendant is vicariously liable for copyright infringement if he enjoys a direct financial benefit from another's infringing activity and has the right and ability to supervise the infringing activity." (quotation omitted)). Plaintiff argues that Amazon cannot rely on the DMCA's safe harbor provision because it receives a direct financial benefit from its infringing activity, but he has not pointed to any evidence that Amazon has the right and ability to control the allegedly infringing activity. "[I]n order to have the right and ability to control, the service provider must exert substantial influence on the activities of users." UMG Recordings, Inc., v. Shelter Capital Partners, LLC , 718 F.3d 1006, 1030 (9th Cir. 2013) (quotation omitted). Substantial evidence may include high levels of control over activities of users or purposeful conduct. See id. Plaintiff has pointed to evidence of neither. Nor has he identified any act or decision by Amazon that led to the alleged infringement. See BWP Media USA, Inc. v. Clarity Digital Grp. , LLC , 820 F.3d 1175, 1181 (10th Cir. 2016).
Finally, Plaintiff also contends that he has yet to receive any notice of takedown except in Amazon's answer to his complaint in this case. But he cites no authority for the proposition that such notice is required, or that the lack of such notice would preclude Amazon from the DMCA's safe harbor.
Therefore, Amazon is entitled to summary judgment on Plaintiff's claim.
B. Rule 56(d) Motion
In a last-ditch attempt to support his contention that he sent two letters to Amazon in May 2019, Plaintiff filed a motion for relief pursuant to Fed. R. Civ. P. 56(d). That rule provides as follows:
If a nonmovant shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition, the court may:
(1) defer considering the motion or deny it;
(2) allow time to obtain affidavits or declarations or to take discovery; or
(3) issue any other appropriate relief.
However, the Court finds that the rule does not provide a basis for denying Amazon's motion for summary judgment. As discussed above, even if Plaintiff could show that the letters were sent, he has adduced no evidence as to their content or whether Amazon received them. Moreover, Plaintiff offers no explanation for why he has no receipt or record of the "two certified mail receipt letters" he asserts Amazon received. (ECF No. 69 at 2.) Therefore, the Court denies Plaintiff's request for relief pursuant to Fed. R. Civ. P. 56(d).
In the alternative, Plaintiff asks that the Court order a Martinez report. See Martinez v. Aaron , 570 F.2d 317 (10th Cir. 1978). Such reports may be prepared by prison officials for courts when prison officials are sued by inmates. See, e.g. , Hayes v. Marriott , 70 F.3d 1144, 1145 (10th Cir. 1995). Notwithstanding the lack of precedent for ordering such a report in a copyright case such as this one at the summary judgment stage, Plaintiff has not shown that ordering one here is "necessary for the orderly consideration of the issues." Martinez , 570 F.2d at 319. Accordingly, the Court denies this request.
C. Recommendation to Dismiss
In March 2020, the magistrate judge issued an order to show cause why the claim against Hall, who had not yet been served, should not be dismissed without prejudice. See Fed. R. Civ. P. 4(m) (setting forth a ninety-day deadline for service once the complaint is filed). The order to show cause outlined the various attempts made by the United States Marshal Service to carry out service at two different addresses provided by Plaintiff and reminded Plaintiff that, even though he was granted leave to proceed in forma pauperis, service was ultimately his responsibility. (ECF No. 73 at 2.) In the recommendation, the magistrate judge determined that Plaintiff had still failed to serve Hall or provide sufficient contact information for the United States Marshal Service to do so and that he had not shown good cause to extend the deadline further. In his objections to the recommendation, Plaintiff states that "if [he] cannot serve Monique Hall within the next 90 days, [he] will indeed find it futile to continue [his] attempts to serve Defendant Monique Hall and capitulate to a dismissal without prejudice as to that Defendant (Monique Hall)." (ECF No. 96 at 7.) More than ninety days have passed since Plaintiff filed his objection, and Hall has still not been served. Accordingly, the Court accepts the recommendation to dismiss without prejudice the claims against Hall.
D. Motion to Administratively Close the Case
Based on the preceding determinations of this Court, Plaintiff's motion requesting administrative closure of his case (ECF No. 92) is now moot.
E. Objections on Nondispositive Matters
In his objections to the magistrate judge's recommendation, Plaintiff also objects to the magistrate judge's rulings on two nondispositive motions—a Motion for Court to Grant Plaintiff a Private Process Server to Serve Process on Monique Hall (ECF No. 75) and a Motion for Appointment of Counsel (ECF No. 76). This Court can modify or set aside a magistrate judge's order on a nondispositive matter only if it is clearly erroneous or contrary to law. 28 U.S.C. § 636(b)(1)(A) ; Fed. R. Civ. P. 72(a) ; Hutchinson v. Pfeil , 105 F.3d 562, 566 (10th Cir. 1997). The Court must have "a definite and firm conviction that a mistake has been committed." Ocelot Oil Corp. v. Sparrow Indus. , 847 F.2d 1458, 1464 (10th Cir. 1988) (quotation omitted).
