Opinion
Civil Action 20-cv-03644-CNS-STV
03-06-2024
STEVEN FARABAUGH, Plaintiff, v. ISLE, INC.; and ISLE UTILITIES LTD., Defendants.
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
SCOTT T. VARHOLAK UNITED STATES MAGISTRATE JUDGE
This matter comes before the Court on Plaintiff's Motion for Leave to Conform Plaintiff's Third Amended Complaint to the Evidence [#110] (the “Motion”). The Motion has been referred to this Court. [#111] The Court has carefully considered the Motion and related briefing, the entire case file, the applicable case law, and the arguments from the February 1, 2024 motions hearing [#128]. For the following reasons, this Court respectfully RECOMMENDS that the Motion be DENIED.
I. PROCEDURAL BACKGROUND
Plaintiff Steven Farabaugh initiated this action on December 11, 2020. [#1] Plaintiff asserted two causes of action under both Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (“Title VII”), and the Colorado Anti-Discrimination Act, Colo. Rev. Stat. § 24-34-401, et seq. (“CADA”): (1) harassment and discrimination on the basis of national origin [id. at ¶¶ 64-75], and (2) retaliation [id. at ¶¶ 76-83]. Plaintiff asserted these claims against the following Defendants: Isle, Inc.; Isle Group; Isle Group UK; and Isle Utilities. [Id. at ¶¶ 2-4] Plaintiff alleged that “Isle, Inc., Isle Group UK, and Isle Utilities are wholly-owned subsidiaries of Isle Group.” [Id. at ¶ 4] On March 5, 2021, Defendant Isle, Inc. filed a motion to dismiss Plaintiff's Title VII claims, arguing that Isle, Inc. does not meet Title VII's 15-employee requirement and therefore could not be considered an “employer” under Title VII. [See #17 at 1-2] Isle, Inc. asserted that “Isle Group UK and Isle Group . . . are not corporate entities, but are trade names or d/b/a names for ‘Isle Group Limited.'” [Id. at 3; see also id. at 2 n.1] Isle, Inc. further stated that Isle Utilities “does not exist as a corporate entity” and was a “non-existent entity.” [Id. at 3-4]
On March 25, 2021, Plaintiff filed his First Amended Complaint, thereby mooting Isle, Inc.'s motion to dismiss. [## 23, 24] Plaintiff asserted the same two claims [#24 at ¶¶ 77-96], but now against the following Defendants: Isle, Inc.; Isle Group Ltd.; Isle Group, UK; and Isle Utilities Ltd. [id. at ¶¶ 2-4]. Plaintiff alleged that “Isle, Inc., Isle Group, UK, and Isle Utilities Ltd. are wholly-owned subsidiaries of Isle Group Ltd.” [Id. at ¶ 4] On April 26, 2021, Isle, Inc. filed a renewed motion to dismiss the Title VII claims asserted in Plaintiff's First Amended Complaint. [#33] Isle, Inc. again argued that it did not meet Title VII's 15-employee requirement, and that it was Plaintiff's sole employer. [Id. at 8] Isle, Inc. also stated again that “Isle Group, UK is a non-existent corporate entity.” [Id. at 12] On June 10, 2021, Plaintiff voluntarily dismissed all claims asserted against Isle Group, UK. [#41; #44] On June 29, 2021, Isle Group Ltd. and Isle Utilities Ltd. filed a motion to dismiss, arguing that Plaintiff had inadequately alleged that they were joint employers or an integrated enterprise with Isle, Inc. [#46 at 11-14] In briefing, Isle Group Ltd. and Isle Utilities Ltd. stated that: “Isle, Inc. is a subsidiary of Isle Group, Ltd. Isle Utilities, Ltd. is a separate subsidiary of Isle Group, Ltd.” [#53 at 6]
On March 31, 2022, United States District Judge Regina M. Rodriguez granted the motions to dismiss Plaintiff's First Amended Complaint. [#66] Judge Rodriguez determined that Plaintiff had failed to allege facts establishing that Isle, Inc. is an employer for the purposes of Title VII [id. at 5-6], and that Plaintiff had failed to allege facts establishing that Isle Group, Ltd. or Isle Utilities, Ltd. were joint employers or an integrated enterprise with Isle, Inc. [id. at 6-12]. Plaintiff was granted leave to file a Second Amended Complaint. [Id. at 13]
