Opinion
Civil Action 23-cv-01184-RMR-STV
09-07-2023
SHAWN LEE, Plaintiff, v. RAFAEL ANDRES HEREDIA-GALLEGOS; and AMERICAN FAMILY INSURANCE COMPANY; Defendants.
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Scott T. Varholak Magistrate Judge
This matter comes before the Court on the Motion to Remand by Plaintiff Shawn Lee (the “Motion”). [#25] The Motion was referred to this Court. [#27] This Court has carefully considered the Motion and related briefing, the entire case file and the applicable case law, and has determined that oral argument would not materially assist in the disposition of the Motion. For the following reasons, this Court respectfully RECOMMENDS that the Motion to Remand be GRANTED.
I. BACKGROUND According to the Complaint, on June 29, 2021, Plaintiff's son's vehicle was stolen by Defendant Heredia-Gallegos. [#4 at ¶¶ 6-7] While attempting to pursue the stolen vehicle, Plaintiff was struck by that same vehicle driven by Heredia-Gallegos, causing Plaintiff severe injuries. [Id. at ¶¶ 6-7] Heredia-Gallegos was thereafter apprehended and is incarcerated in Colorado. [Id. at ¶ 2] At the time of the incident, Plaintiff and the stolen vehicle were insured through a policy provided by Defendant American Family Insurance (“American Family”), that included $100,000 in bodily injury liability coverage as well as $100,000 in uninsured motorist bodily injury coverage (“UIM coverage”). [Id. at ¶ 12] By no later than June 30, 2021, Plaintiff notified American Family of the claim. [Id. at ¶ 13] On July 21, 2021, American Family denied the claim for UIM coverage. [Id. at ¶¶ 15-16] On August 5, 2021, American Family denied the claim for bodily injury liability coverage as well. [Id. at ¶ 18] On December 3, 2021, Plaintiff's counsel sent American Family correspondence demonstrating Plaintiff's injuries and incurred medical expenses through medical records, bills and photos. [Id. at ¶ 22] On March 17, 2022, American Family once again denied the claim for UIM coverage explaining that the vehicle was excluded from coverage under the language of the policy “because the vehicle involved in the collision was otherwise owned by the insured.” [Id. at ¶ 24] On April 7, 2022, Plaintiff's counsel informed American Family that its denial of the claim for UIM coverage was improper pursuant to State Farm v. Nissen, 815 P.2d 165 (Colo. 1993), and the provisions of Colo. Rev. Stat. § 10-4-609. [Id. at ¶ 25] On or about May 13, 2022, American Family issued payment to Plaintiff in the full amount of policy limits. [Id. at ¶ 29]
These facts are drawn primarily but not exclusively from Plaintiff's Complaint [#4] (the “Complaint”). The Court considers the entire record for purposes of analyzing the Court's jurisdiction. Citizens Concerned for Separation of Church & State v. City & Cty. of Denver, 628 F.2d 1289, 1301 (10th Cir. 1980) (“A federal court must in every case, and at every stage of the proceeding, satisfy itself as to its own jurisdiction, and the court is not bound by the acts or pleadings of the parties.”)
