Suarez v. Anthem, Inc.

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT September 22, 2017
_________________________________
Elisabeth A. Shumaker
Clerk of Court
JEANNETTE A. SUAREZ,
Plaintiff - Appellant,
v. No. 17-1073
(D.C. No. 1:15-CV-01082-RM-MJW)
ANTHEM, INC., f/k/a WellPoint, (D. Colo.)
Defendant - Appellee.
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ORDER AND JUDGMENT*
_________________________________
Before KELLY, MURPHY, and MATHESON, Circuit Judges.
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Plaintiff-Appellant Jeannette Suarez, appearing pro se, appeals from the district
court’s grant of summary judgment in favor of Defendant-Appellee Anthem, Inc.
(“Anthem”) on her Americans with Disabilities Act (“ADA”) claims. The parties are
familiar with the facts and we need not restate them here. The district court adopted the
report and recommendation of the magistrate judge after considering Ms. Suarez’s
objections. Although Anthem objected on the grounds that the objections were untimely,
*
This order and judgment is not binding precedent, except under the doctrines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.
the district court ruled that “it is not perfectly clear from the record when plaintiff was
served with the R&R, thus triggering the time to object. Based upon its own review, the
Court does not consider plaintiff’s objections to be untimely.” I R. 659. Though we
doubt that “perfect clarity” as to service is required, the district court made no findings to
suggest that the date of service was anything other than what the court’s records
indicated.
On appeal, Anthem argues that Ms. Suarez waived review not only by failing to
file an opposition to its summary judgment motion, but also by failing to timely object to
the magistrate judge’s report and recommendation. We consider the latter point first.
A review of the district court docket sheet and the notice of electronic filing
reflects that the report and recommendation was mailed to Ms. Suarez on August 23,
2016; hence service was complete upon mailing.1 Fed. R. Civ. P. 5(b)(2)(C). At most,
Ms. Suarez had 14 days plus three days mailing (until August 9, 2016) to file her
objections. 28 U.S.C. § 636(b)(1)(C); Fed. R. Civ. P. 6(d). She did not file her
objections until September 16, 2017. Ordinarily, her objections would be untimely.
However, on August 7, 2016, the district court entered a text only order (in the
course of resolving another motion) “reminding” Ms. Suarez that she had 14 days from
receiving the report and recommendation to object. Of course, this is inconsistent with
Fed. R. Civ. P. 72(b)(2) and 28 U.S.C. §636(b)(1), which start the 14-day period running
upon service, not receipt. While the district court has the power to extend to the time sua
1
In addition, Anthem states that it emailed a copy of the report and
recommendation to Ms. Suarez on August 23, 2016.
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sponte before the time period has run, Fed. R. Civ. P. 6(b)(1)(A), that is not what
happened here.
Ms. Suarez indicates that she received the report and recommendation on
September 2, 2016, and filed her objections on September 16, 2016. Given the district
court’s order suggesting that this was appropriate and her possible reliance on that order,
we will not construe Ms. Suarez’s objections as untimely.
That said, we affirm for substantially the same reasons set forth in the magistrate
judge’s report and recommendation and the district court’s order rejecting Ms. Suarez’s
challenges. We agree with Anthem that Ms. Suarez’s opening submission is
noncompliant with Fed. R. App. P. 28 and lacks substantive argument, citations to the
record, and legal authority in support of her claims. Though she is pro se, she still must
adhere to the rules. Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840−841
(10th Cir. 2005).
AFFIRMED. Given the lack of a rational argument on the law and the facts on
appeal, we DENY IFP status. All other pending motions are denied.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
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