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United States Court of Appeals, Tenth Circuit
United States Court of Appeals, Tenth Circuit
3d 373
NOTICE: Although citation of unpublished opinions remains unfavored,
unpublished opinions may now be cited if the opinion has persuasive value on a
material issue, and a copy is attached to the citing document or, if cited in oral
argument, copies are furnished to the Court and all parties. See General Order of
November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or
further order.
The parties have agreed that this case may be submitted for decision on the
briefs. See Fed. R.App. P. 34(f); 10th Cir. R. 34.1.2. After examining the briefs
and appellate record, this panel has determined unanimously that oral argument
would not materially assist the determination of this appeal. See Fed. R. App.
P. 34(a); 10th Cir. R. 34.1.9. The case is therefore ordered submitted without
oral argument.
Plaintiffs' objections to the magistrate judge's report were timely filed. The
Defendants asserted that the Plaintiffs' objections were untimely because they
were due on February 5, 1995. In adopting the magistrate judge's
recommendation, the district court noted that the Plaintiffs' objections to the
magistrate judge's recommendation were untimely filed.
3
The magistrate judge served the Plaintiffs by mail with his report and
recommendation on January 26, 1995. In accord with Federal Rule of Civil
Procedure 72, the report informed Plaintiffs that they were required to serve
and file any written objections "within ten days after service of this
Recommendation." R. Vol. I, No. 65, at 12.2
AFFIRMED.
This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. The court generally
disfavors the citation of orders and judgments; nevertheless, an order and
judgment may be cited under the terms and conditions of 10th Cir. R. 36.3
The magistrate judge warned Plaintiffs that "[f]ailure to file a timely written
objection may bar the parties from a de novo determination or appeal of the
findings and recommendations herein by the District Court Judge." R. Vol. I,
No. 65, at 12. Thus, under Moore v. United States, 950 F.2d 656, 659 (10th
Cir.1991), Plaintiffs were given sufficient notice that failure to file a timely
objection would result in a waiver of their right to appeal
January 26 was "the day of the act" because on that date the magistrate judge's
report was mailed to the Plaintiff. Under Rule 6(a), "the day of the act, event, or
default from which the designated period of time begins to run shall not be
included." Hence, we count from January 27, which is the day after service