On April 6, 2023, Plaintiff initiated the instant action in Denver County District Court against Heredia-Gallegos and American Family. [##1; 4] Plaintiff's first claim for relief alleges that Heredia-Gallegos was negligent in causing the collision. [#4 at ¶¶ 34-38] Plaintiff's second claim for relief alleges that American Family breached its duty of good faith and fair dealing in “reviewing, investigating, evaluating, adjusting and paying his claim.” [Id. at ¶¶ 39-45] Finally, Plaintiff's third claim alleges that American Family breached its obligations under Colo. Rev. Stat. § 10-3-1115, seeking attorneys' fees, court costs, and double damages under Colo. Rev. Stat. § 10-3-1116(1), on the grounds that American Family delayed and denied Plaintiff's claims for UIM coverage without a reasonable basis. [Id. at ¶¶ 46-49]
On May 10, 2023, American Family removed the matter to this Court. [#1] In the Notice of Removal, American Family claimed that diversity jurisdiction exists because “Plaintiff is a citizen of Colorado[,] American Family is a citizen of Wisconsin[, and] Defendant Heredia-Gallegos' citizenship should be disregarded under the proceduralmisjoinder doctrine . . . sometimes referred to as fraudulent misjoinder.” [#1 at ¶¶ 14-15]
On June 9, 2023, Plaintiff filed the instant Motion seeking to have the matter remanded to Denver County District Court. [#25] American Family has responded to the Motion [#30], and Plaintiff has filed a reply [#32]. On August 23, 2023, the Court requested from Plaintiff supplemental information on the parties' citizenship. [#33] On August 25, 2023, Plaintiff filed a responsive supplement. [#34] On August 30, 2023, American Family filed a Supplemental Brief to its Response regarding Heredia-Gallegos' citizenship. [#35] On September 6, 2023, Plaintiff moved to strike that Supplemental Brief. [#36]
II. STANDARD OF REVIEW
A “civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending.” 28 U.S.C. § 1441(a). “To warrant removal under § 1441(a) based on diversity jurisdiction, the matter must satisfy [ ] § 1332(a)'s diversity requirements.” Woods v. Ross Dress for Less, Inc., 833 Fed.Appx. 754, 756-57 (10th Cir. 2021). Pursuant to 28 U.S.C. § 1332(a)(1), federal district courts have original jurisdiction over “all civil actions where the matter in controversy exceeds the sum or value of $75,000 . . . and is between . . . citizens of different States.” Diversity jurisdiction requires complete diversity-i.e., “no plaintiff may be a citizen of the same state as any defendant.” Grynberg v. Kinder Morgan Energy Partners, L.P., 805 F.3d 901, 905 (10th Cir. 2015). Because federal courts are courts of limited jurisdiction, the Court must “presume no jurisdiction exists absent an adequate showing by the party invoking federal jurisdiction.” United States ex rel. Hafter v. Spectrum Emergency Care, Inc., 190 F.3d 1156, 1160 (10th Cir.1999).
The party removing a case to federal court bears the burden of establishing jurisdiction by a preponderance of the evidence. Dutcher v. Matheson, 733 F.3d 980, 985 (10th Cir. 2013) (citing Hafter, 190 F.3d at 1160). Moreover, “[w]hen diversity jurisdiction is the basis for removal, diversity must exist both at the time the action is filed in state court and at the time the case is removed to federal court.” Woods, 833 Fed.Appx. at 757; Grupo Dataflux v. Atlas Glob. Grp., L.P., 541 U.S. 567, 570 (2004) (“the citizenship of the parties is to be determined with reference to the facts as they existed at the time of filing”). “A federal court must in every case, and at every stage of the proceeding, satisfy itself as to its own jurisdiction, and the court is not bound by the acts or pleadings of the parties.” Citizens Concerned for Separation of Church & State v. City & Cty. of Denver, 628 F.2d 1289, 1301 (10th Cir. 1980).
III. ANALYSIS
Plaintiff seeks to return the case to state court, on the grounds that American Family has failed to invoke federal diversity jurisdiction. [See generally ##25, 32, 34] American Family originally removed the action to federal court arguing that Heredia-Gallegos was improperly joined, and his citizenship should be disregarded pursuant to the “procedural misjoinder”doctrine. [See generally #1] In its brief responding to the Motion, American Family argues the Court can cure the jurisdictional spoiler by severing and remanding the claims against Heredia-Gallegos pursuant to the Court's authority under Rule 21 of the Federal Rules of Civil Procedure. [#30 at 4-7] Finally, in its supplemental briefing, American Family argues that the parties are, in fact, citizens of different states, preserving the Court's diversity jurisdiction. [See generally #35] The Court will address each argument in turn.
Although the doctrine is sometimes called “fraudulent misjoinder,” the Court will use “procedural misjoinder” instead of “fraudulent misjoinder” to avoid confusion with the related concept of fraudulent joinder. See Roche Constructors, Inc. v. One Beacon Am. Ins. Co., No. 11-CV-01903-PAB-CBS, 2012 WL 1060000, at *4, n.6 (D. Colo. Mar. 28, 2012) (“[Procedural misjoinder] is different from the more familiar ‘fraudulent joinder,' which is ordinarily understood to refer to situations where a plaintiff asserts a claim against a defendant when no reasonable basis for the claim exists.”).