Plaintiff filed his Second Amended Complaint on May 2, 2022. [#68] Plaintiff asserted the same claims [id. at ¶¶ 84-104] against the same three Defendants: Isle, Inc.; Isle Group, Ltd.; and Isle Utilities Ltd. [id. at ¶¶ 2-4]. Plaintiff alleged that “Isle, Inc. and Isle Utilities Ltd. are wholly-owned subsidiaries of Isle Group Ltd.” [Id. at ¶ 4] Isle, Inc., Isle Group Ltd., and Isle Utilities Ltd. filed a motion to dismiss Plaintiff's Second Amended Complaint, again arguing that Isle, Inc. did not qualify as an employer under Title VII and that Isle Group Ltd. and Isle Utilities Ltd. were not joint employers or an integrated enterprise with Isle, Inc. [#70 at 10-15] Defendants stated in briefing that “Isle, Inc. is a subsidiary of Isle Group Ltd.,” and that “Isle Utilities Ltd. is another subsidiary of Isle Group Ltd.” [Id. at 6]
On October 31, 2022, this Court recommended that the motion to dismiss Plaintiff's Third Amended Complaint be granted in part. [#82] Specifically, the Court found that Plaintiff had plausibly alleged that Isle, Inc. qualified as an employer under Title VII [id. at 16-17], but had not pled facts sufficient to state a plausible claim that he was employed by either Isle Group Ltd. or Isle Utilities Ltd. [id. at 17-20] As to Plaintiff's claims against Isle Group Ltd. and Isle Utilities Ltd., this Court noted Plaintiff's repeated failure to cure the deficiencies with his theory that these Defendants were an integrated enterprise with Isle Inc. or could otherwise be considered Plaintiff's employer. [id. at 18-20 & n.11] Nonetheless, the Court recommended that these claims be dismissed without prejudice. [Id. at 19-20] On January 20, 2023, this Court's recommendation was affirmed and adopted, and Plaintiff was once again granted leave to amend his complaint. [#89 at 12]
Plaintiff filed his operative Third Amended Complaint on February 3, 2023. [#91] Plaintiff brings the same two claims under Title VII and CADA. [#91 at ¶¶ 84-105] Notably, Plaintiff only asserts these claims against the following Defendants: Isle, Inc., and Isle Utilities, Ltd. [Id. at ¶¶ 2-3] Plaintiff alleges that he “was employed in the U.S. by Isle, Inc. and Isle Utilities as his single employer.” [Id. at ¶ 5] Plaintiff also alleges that “Isle, Inc. and Isle Utilities are both wholly-owned subsidiaries of Isle Group Ltd.” [Id. at ¶ 33] In their Answer, filed on February 17, 2023, Isle, Inc. and Isle Utilities, Ltd. admit this last allegation. [#92 at 16]
On November 17, 2023, Plaintiff filed the Motion before the Court. [#110] Plaintiff seeks to “conform” his Third Amended Complaint to replace Defendant Isle Utilities, Ltd. with Defendant “Isle Group, Ltd., d/b/a Isle Utilities.” [Id. at 11] Defendants have responded [#121], and Plaintiff has replied [#125]. The Court heard oral argument on the Motion on February 1, 2024. [#128]
II. Amendment Under Federal Rule of Civil Procedure 15(b)(2)
As an initial matter, the Motion relies on Federal Rule of Civil Procedure 15(b)(2) as authority for the requested relief. [#110 at 8] Defendant argues that Rule 15(b)(2) is inapplicable at this stage of the proceedings. [#121 at 6-7] Plaintiff offers no counterargument, but does continue to rely on Rule 15(b)(2) in his Reply. [See #125 at 3-4]
Rule 15(b)(2) provides:
When an issue not raised by the pleadings is tried by the parties' express or implied consent, it must be treated in all respects as if raised in the pleadings. A party may move-at any time, even after judgment-to amend the pleadings to conform them to the evidence and to raise an unpleaded issue.
“Rule 15(b)[(2)] applies only when the defendant has consented to trial of the non-pled factual issues[,] [and application of] Rule 15(b)(2) requires that a party expressly or impliedly consent to trial on an unpled claim and not be prejudiced by doing so.” Dan Ryan Builders, Inc. v. Crystal Ridge Dev., Inc., 783 F.3d 976, 983 (4th Cir. 2015) (quotation omitted).
