United States v. Tuckness
United States v. Tuckness
Opinion of the Court
ORDER AND JUDGMENT
On May 30, 2000, the federal government brought suit against John T. Tuckness to collect on a student loan. (Doc. No. 1.) Tuekness did not appear for court appointments or respond to court documents, and on March 22, 2001 a first default judgment was entered against him. (Doc. No. 31.) He successfully moved to set aside that judgment (Doc. Nos. 37, 43), but continued to fail to meet important deadlines. (See, e.g., Doc. Nos. 61, 62, 64.) On September 10, 2001, in response to the government’s motions for sanctions, Magistrate Judge O’Hara entered an order finding Tuekness in contempt of court and recommended that a second default judgment be entered. (Doc. Nos. 61, 62.) Tuekness did not object to the Report and Recommendation in a timely manner, and a second default judgment was entered. (Doc. No. 64.) The total amount of this judgment was $ 5,291.78, representing $ 2,695.48 in loan principal and $ 2,596.30 in accrued interest. (Doc. No. 65.)
On appeal, Tuekness claims that he did not receive a copy of the Magistrate Judge’s Report and Recommendation in time to lodge his objections. (Aplt. B, at v.) Tuekness points to an entry on the district court’s docket noting that a certified letter containing a copy of the document had been returned as unclaimed. (Doc. No. 65.) He thus argues that he could not have waived his right to appeal the district court’s order adopting it. (Aplt. B. at v); see also Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991) (establishing that an appellant waives his right to appellate review when he fails to file timely objections to a magistrate judge’s Report and Recommendation).
The district court, however, found that Tuekness had been properly served. (Doc. No. 64.) It noted that the Magistrate Judge’s Report and Recommendation had in fact been served on Tuekness in three ways: by regular mail, by first class mail, and by certified mail with return receipt requested. (Id.) All parties and counsel had been advised that they had been given ten (10) days from the date of the receipt of any copy of the Report and Recommendation to file and serve their written objections to it. (Id.) The parties had also been advised that failure to file and serve objections in a timely manner might result in their waiver of any right to appeal. (Id.) Finally, the district court found no indication that Tuekness could be entitled to special tolling provisions as he was not an infant, an incompetent person, or a person serving abroad in the military. (Doc. No. 66.)
We will only set aside a district court’s finding of fact if a party can show it was clearly erroneous. Fed.R.Civ.P. 52(a); United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 92 L.Ed. 746 (1948). Tuekness has made no such showing here. Although the certified letter in question was never claimed, Tuck
As we hold that it was not clear error for the district court to have found Tuckness had been properly served, Tuckness has waived his right to appellate review by failing to object in a timely manner to the Magistrate Judge’s Report and Recommendation. Moore, 950 F.2d at 659. Accordingly, we AFFIRM the district court’s dismissal of his appeal.
After examining appellant’s brief and the 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)(2) and 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. 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.
Reference
- Full Case Name
- United States v. John T. TUCKNESS
- Status
- Published