A. Procedural Misjoinder
In the Notice of Removal, American Family asserts the presence of federal subject matter jurisdiction by arguing the Court should ignore Heredia-Gallegos' citizenship pursuant to the doctrine of “procedural misjoinder.” [ See generally #1] Plaintiff rebuts the application of this doctrine by arguing that courts in the Tenth Circuit have declined to adopt the theory of procedural misjoinder. [##25 at 4-9, 32 at 3-6] The Court agrees with Plaintiff. Neither the Constitution, nor statute, nor binding precedent permits the Court to apply the procedural misjoinder doctrine.
“[Procedural misjoinder] occurs when a plaintiff sues a diverse defendant in state court and joins a non-diverse or in-state defendant even though the plaintiff has no reasonable procedural basis to join such defendants in one action.” Lafalier v. State Farm Fire & Cas. Co., 391 Fed.Appx. 732, 739 (10th Cir. 2010). Professor E. Farish Percy of the University of Mississippi School of Law has explained:
While the traditional fraudulent joinder doctrine inquires into the substantive factual or legal basis for the plaintiff's claim against the jurisdictional spoiler, the [procedural] misjoinder doctrine inquires into the procedural basis for the plaintiff's joinder of the spoiler. Most state joinder rules are modeled after the federal joinder rule that authorizes permissive joinder of parties when the claims brought by or against them arise “out of the same transaction, occurrence, or series of transactions or occurrences” and give rise to a common question of law or fact. Thus, in a case where the joined claims are totally unrelated, a federal district court may find removal jurisdiction pursuant to the [procedural] misjoinder doctrine even though the plaintiff has a reasonable substantive basis for the claim against the jurisdictional spoiler.
E. Farish Percy, Defining the Contours of the Emerging Fraudulent Misjoinder Doctrine, 29 Harv. J.L. & Pub. Pol'y 569, 572 (2006) (footnotes omitted). “The doctrine stems from the Eleventh Circuit's decision in Tapscott v. MS Dealer Service Corp., 77 F.3d 1353 (11th Cir. 1996), [which] [d]etermin[ed] that the claims alleged against one class of defendants were ‘wholly distinct' from the claims against a second class of defendants, and thus insufficient for joinder under Fed.R.Civ.P. 20.” Lafalier, 391 Fed.Appx. at 739. Outside the Eleventh Circuit, the reach of the procedural misjoinder doctrine is unclear. Id. (“No circuit has rejected the doctrine, but the district courts and the commentators are split.”). The Tenth Circuit, however, has several times declined to adopt the doctrine of procedural misjoinder. See Parson v. Johnson & Johnson, 749 F.3d 879, 893 (10th Cir. 2014) (declining to “determine whether to recognize the doctrine of ‘[procedural] misjoinder . . . to circumvent diversity jurisdiction,' a rule that the defendants admit has not yet been adopted within this circuit” (citation omitted)); Lafalier, 391 Fed.Appx. at 739 (“There may be many good reasons to adopt procedural misjoinder . . . [b]ut we need not decide that issue today.”).
The Eleventh Circuit has since abrogated Tapscott on other grounds. See Cohen v. Office Depot, Inc., 204 F.3d 1069, 1072 (11th Cir.2000).
“No party argues that procedural misjoinder exists in the Constitution or in any statute, and the Court is aware of no express constitutional or statutory basis for the Court to apply procedural misjoinder to cure jurisdictional defects.” Emergency Servs. of Oklahoma, PC v. United HealthCare Ins. Co., No. CIV-19-00430-JD, 2022 WL 20509275, at *9 (W.D. Okla. Mar. 2, 2022) (declining to apply the procedural misjoinder doctrine). As such, there is no binding authority requiring the application of the doctrine of procedural misjoinder within the Tenth Circuit, and it is beyond the purview of this Court to adopt new doctrines regarding jurisdiction. See Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994) (“Federal courts are courts of limited jurisdiction. They possess only that power authorized by Constitution and statute, which is not to be expanded by judicial decree.” (internal citation omitted)); Franklin D. Azar & Assocs., P.C. v. Farmers Ins. Exch., No. 13-CV-0661-WJM-MEH, 2013 WL 1324916, at *2 (D. Colo. Apr. 1,2013) (“[T]here is no binding precedent in this circuit requiring that the Court adopt a [procedural] misjoinder theory here and the Court declines to do so.”).