With respect to both of the motions at issue here, the magistrate judge had discretion to grant the relief requested. The reasons stated in the order are sound, and Plaintiff has not shown any reason why the Court should have a definite and firm conviction that any mistake was made. Nor does Plaintiff provide any basis for concluding that the orders are clearly erroneous or contrary to law. Accordingly, the Court overrules Plaintiff's objections.
III. CONCLUSION
For the reasons above, the Court (1) GRANTS Amazon's motion for summary judgment (ECF No. 60), (2) DENIES Plaintiff's motion for relief under Fed. R. Civ. P. 56(d) (ECF No. 69), OVERRULES Plaintiff's objections (ECF No. 96), ACCEPTS and ADOPTS the magistrate judge's recommendation to dismiss without prejudice the claims against Hall (ECF No. 85), and DENIES AS MOOT Plaintiff's motion for administrative closure. The Clerk is directed to ENTER JUDGMENT in Amazon's favor and CLOSE this case.
ORDER AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Kathleen M. Tafoya, Magistrate Judge
This case is before the court on the following matters: (1) Plaintiff's Response to the Order to Show Cause, which was issued by this court on March 19, 2020; (2) Plaintiff's "Motion for Court to Grant Plaintiff a Private Process Server to Serve Process on Monique Hall;" and (3) Plaintiff's "Motion for Appointment of Counsel." (Doc. Nos. 73, 75-77.)
I. ORDER TO SHOW CAUSE
Pro se Plaintiff Safi Darrell Dona't, an inmate at the United States Penitentiary, Administrative Maximum ["ADX"] facility in Florence, Colorado, commenced this copyright infringement lawsuit on April 25, 2019. (Doc. No. 1.) On May 13, 2019, Plaintiff filed his Amended Prisoner Complaint, which named Defendants Amazon.com/kindle, Amazon Book, and Monique Hall. (Doc. No. 10.) To date, service has not been effectuated upon Monique Hall. It is now well past the ninety-day deadline for service.
Mindful of Plaintiff's pro se status, the court "review[s] his pleadings and other papers liberally and hold[s] them to a less stringent standard than those drafted by attorneys." Trackwell v. United States , 472 F.3d 1242, 1243 (10th Cir. 2007) (citations omitted); see Haines v. Kerner , 404 U.S. 519, 520–21, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972) (holding the allegations of a pro se complaint "to less stringent standards than formal pleadings drafted by lawyers").
Amazon.com/kindle and Amazon Books were both served on September 30, 2019. (Doc. Nos. 31-32.)
Plaintiff was granted leave to proceed in forma pauperis ["IFP"], which entitles him to rely on the United States Marshals Service to carry out service. See 28 U.S.C. § 1915(d) ; Fed. R. Civ. P. 4(c)(3). The United States Marshal Service has made numerous attempts to personally serve Monique Hall at two different addresses provided by Plaintiff. (See Doc. Nos. 48, 71, 78.) On March 19, 2020, this court ordered Plaintiff to show cause why his claims against Monique Hall should not be dismissed, pursuant to Federal Rule of Civil Procedure 4(m), for lack of service. (Doc. No. 73.) Plaintiff was warned that his failure to respond and show cause for his failure to properly serve Monique Hall would result in this court issuing a recommendation to dismiss his claims against that defendant. (Id. at 2-3.)
On March 30, 2020, Plaintiff filed a Response to the Order to Show Cause, insisting that he has "expended the utmost resources, time and energy to diligently prosecute and assist the courts and U.S. Marshal Service to serve process on Monique Hall." (Doc. No. 77 at 1.) Plaintiff states that he has "incorporated family members" into the search for Monique Hall, who he claims has "constantly provided false information" to "avoid service." (Id. )
Federal Rule of Civil Procedure 4(m) provides that:
[i]f a defendant is not served within 90 days after the complaint is filed, the court—on motion or on its own after notice to the plaintiff—must dismiss the action without prejudice against the defendant or order that service be made within a specified time. But if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period.
Fed. R. Civ. P. 4(m). In this case, nearly one year has passed since Plaintiff filed his Amended Complaint, which named Monique Hall as a defendant. (See Doc. No. 10.) Pursuant to Rule 4(m), the deadline for service on Monique Hall has long expired. To date, Plaintiff has not provided adequate information to enable the United States Marshal Service to serve Monique Hall, despite warnings from this court regarding the consequences of his failure to provide a service address for that defendant. At this stage in the proceedings, it is clear that Plaintiff will not provide the necessary information to effect service upon Monique Hall.