Here, there has been no express consent to try the issue the Plaintiff seeks to amend-namely, that Isle Group, Ltd. is liable as Plaintiff's employer. Instead, Plaintiff argues that Defendants have impliedly consented to trying the issue “through written discovery and depositions.” [See #125 at 4] This is not a method of implied consent recognized in this Circuit. “[Tenth Circuit] case law indicates that [a defendant] c[an] have impliedly consented to the trial of [an unpleaded issue] in one of two ways: by (1) introducing evidence on the issue or (2) failing to object when [the plaintiff] introduced such evidence.” Eller v. Trans Union, LLC, 739 F.3d 467, 480 (10th Cir. 2013) (citing Green Cnty. Food Mkt., Inc. v. Bottling Grp., LLC, 371 F.3d 1275, 1280 (10th Cir. 2004)). Plaintiff makes no argument that Defendants have satisfied either of these methods of implied consent. Moreover, Defendants have repeatedly and consistently sought (and achieved) dismissal of Plaintiff's claims against Isle Group, Ltd., arguing that Isle, Inc. was Plaintiff's sole employer. [See #46 at 11-14; #70 at 12-15]; see also Monod v. Futura, Inc., 415 F.2d 1170, 1174 (10th Cir. 1969) (affirming the denial of an amendment under Rule 15(b) when “[a]t every turn in this case [defendants] opposed any amendment which would try” the disputed issue, even when “evidence was introduced by both parties which bore on” the disputed issue)]. Accordingly, the Court finds that amendment under Rule 15(b) is improper.
III. Amendment Under Federal Rule of Civil Procedure 15(a)(2)
While not cited in the Motion, Plaintiff's basic argument is consistent with a motion brought under Federal Rule of Civil Procedure 15(a)(2). Defendants largely construe Plaintiff's Motion as seeking relief under Rule 15(a)(2) [#121 at 7-15], and Plaintiff argues in his Reply that amendment under Rule 15(a) is appropriate [#125 at 2-5]. The Court will therefore consider whether Plaintiff's proposed amended complaint is supported by Rule 15(a).
After the deadline for the amendment of pleadings established by a scheduling order has expired,a party seeking leave to amend “must demonstrate (1) good cause for seeking modification under Fed.R.Civ.P. 16(b)(4) and (2) satisfaction of the Rule 15(a) standard” for amending pleadings. Birch v. Polaris Indus., Inc., 812 F.3d 1238, 1247 (10th Cir. 2015) (quoting Gorsuch, Ltd., B.C. v. Wells Fargo Nat'l Bank Ass'n, 771 F.3d 1230, 1240 (10th Cir. 2014)).
Plaintiff asserts in his Reply that the relevant deadline for joinder of parties and amendment of pleadings set forth in the scheduling order passed while this case was stayed and should therefore be given less weight. [#125 at 3] Plaintiff's assertion is not supported by the record. The deadline for joinder of parties and amendment of pleadings was September 13, 2021. [#52 at 10] The case was stayed on September 15, 2021- after that deadline had already passed. [#63] When case deadlines were reset on February 28, 2023, neither party sought to reset the deadline for joinder of parties and amendment of pleadings. [See ##94; 95]
Federal Rule of Civil Procedure 16(b)(4) allows modification of a scheduling order “only for good cause and with the judge's consent.” “Demonstrating good cause under the rule ‘requires the moving party to show that it has been diligent in attempting to meet the deadlines, which means it must provide an adequate explanation for any delay.'” Strope v. Collins, 315 Fed.Appx. 57, 61 (10th Cir. 2009) (quoting Minter v. Prime Equip. Co., 451 F.3d 1196, 1205 n.4 (10th Cir. 2006)); see also Lehman Bros. Holdings Inc. v. Universal Am. Mortg. Co., 300 F.R.D. 678, 681 (D. Colo. 2014). “In practice, this standard requires the movant to show the scheduling deadlines cannot be met despite [the movant's] diligent efforts.” Gorsuch, Ltd., 771 F.3d at 1240 (alteration in original) (quotations omitted). “Rule 16's good cause requirement may be satisfied, for example, if a plaintiff learns new information through discovery or if the underlying law has changed.” Id. On the other hand, “[i]f the plaintiff knew of the underlying conduct but simply failed to raise tort claims, . . . the claims are barred.” Id.
