Walz v. Oliveri

• Court: Court of Appeals for the Tenth Circuit
• Decided: March 27, 2025
• Docket: 24-4118
• Status: Unpublished

Opinion

Appellate Case: 24-4118 Document: 24-1 Date Filed: 03/27/2025 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT March 27, 2025 _________________________________ Christopher M. Wolpert Clerk of Court RYAN ROBERT WALZ,

Plaintiff - Appellant, No. 24-4118 v. (D.C. No. 2:24-CV-00724-HCN) (D. Utah) JESSICA OLIVERI; HALLIDAY, WATKINS & MANN, P.C.,

Defendants - Appellees. _________________________________

ORDER AND JUDGMENT* _________________________________

Before EID, KELLY, and CARSON, Circuit Judges.** _________________________________

Plaintiff-Appellant Ryan Robert Walz, appearing pro se, appeals from the

district court’s order dismissing his action for lack of subject matter jurisdiction. R.

25, 29. Our jurisdiction arises under 28 U.S.C. § 1291 and we affirm.

Background

Mr. Walz filed a complaint claiming Defendants-Appellees Jessica Oliveri and

Halliday, Watkins & Mann, P.C., violated his due process rights under the Fifth

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. ** After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. Appellate Case: 24-4118 Document: 24-1 Date Filed: 03/27/2025 Page: 2

Amendment in connection with scheduling and advertising a trustee sale of real

property in connection with foreclosure. R. 6–7. Mr. Walz sought an order requiring

Defendants to cease activities; he also sought removal of fraudulent or void (his

opinion) title documents. Id. at 6. He did not seek monetary relief. Id. A magistrate

judge recommended that the action be dismissed without prejudice for lack of subject

matter jurisdiction. Id. at 20–21. Though apprised of the consequences of a failure

to object to the magistrate judge’s report and recommendation, Mr. Walz did not file

any objections. Id. at 21. Accordingly, the district judge adopted the report and

recommendation and denied pending motions. Id. at 25. After judgment, Mr. Walz

moved for reconsideration, but the district court denied relief, ruling that any

objections were waived and that relief under Rule 60(b) of the Federal Rules of Civil

Procedure was not warranted. Id. at 28.

This court issued an order requiring Mr. Walz to address whether he had

waived appellate review by failing to file objections to the magistrate judge’s report

and recommendation. Rather than responding to the issue at hand, Mr. Walz

addressed the merits of his case. See Aplt. Mem. Br. (ECF No. 7).

Discussion

We review the district court’s application of our firm waiver rule de novo. See

Harvey v. Butcher, No. 21-4051, 2022 WL 2734397, at *4 (10th Cir. July 14, 2022).

Subject matter jurisdiction is also reviewed de novo. Radil v. Sanborn Western

Camps, Inc., 384 F.3d 1220, 1224 (10th Cir. 2004). Finally, we construe pro se

2 Appellate Case: 24-4118 Document: 24-1 Date Filed: 03/27/2025 Page: 3

pleadings liberally, but may not act as an advocate. Garrett v. Selby Connor Maddux

& Janer, 425 F.3d 836, 840 (10th Cir. 2005).

The failure to timely and specifically object to the magistrate judge’s report

and recommendation ordinarily waives appellate review of factual and legal

questions. See 28 U.S.C. § 636(b)(1)(C); Moore v. United States, 950 F.2d 656, 659

(10th Cir. 1991). This “firm waiver rule” ensures that matters are brought to the

attention of the district court prior to any appeal. United States v. 2121 E. 30th St.,

73 F.3d 1057, 1060 (10th Cir. 1996). This rule may be applied to pro-se litigants,

provided that notice of when the objection is due and the consequences of a failure to

object were provided. Wardell v. Maggard, 470 F.3d 954, 958 (10th Cir. 2006).

On appeal, Mr. Walz argues that he was unaware of the requirement to object

and that he “didn’t register the magistrate’s statement of [his] right to object . . . for

some unknown reason.” Aplt. Br. at 4 (unnumbered). Essentially, he argues for an

“interests of justice” exception which this court may apply after considering a pro se

litigant’s attempt at compliance, how compelling his explanation for non-compliance

is, and the gravity of the issues raised. See Morales-Fernandez v. I.N.S., 418 F.3d

1116, 1119–20 (10th Cir. 2005). He argues that, as a layperson, he was unaware of

the procedural requirement that he object to the magistrate’s findings, and that this

procedural requirement should not bar his substantive rights. Aplt. Br. at 2–5

(unnumbered).

We are unpersuaded, but in any event both the magistrate judge and the district

court recognized that the court lacks jurisdiction given that no federal action is

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alleged, let alone any action under color of state law. See Koessel v. Sublette Cnty.

Sheriff’s Dep’t, 717 F.3d 736, 748 n.2 (10th Cir. 2013); Mbaku v. Bank of Am. Nat’l

Assn., 628 F. App’x. 968, 974 (10th Cir. 2015); Walz v. Repros Recovery, No. 2:24-

cv-809, 2025 WL 615363, at *2 (D. Utah Feb. 26, 2025). Finding no error, the

district court’s judgment is

AFFIRMED.

Entered for the Court

Paul J. Kelly, Jr. Circuit Judge