As the court explained in its previous Order to Show Cause, even though Plaintiff is a pro se inmate, proceeding in forma pauperis , he must still comply with the same rules of procedure governing other litigants, including Rule 4. DiCesare v. Stuart , 12 F.3d 973, 980 (10th Cir. 1993) ; see Dawson v. Rios , No. CIV-17-1311-G, 2019 WL 4773820, at *2 (W.D. Okla. Sept. 30, 2019) ("Plaintiff's pro se , inmate status alone does not provide good cause to extend the ninety-day service deadline."). The prosecution of this lawsuit, including service on the defendants, is ultimately Plaintiff's responsibility. See Fields v. Okla. State Penitentiary , 511 F.3d 1109, 1113 (10th Cir. 2007) ("It is the Plaintiff's responsibility to provide the United States Marshal with the address of the person to be served[.]"); Pemberton v. Patton , 673 F. App'x 860, 864 (10th Cir. 2016) (unpublished) ("[T]he Marshals service is not responsible for lack of service where a plaintiff does not provide correct information required for service.").
Although the court may extend the time for a plaintiff to serve a defendant, even without a showing of good cause, the court is not inclined to do so here. See Espinoza v. United States , 52 F.3d 838, 840-41 (10th Cir. 1995). The case against Defendant Monique Hall has been pending since April 2019. (See Doc. No. 1.) Plaintiff has failed to effect service of Monique Hall within ninety days of her inclusion in this case, failed to provide sufficient contact information for the United States Marshal Service to do so, and failed to provide good cause for the court to find that an opportunity exists to cure the service deficiency in the future. Further, Plaintiff was warned, in advance, that the penalty for the failure to serve, or to provide good cause for the service delay, would be the dismissal of his claims against Monique Hall. (Doc. No. 73 at 2-3.) Regardless of Plaintiff's desire to keep Monique Hall in this case, and to have that individual answer the claims asserted against her, neither goal can be accomplished without service. Therefore, because the facts and circumstances in this case do not support a permissive extension of time to serve, the Order to Show Cause is made absolute.
II. MOTION TO APPOINT PRIVATE PROCESS SERVER
Plaintiff has filed two motions related to the service of Monique Hall. (Doc. Nos. 75-76.) In the first motion, Plaintiff implores the court to appoint a private process server to effectuate service upon Monique Hall. (Doc. No. 75.) Plaintiff contends that Monique Hall has "evad[ed] service" by providing him with service addresses that she "knew were false and deceptive." (Id. at 1.) Plaintiff argues that Monique Hall is "the most essential component" of his case, and he emphasizes that he faces a looming statute of limitations deadline as to his claims against that defendant. (Id. at 2.) However, Plaintiff offers no explanation as to why a private process server would have any greater success in effectuating service upon Monique Hall than the United States Marshal Service has thus far. Therefore, the court finds that the motion should be denied.
III. MOTION TO APPOINT COUNSEL
In his second motion, Plaintiff ask the court, once again, to appoint a pro bono attorney to represent him in this case. (Doc. No. 76.) The determination as to whether to appoint counsel in a civil case is left to the sound discretion of the district court. Rucks v. Boergermann , 57 F.3d 978, 979 (10th Cir. 1995). The court must "give careful consideration to all the circumstances with particular emphasis upon certain factors that are highly relevant to a request for counsel." Id. (quoting McCarthy v. Weinberg , 753 F.2d 836, 838 (10th Cir. 1985) ). Those factors include: "the merits of the litigant's claims, the nature of the factual issues raised in the claims, the litigant's ability to present his claims, and the complexity of the legal issues raised by the claims." Id. (quoting Williams v. Meese , 926 F.2d 994, 996 (10th Cir. 1991) ). "The burden is on the applicant to convince the court that there is sufficient merit to his claim to warrant the appointment of counsel." Hill v. SmithKline Beecham Corp. , 393 F.3d 1111, 1115 (10th Cir. 2004) (quoting McCarthy , 753 F.2d at 838 ). "Only in those extreme cases where the lack of counsel results in fundamental unfairness will the district court's decision be overturned." Id. (quoting McCarthy , 753 F.2d at 839 ).
Plaintiff previously filed a motion to appoint counsel on June 25, 2019. (Doc. No. 19.) That motion was denied on July 17, 2019. (Doc. No. 23.)