Pursuant to Federal Rule of Civil Procedure 15(a)(2), the Court is to freely allow amendment of the pleadings “when justice so requires.” The grant or denial of an opportunity to amend is within the discretion of the Court, but “outright refusal to grant the leave without any justifying reason appearing for the denial is not an exercise of discretion; it is merely abuse of that discretion and inconsistent with the spirit of the Federal Rules.” Foman v. Davis, 371 U.S. 178, 182 (1962). “Refusing leave to amend is generally only justified upon a showing of undue delay, undue prejudice to the opposing party, bad faith or dilatory motive, failure to cure deficiencies by amendments previously allowed, or futility of amendment.” Frank v. U.S. West, Inc., 3 F.3d 1357, 1365 (10th Cir. 1993).
Plaintiff's proposed amendment fails under both Rules 15(a) and 16(b)(4) due to its untimeliness.Plaintiff seeks to amend his complaint to allege claims against Isle Group, Ltd. on the theory that Isle Group, Ltd. was Plaintiff's true employer. [See #110 at 10] Plaintiff, however, has alleged this same theory twice before, in both his First Amended Complaint (filed March 25, 2021) [#24], and his Second Amended Complaint (filed May 2, 2022) [#68]. After these same claims against Isle Group, Ltd. were dismissed without prejudice for the second time on January 20, 2023 [#89], Plaintiff filed his Third Amended Complaint on February 3, 2023-inexplicably dropping all claims against Isle Group, Ltd. [#91]. Thus, Plaintiff seeks to re-add Isle Group, Ltd. as a Defendant in this matter over two and a half years after first asserting claims against Isle Group, Ltd. on the theory that it was his employer, and over nine months after voluntarily dropping those same claims despite being granted leave to amend. Plaintiff offers inadequate justification for doing so.
Plaintiff's Motion does not address Rule 16(b) at all [#110], an omission that the Tenth Circuit has explained is “fatal” to Plaintiff's argument. Hamric v. Wilderness Expeditions, Inc., 6 F.4th 1108, 1118 (10th Cir. 2021) (“Specifically, when a party seeking to amend her complaint fails, after the deadline for amendment in a scheduling order, to present a good cause argument under Rule 16(b), a lower court does not abuse its discretion by denying leave to amend.”). Indeed, Plaintiff's failure to address, let alone establish, good cause under Rule 16(b)(4) for seeking amendment over two years after the deadline for joinder of parties and amendment of pleadings had passed also serves as an independent basis for denying Plaintiff relief under Rule 15(b), as well as Rule 15(a). See Alfwear, Inc. v. Kulkote, LLC, No. 19-cv-00027-DBB-JCB, 2023 WL 8833513, at *6 (D. Utah Dec. 21, 2023) (“[The movant's] attempted invocation of Rule 15(b) [does] not circumvent the requirements of . . . Rule 16(b) under the Federal Rules of Civil Procedure.” (quotation omitted)); Corona v. City of Clovis, No. CV 17-805 JCH/CG, 2019 WL 1051018, at *2 (D.N.M. Mar. 5, 2019) (“[W]hen a movant seeks leave to amend after the court's scheduling order deadline has passed, Federal Rule 15(b) works in tandem with Federal Rule 16(b).”)