Even if the Court were required to apply the doctrine, doing so here would not benefit American Family, because Plaintiff's decision to join Heredia-Gallegos was procedurally proper. In a diversity case proceeding under Colorado law, the joinder of claims against multiple defendants in a single action is governed by Rule 20 of the Colorado Rules of Civil Procedure. Franklin D. Azar & Assocs., 2013 WL 1874198, at *2; Roche Constructors, Inc. v. One Beacon Am. Ins. Co., No. 11-CV-01903-PAB-CBS, 2012 WL 1060000, at *4 (D. Colo. Mar. 28, 2012). That Rule provides that parties “may be joined in one action as defendants if there is asserted against them jointly, severally, or in the alternative, any right to relief in respect of or arising out of the same transaction, occurrence, or series of transactions or occurrences and if any question of law or fact common to all defendants will arise in the action.” Colo. R. Civ. P. 20(a). Under Colorado law, Rule 20 is given “the broadest possible reading.” Roche Constructors, 2012 WL 1060000, at *4 (quoting City of Aurora ex rel. Util. Enter. v. Colo. StateEng'rs, 105 P.3d 595, 623 (Colo. 2005)).
“[W]hether the Court applies the federal or state joinder standard is immaterial, as the standard essentially does not differ between the two, and both liberally permit joinder of defendants.” Franklin D. Azar & Assocs., 2013 WL 1874198, at *2 n.3.
Federal Rule of Civil Procedure 20(a)(2) is substantially the same.
The Court finds the Complaint meets the requirements for Rule 20 joinder. The claims against American Family and Heredia-Gallegos arise from the same transaction or occurrence-the collision on June 29, 2021. [ See generally #4] All claims have as a foundation a determination of the facts concerning the negligence of Heredia-Gallegos in the June 29, 2021 collision. The claims against Heredia-Gallegos concern his negligence in the collision [id. at ¶¶ 34-38], and the claims against American Family concern its obligations under an insurance policy to cover the injuries stemming from the negligence of Heredia-Gallegos [id. at ¶¶ 39-45]. Under the broadest possible reading, the claims are properly joined.
B. Severance under Rule 21
In its Response brief, American Family asserts the presence of diversity jurisdiction by arguing the Court can cure the jurisdictional spoiler by severing and remanding the claims against Heredia-Gallegos pursuant to the Court's authority under Rule 21 of the Federal Rules of Civil Procedure. [#30 at 4-7] Plaintiff argues severance under Rule 21 is procedurally improper in this instance. [#32 at 2-6] The Court agrees with Plaintiff.
Federal Rule of Civil Procedure 21 provides that “[o]n motion or on its own, the court may . . . sever any claim against a party,” resulting in separate actions. Rule 21 may be used to “cure a jurisdictional defect at any point in the litigation, including after judgment has been entered.” Ravenswood Inv. Co., L.P. v. Avalon Corr. Servs., 651 F.3d 1219, 1223 (10th Cir. 2011). Whether to use Rule 21 in this way is a “matter left to the district court's discretion.” Lenon v. St. Paul Mercury Ins. Co., 136 F.3d 1365, 1371 (10thCir. 1998). To guide this discretion, courts have considered a number of factors, including:
(1) whether the claims arise out of the same transaction or occurrence; (2) whether the claims present some common questions of law or fact; (3) whether settlement of the claims or judicial economy would be facilitated [by severance]; (4) whether prejudice would be avoided if severance were granted; and (5) whether different witnesses and documentary proof are required for the separate claims.Saad v. Preferred Contractors Ins. Co., RRG, No. 18-CV-00776-REB-NRN, 2019 WL 13202164, at *3 (D. Colo. Mar. 29, 2019) (quoting In re Merrill Lynch & Co, Inc. Research Reports Securities Litigation, 214 F.R.D. 152, 155 (S.D.N.Y. 2003)).
