Opinion
Case No. 02-1232-WEB
October 10, 2003
MEMORANDUM AND ORDER
Now before the Court is Plaintiff's Motion to Alter Order (Doc. 19). Plaintiff argues that the Court has discretion to assume subject matter jurisdiction over his Application for Attorney Fees (Doc. 15).
Plaintiff' states that the Defendant does not object either to the instant motion or to, with some exceptions, the Application for Attorney Fees. The consent of parties does not confer subject matter jurisdiction on the Court. See Kennedy v. Lubar, 273 F.3d 1293, 1301-1302 (10th Cir. 2001)
Plaintiff next points out that the Recommendation and Report did not inform him of the firm waiver rule. Plaintiff cites Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991), where the Tenth Circuit considered the application of the firm waiver rule to a pro se litigant in a habeas action. The Moore panel held that the firm waiver rule was a procedural bar which need not be applied if the interests of justice so dictate. Id. The Moore panel did not reach the interests of justice analysis, however, instead holding that the firm waiver rule would not be applied to pro se litigants "when the magistrate's order does not apprise the pro se litigant of the consequences of a failure to object. . . ." Id. Moore does not establish that Magistrate Judge Reid was obliged to inform Plaintiff's counsel of the firm waiver rule. The Tenth Circuit, as would be expected, applies a different rule to represented parties in civil cases. In Vega v. Suthers, 195 F.3d 573, 580 (10th Cir. 1999), the panel noted that "we have excused the failure to file timely objections only in the rare circumstances in which a represented party did not receive a copy of the magistrate's R R." In In Re Key Energy Resources, Inc., 230 F.3d 1197, 1200 (10th Cir. 2000), the panel held that the interests of justice exception "in counseled, civil, nonhabeas cases," is not based on the merits of the case, but only on the "facts that purport to excuse the lack or untimeliness of the filing of objections."
Plaintiff not only fails to state facts which purport to excuse the lack of objections, he does not even allege that either party harbored objections to the Report and Recommendation. It was Defendant who moved to remand the case, and Plaintiff made no response to Defendant's motion. Magistrate Judge Reid considered Defendant's motion as uncontested under D.Kan.R. 7.4, and he recommended remand. The Report and Recommendation reminded the parties that they had 10 days to object, and neither did. The facts, therefore, are analogous to Bryan v. Office of Personnel Management, 165 F.3d 1315, 1321 (10th Cir. 1999), where the parties jointly moved to remand. For these reasons and those set out in the Court's Memorandum and Order dated September 30, 2003 (Doc. 18), the Court is without jurisdiction to consider Plaintiff's Application for Attorney Fees.
IT IS THEREFORE ORDERED that Plaintiff's Motion to Alter Order (Doc. 19) is DENIED.
SO ORDERED.