Plaintiff asserts that he uncovered new information necessitating this amendment. To be sure, learning new information through discovery satisfies both Rules 15(a) and 16(b)(4), so long as amendment is diligently sought thereafter. See Gorsuch, Ltd., 771 F.3d at 1240; Sullivan v. Equifax Info. Servs. LLC, No. 14-CV-02377-CMA-KLM, 2015 WL 4480899, at *4 (D. Colo. July 23, 2015). As the “new information” supporting this amendment, Plaintiff points to an excerpt from the deposition of Isle Group, Ltd.'s Chairman, Dr. Piers Clark. [#110 at 4-5] In that excerpt, Dr. Clark was asked about “Isle Utilities employees.” [#110-2 at 3 (7:8-9)] Dr. Clark clarified that “Isle Utilities is the name that's used to describe all of Isle across the world.... Isle Utilities is the general name that's used to capture Isle Utilities staff.” [Id. (7:10-16)] Dr. Clark explained that this is distinct from “Isle Utilities Limited,” which “refers specifically to the U.K. business.” [Id. at 4 (8:3-4)] Dr. Clark then explained that “Isle Group” referred to “the holding company that wholly owns all of the subsidiaries” located around the world (such as Isle, Inc. and Isle Utilities, Ltd). [Id. at 5 (9:10-12)]
This description is consistent with Defendants' representations of the relevant entities' structures and status made since this case was filed,and Plaintiff's apparent understanding of these entities' structures since his First Amended Complaint. Again, Plaintiff has long-since alleged and Defendant has long-since acknowledged that Isle, Inc. and Isle Utilities, Ltd. are wholly-owned subsidiaries of Isle Group, Ltd. [##24 at ¶ 4; 91 at ¶ 33; 92 at 16] And using “Isle Utilities” as a “general” or colloquial name used to describe the network of subsidiaries as a whole does not give rise to any inference that “Isle Utilities” has any form of corporate existence or otherwise contradict Defendants' representation that Isle Utilities “does not exist as a corporate entity” and is a “non-existent entity.” [#17 at 3-4] Nor was this colloquial use unknown to Plaintiff before Dr. Clark's deposition. Indeed, Plaintiff himself testified in his June 13, 2023 deposition that “Isle Utilities is a blanket term they used for the entire company[.]” [#115-1 at 36 (193:10-11)]
Plaintiff does point out an inaccurate representation regarding Isle, Inc.'s parent company made during the EEOC proceedings, wherein Isle, Inc. stated in a footnote that “Isle, Inc.'s parent company is Isle Group, UK.” [See #17-1 at 1 n.1] While the document containing this footnote was filed as an exhibit to multiple of Defendants' motions to dismiss, Defendants have consistently corrected this prior representation during this case-explaining that “Isle Group, UK” was simply a trade name for Isle Group, Ltd., which is the actual parent company of Isle, Inc. [##17 at 3; 33 at 12; 92 at 16] Any confusion caused by Isle, Inc.'s misstatement to the EEOC has been resolved as of, at the latest, June 10, 2021, when Plaintiff voluntarily dismissed his claims against Isle Group, UK. [#41] That prior misstatement has no bearing on Plaintiff's instant Motion, which seeks to swap entity defendants of which Plaintiff has long been aware.
Thus, it appears from the record that Plaintiff had all of the critical information to distinguish, identify, and name what he now deems to be the proper entity defendant in this matter well before Dr. Clark's deposition. See Crocs, Inc. v. Effervescent, Inc., No. 06-CV-00605-PAB-KMT, 2021 WL 941828, at *5 (D. Colo. Mar. 11, 2021) (“Delay is undue where the moving party was aware of the facts on which the amendment was based for some time prior to the filing of the motion to amend.” (quotation omitted)). Indeed, Plaintiff had done so in two of his prior complaints. [##24; 68] Ultimately, Plaintiff fails to provide an adequate justification for replacing a defendant (who has answered, participated in discovery, and filed a dispositive motion) with a separate entity, which would revert this matter back to the earliest stages of litigation. See Crocs, Inc., 2021 WL 941828, at *5 (D. Colo. Mar. 11, 2021) (“The longer the delay, the more likely the motion to amend will be denied because protracted delay, with its attendant burdens on the opponent and the court, is itself a sufficient reason for the court to withhold permission to amend.”). Accordingly, the Court finds that amendment under Rule 15(b) is improper because: (1) Plaintiff has not established good cause pursuant to Rule 16(b)(4) to amend the deadline for amending pleadings and adding parties set forth in the scheduling order, and (2) the amendment is unduly delayed.