Considering the factors and weighing the parties' arguments, the Court finds the balance weighs against severance of the claims. First, the claims against American Family and Heredia-Gallegos arise from the same transaction or occurrence-the collision on June 29, 2021. Second, while American Family argues the claims are “legally and factually distinct” [#30 at 7], all claims have as a foundation a determination of the facts concerning the negligence of Heredia-Gallegos in the June 29, 2021 collision. The claims against Heredia-Gallegos concern his negligence in the collision. The claims against American Family concern its obligations under an insurance policy to cover the injuries stemming from the negligence of Heredia-Gallegos. And the extent of Plaintiff's injuries, and whether those injuries were caused by Heredia-Gallegos, are almost certainly going to be at issue in both claims. And although there is no common question of law, that alone is not dispositive. See Sons of the Revolution in New York, Inc. v. Travelers Indem. Co. of Am., No. 14 CIV. 03303 LGS, 2014 WL 7004033, at *4 (S.D.N.Y. Dec. 11, 2014) (“Although there is no common question of law because Plaintiff asserts distinct legal theories against each of the Defendants-one based in contract, the other based in tort-the determination of both claims will rely on factual questions relating generally to the cause of Plaintiff's various damages.”). Third, because the claims in question here arise from the same transaction or occurrence, there will involve the same or similar evidence, including overlapping testimony from the same witnesses. Judicial economy is therefore better served by proceeding with these issues in one action. Fourth, as it relates to prejudice, American Family argues that “allowing Plaintiff's tort claim and insurance claims to be tried together raises the risk of jury confusion.” [#30 at 7] The Court finds this argument hard to reconcile with American Family's own policy language which requires joining the operator of the vehicle as a defendant when it initiates a coverage action-under the UM/UIM policy-against the insurer. [#25-1 at 31] Moreover, the Court is not convinced that a jury would be unable to distinguish between the tort claims and insurance claims against two distinct Defendants. Courts routinely join claims in disputes like this. See, e.g., Hanna v. Gravett, 262 F.Supp.2d 643, 647 (E.D. Va. 2003) (denying motion to sever, finding claim against driver for negligence was properly joined with claims against insurer for failing to pay uninsured motorist claim). Finally, that Plaintiff may have to “prove some facts that are unique” to one of the Defendants “does not override judicial efficiency of joined discovery.” See Roche Constructors, 2012 WL 1060000, at *5; Franklin D. Azar & Assocs., 2013 WL 1874198, at *2. In whole, the balance weighs against severance of the claims against Heredia-Gallegos.
C. Diversity Jurisdiction
Because Heredia-Gallegos was properly joined as a defendant, and the claims against him cannot be properly severed, the presence of federal jurisdiction in this case relies on complete diversity among the parties. “When diversity jurisdiction is the basis for removal, diversity must exist both at the time the action is filed in state court and at the time the case is removed to federal court.” Woods, 833 Fed.Appx. at 757; see also Grupo Dataflux, 541 U.S. at 570 (“It has long been the case that the jurisdiction of the court depends upon the state of things at the time of the action brought” (quotation omitted)); Sherrets v. Buechler, No. 22-CV-00551-PAB, 2022 WL 1078910, at *2 (D. Colo. Apr. 11, 2022) (“Citizenship is determined at the time of filing). For purposes of federal diversity jurisdiction, an individual's state citizenship is equivalent to domicile. Crowley v. Glaze, 710 F.2d 676, 678 (10th Cir. 1983). “To establish domicile in a particular state, a person must be physically present in the state and intend to remain there.” Smith v. Cummings, 445 F.3d 1254, 1260 (10th Cir. 2006). Although an individual's residence is not necessarily synonymous with domicile, his residence is prima facie evidence of domicile. State Farm Mut. Auto. Ins. Co. v. Dyer, 19 F.3d 514, 520 (10th Cir. 1994). Lastly, “[b]ecause domicile is a voluntary status, a prisoner is presumed to be a citizen of the state of which he was a citizen before his incarceration, even if he is subsequently incarcerated in another state.” Smith, 445 F.3d at 1260.