Pursuant to the Local Rules of Practice of the United States District Court for the District of Colorado-Attorney, the following unrepresented parties are eligible for the appointment of pro bono counsel: (1) a party who has been granted leave to proceed in forma pauperis under 28 U.S.C. § 1915 ; (2) an unrepresented prisoner; and (3) a non-prisoner, unrepresented party who demonstrates limited financial means. D.C.COLO.LAttyR 15(e). In addition to eligibility, the court applies the following factors and considerations to evaluate a motion for the appointment of counsel in a civil case: (1) the nature and complexity of the action; (2) the potential merit of the pro se party's claims; (3) the demonstrated inability of the unrepresented party to retain an attorney by other means; and (4) the degree to which the interests of justice will be served by the appointment of counsel, including the benefit the court may derive from the assistance of the appointed counsel. D.C.COLO.LAttyR 15(f)(1)(B).
In this case, Plaintiff asserts claims for copyright infringement against Defendants Amazon.com/kindle, Amazon Book, and Monique Hall. (Doc. No. 10 at 1-4.) Plaintiff alleges, specifically, that Defendants infringed his copyright in the novel, "Penitentiary Gangsters," by publishing and distributing unauthorized copies of the work. (Id. at 4-5.) As relief, Plaintiff requests monetary damages only. (Id. at 10.) Plaintiff's claims are neither novel, nor complex, and he has relayed the substance of his claims effectively thus far.
In support of his most recent request for the appointment of counsel, Plaintiff states that his case "involves many witnesses from five different states, [who] may need to be subpoenad [sic] for evidence and statements of record." (Doc. No. 76 at 2.) Plaintiff also stresses that it has "proven difficult" to serve Monique Hall. (Id. ) According to Plaintiff, the "nature of complexity" in this case "has been proven to be great just based on the most simple assumptions at worse [sic] and the depth of the forces against me at best, starting with my lack of knowledge of law, to even being able to have process served on the main figure of this suit, who is hiding in plain sight." (Id. at 3.) Plaintiff insists that, without appointed counsel, he "will continue to have legal mail delayed by institutional ineptness that the courts are reluctant to enforce since the ADX is not a defendant in this suit." (Id. at 3-4.) The court finds each of these arguments to be unavailing. See D.C.COLO.LAttyR 15(f)(1)(B). In addition, the court does not see any benefit that it may derive from the assistance of appointed counsel. On balance, therefore, the court does not find the appointment of counsel to be warranted.
To the extent Plaintiff argues that ADX officials are withholding or delaying his receipt of legal correspondence, that is not a valid reason to appoint counsel. Further, the court lacks jurisdiction over nonparties, and declines to interfere with day-to-day prison administration.
Accordingly, it is
ORDERED that the "Motion for Court to Grant Plaintiff a Private Process Server to Serve Process on Monique Hall" (Doc. No. 75) is DENIED . It is further
ORDERED that the "Motion for Appointment of Counsel" (Doc. No. 76) is DENIED . It is further
ORDERED that the Order to Show Cause (Doc. No. 73) is made ABSOLUTE . This court respectfully
RECOMMENDS that the claims against Defendant Monique Hall be DISMISSED without prejudice pursuant to Federal Rule of Civil Procedure 4(m).
ADVISEMENT TO THE PARTIES
Within fourteen days after service of a copy of the Recommendation, any party may serve and file written objections to the Magistrate Judge's proposed findings and recommendations with the Clerk of the United States District Court for the District of Colorado. 28 U.S.C. § 636(b)(1) ; Fed. R. Civ. P. 72(b) ; In re Griego , 64 F.3d 580, 583 (10th Cir. 1995). 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. "[A] party's objections to the magistrate judge's report and recommendation must be both timely and specific to preserve an issue for de novo review by the district court or for appellate review." United States v. One Parcel of Real Prop. Known As 2121 East 30th Street, Tulsa, Okla. , 73 F.3d 1057, 1060 (10th Cir. 1996). Failure to make timely objections may bar de novo review by the district judge of the magistrate judge's proposed findings and recommendations and will result in a waiver of the right to appeal from a judgment of the district court based on the proposed findings and recommendations of the magistrate judge. See Vega v. Suthers , 195 F.3d 573, 579-80 (10th Cir. 1999) (a district court's decision to review a magistrate judge's recommendation de novo despite the lack of an objection does not preclude application of the "firm waiver rule"); One Parcel of Real Prop. , 73 F.3d at 1059-60 (a party's objections to the magistrate judge's report and recommendation must be both timely and specific to preserve an issue for de novo review by the district court or for appellate review); Int'l Surplus Lines Ins. Co. v. Wyo. Coal Ref. Sys., Inc. , 52 F.3d 901, 904 (10th Cir. 1995) (by failing to object to certain portions of the magistrate judge's order, cross-claimant had waived its right to appeal those portions of the ruling); Ayala v. United States , 980 F.2d 1342, 1352 (10th Cir. 1992) (by their failure to file objections, plaintiffs waived their right to appeal the magistrate judge's ruling); but see, Morales-Fernandez v. INS , 418 F.3d 1116, 1122 (10th Cir. 2005) (firm waiver rule does not apply when the interests of justice require review).