Plaintiff faults Defendants for filing their dispositive motion in light of the Motion before the Court, calling this a “strange decision.” [#125 at 9] The Court sees nothing “strange” with meeting the deadlines set forth by this Court. [#105 (setting the dispositive motion deadline as November 22, 2023, the date that Defendants' Motion for Summary Judgment was filed)]
IV. Amendment Under Federal Rule of Civil Procedure 15(c)
Finally, Plaintiff raises the prospect of amendment under Federal Rule of Civil Procedure 15(c) for the first time in his Reply.[#125 at 4-5] Rule 15(c) sets forth when an amendment to a pleading relates back to the date of the original pleading. Fed.R.Civ.P. 15(c); Krupski v. Costa Crociere S. p. A., 560 U.S. 538, 541 (2010). Plaintiff provides no authority for the proposition that Rule 15(c) provides an independent ground for permitting an amendment to a complaint.Instead, Rule 15(c) appears to presuppose an already-amended pleading.
“[A]rguments raised for the first time in a reply brief are generally deemed waived.” United States v. Harrell, 642 F.3d 907, 918 (10th Cir. 2011). For this reason alone, the Court could refuse to consider Plaintiff's Rule 15(c) argument. Nonetheless, because the Court is issuing a recommendation, it will address this alternative argument.
While Plaintiff cites Graves v. General Insurance Corp, in that case the plaintiff had already effectively amended his original complaint by filing a notice of a new defendant which the parties stipulated had amended the name of the defendant. 412 F.2d 583, 584 (10th Cir. 1969) (explaining that the plaintiff had already “add[ed] [an entity] as a defendant to the action,” and that the issue was whether “the amendment . . . relate[d] back” under Rule 15(c)).
Moreover, even to the extent that Rule 15(c) does independently authorize some form of amendments, it is only for the technical or formal “[c]orrection of misnomers.” Id.; see also Bachor v. Board of Cnty. Comm'rs of La Plata Cnty., No. 21-CV-02276-LTB-NRN, 2023 WL 2824364, at *3-4 (D. Colo. Mar. 15, 2023) (permitting an amendment “under Rule 15(c)(3) and the Advisory Committee notes” that changed the name of a defendant from “La Plata County” to “The Board of County Commissioners of La Plata County” because the prior naming was simply a “technical error” and a “formal defect”). Here, Plaintiff's proposed amendment goes well beyond correcting “technical error” in the naming of a party. Plaintiff seeks to not only rename “Isle Group, Ltd.” as a defendant, but include allegations that this entity “consists of all of Isle Group, Ltd.'s eight wholly-owned globally located subsidiaries, including Isle, Inc., operating together as a single enterprises organization” [#110-3 at ¶ 3], and that “[e]very employee of all eight globally situated wholly-owned subsidiaries of Isle Group, Ltd., is an employee of Isle Group, Ltd. d/b/a Isle Utilities, because of their interrelated operations, shared management, shared ownership, and shared financial control.” [#110-3 at ¶ 25] As Plaintiff's redlined “Conformed Third Amended Complaint and Jury Demand” demonstrates, Plaintiff's proposed amendments are significant and substantive [see generally #110-4]-far from simply correcting a misnomer or a technical error. Accordingly, the Court finds that amendment under Rule 15(c), to the extent authorized by that Rule, is improper.
IV. CONCLUSION
For the foregoing reasons, the Court respectfully RECOMMENDS that Plaintiff's
Motion for Leave to Conform Plaintiff's Third Amended Complaint to the Evidence [#110] be DENIED.
Within fourteen days after service of a copy of this Recommendation, any party may serve and file written objections to the magistrate judge's proposed findings of fact, legal conclusions, 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); Griego v. Padilla (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. 2121 East 30th Street, 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 of fact, legal conclusions, 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 of fact, legal conclusions, and recommendations of the magistrate judge. See Vega v. Suthers, 195 F.3d 573, 579-80 (10th Cir. 1999) (holding that the district court's decision to review magistrate judge's recommendation de novo despite lack of an objection does not preclude application of “firm waiver rule”); Int'l Surplus Lines Ins. Co. v. Wyo. Coal Refining Sys., Inc., 52 F.3d 901, 904 (10th Cir. 1995) (finding that cross-claimant waived right to appeal certain portions of magistrate judge's order by failing to object to those portions); Ayala v. United States, 980 F.2d 1342, 1352 (10th Cir. 1992) (finding that plaintiffs waived their right to appeal the magistrate judge's ruling by failing to file objections). But see, Morales-Fernandez v. INS, 418 F.3d 1116, 1122 (10th Cir. 2005) (holding that firm waiver rule does not apply when the interests of justice require review).