It is undisputed that Plaintiff is a citizen of Colorado, and American Family is a citizen of Wisconsin. [##1 at ¶¶ 11-12; 2 at 1; 29 at 1] American Family's Notice of Removal demonstrates that Heredia-Gallegos is currently incarcerated in Colorado [##1 at ¶ 13; 34 at 3], and Heredia-Gallegos' last known residence, before his incarceration, was in Colorado [##1; 4]. Neither the Notice of Removal nor the Complaint present any other evidence demonstrating domicile. [ See generally ## 1; 4] Therefore, at the time of removal, the citizenship of Heredia-Gallegos was insufficiently pled, as there is only prima facie evidence to establish that Heredia-Gallegos is domiciled in Colorado. See Tribe Collective, LLC v. Kinsale Ins. Co., No. CIV-22-00788-PRW, 2023 WL 4401102, at *2 (W.D. Okla. July 7, 2023) (“In diversity cases, as here, the facts disclosed on the record as a whole at the time of removal-including the state-court petition and notice of removal-must establish the citizenship of all defendants and plaintiffs. When the parties' citizenship is not set forth in the state-court petition, the defendant, seeking to remove based on diversity, must plead these facts in the notice of removal.”)
On August 30, 2023, American Family filed a Supplemental Brief asserting new jurisdictional facts to support the contention that Heredia-Gallegos is not a citizen of Colorado. [ See generally #35] Even if the court were to consider the Supplemental Brief, removal is still improper, because American Family has procedurally erred in failing to obtain unanimous consent from all Defendants to remove the case. 28 U.S.C. § 1446 outlines the procedure for removing a civil action from state to federal court. It reads: “When a civil action is removed solely under section 1441(a), all defendants who have been properly joined and served must join in or consent to the removal of the action.” 28 U.S.C. § 1446(b)(2)(A); see also Sherrets, 2022 WL 1078910, at *3 (referring to this mandate as the “unanimity rule”). “Removal statutes are to be strictly construed.” Fajen v. Found. Reserve Ins. Co., 683 F.2d 331, 333 (10th Cir. 1982). Therefore, “[t]he failure of all defendants to consent to removal will result in remand.” Sherrets, 2022 WL 1078910, at *3 (quoting Padilla v. Am. Modern Home Ins. Co., 282 F.Supp.3d 1234, 1254-55 (D.N.M. 2017)); see also Lopez v. Lowe's Home Centers L.L.C., No. 21-CV-03487-PAB, 2022 WL 59118, at *2 (D. Colo. Jan. 6, 2022) (“A removal that does not comply with the express statutory requirements for removal ‘can fairly be said to render the removal defective and justify a remand.'” (quoting Huffman v. Saul Holdings Ltd. P'ship, 194 F.3d 1072, 1077 (10th Cir. 1999)); Centura Health Corp. v. Agnew, No. 18-CV-00569-RBJ, 2018 WL 3454976, at *3 (D. Colo. July 18, 2018) (same).
For the foregoing reasons, if this Recommendation is adopted, the Court respectfully RECOMMENDS Plaintiff's Motion to Strike Defendant's Supplemental Brief [#36], which has been referred to this Court [#37], be DENIED AS MOOT.
Here, American Family indicates that “[u]pon information and belief, Defendant Rafael Heredia-Gallegos was served in the Weld County Jail on April 13, 2023.” [#1 at ¶ 5] However, American Family does not indicate that Heredia-Gallegos consents to removal. To the contrary, American Family's Notice of Removal reads: “Defendant Heredia-Gallegos's express consent is not required for purposes of this removal [because] Plaintiff's claims against American Family are not properly joined to his personal injury claims against Heredia-Gallegos.” [Id. at ¶ 24] However, as detailed above, the Court has found that Plaintiff's claims against Heredia-Gallegos were properly joined. Therefore, the unanimity rule is not excused. Accordingly, the Court respectfully RECOMMENDS that the Motion be GRANTED. See Fajen, 683 F.2d at 333 (“all doubts are to be resolved against removal”).
IV. CONCLUSION
For the reasons outlined above, the Court respectfully RECOMMENDS that the Motion for Remand [#25] be GRANTED and that Plaintiff's Motion to Strike Defendant's Supplemental Brief [#36] be DENIED AS MOOT.
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, 57980 (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).