F I L E D

United States Court of Appeals

Tenth Circuit

MAR 16 1998

PATRICK FISHER

Clerk

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

KATHY MARTINEZ; MARLA FISHER; KATHERYN

GURULE; MARSHA WENZEL; SONIA GANLEY; JOY

GASS; GAYLE DEUTSCH, also known as Marcia Wolff;

PATSY ALLGOOD; VANGIE FIGUEROA; ELIZABETH

CVERNA; FRANK H. CVERNA; SHEREE STEVENS;

MICHAEL C. CRAWFORD; ANNE GEORGE; CECILIA

RIVERA; RHONDA CRAIG; WILLIAM J. CRAIG;

SUSAN PRYOR; FRANK N. PRYOR; FLORENCE

RODRIGUEZ; DONNY RODRIGUEZ; MARY SNIDER;

ALBERT SNIDER; N. JOAN YORK; JUDY ARAGON;

RITA DODSON; STEVE A. DODSON; SUE ANN

GARCIA; WILLIAM W. GARCIA; GLORIA RAEL;

FLORENTINO RAEL; DANETTE SHIRLEY; ROBERT

R. SHIRLEY; REBECCA JONES; LORI HARTLEY;

ROBERT THOMAS HARTLEY; CONNIE MATLOCK;

DARLA BEACH; GAYE MOESSER; TAMMY J.

KIRSCHMAN; SCHIRETE ZICK; DIANNE GARCIA;

PHIL A. GARCIA; BARBARA ALLRED; EDGAR

ALLRED; SHARON HAZELWOOD; MICHELLE T.

JONES; HAROLD J. JONES; RUTH PORTER;

RICHARD PORTER; EDITH SHAW; ALBERTA

KUSNETZ; NORMAN KUSNETZ; DEBBIE DOMSON;

CLAUDIA GATEWOOD; and ERIN ROSS,

Plaintiffs-Appellees, No. 97-2080

 (CIV-96-8007-JC)

 (D. New Mex.)

v.
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HEYER-SCHULTE, INC.; AMERICAN HOSPITAL

SUPPLY CORPORATION; BAXTER INTERNATIONAL

CORPORATION; BAXTER HEALTHCARE; GENERAL

ELECTRIC COMPANY; SURGITEK, INC.; BRISTOLMYERS SQUIBB COMPANY; NATURAL SURGICAL

SPECIALTIES; AESTHETECH CORPORATION;

COOPERSURGICAL, INC.; CUI CORPORATION;

FOAMEX, L.P.; FOAMEX PRODUCTS, INC.; KNOLL

INTERNATIONAL HOLDING, INC.; '21'

INTERNATIONAL HOLDINGS, INC.; MARKHAM

MEDICAL INTERNATIONAL, INC.; MEDICAL

ENGINEERING CORPORATION; SCOTFOAM

CORPORATION; COOPER COMPANIES, INC., formerly

known as Coopervision, Inc.; DOW CORNING

CORPORATION; DOW CORNING WRIGHT

CORPORATION; BIO-MANUFACTURING, INC.;

BIOPLASTY, INC.; HULS AMERICA,

INCORPORATED; INAMED CORPORATION;

MCGHAN MEDICAL CORPORATION; MCGHAN

NUSIL CORP.; MENTOR CORPORATION;

MINNESOTA MINING AND MANUFACTURING

CORPORATION; SIROD CORPORATION; UNION

CARBIDE CHEMICALS AND PLASTICS COMPANY,

INCORPORATED; UNION CARBIDE CORPORATION;

UROPLASTY, INCORPORATED; WILSHIRE

TECHNOLOGIES, INC.; MEC SUBSIDIARY

CORPORATION, formerly known as Surgitek, Inc.; 1211

FOAM COMPANY; 1211 INTERNATIONAL

HOLDINGS, INC.; NUSIL TECHNOLOGY, formerly

known as McGhan Nusil Corp.; DOW CHEMICAL

COMPANY, a foreign corporation; ST. JOSEPH

HEALTHCARE SYSTEM; RICHARD GOODING, Dr.;

and FRANK HERHAHN, Dr., 
*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.

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Defendants,

________________________________________________

A. GILL DYER and HILLARY THOMAS MURPHY,

Intervenors-Appellants.

 

ORDER AND JUDGMENT*

Before ANDERSON, McKAY, and LUCERO, Circuit Judges.

After examining the briefs 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); 10th Cir. R. 34.1.9. The case is therefore ordered

submitted without oral argument.

Intervenors-Appellants appeal the district court’s dismissal with prejudice of their

complaints and the court’s award of costs to Plaintiffs-Appellees’ counsel. Because the

district court dismissed with prejudice the claims of a party, we exercise jurisdiction

pursuant to 28 U.S.C. § 1291.

In its dismissal, the district court adopted the magistrate judge’s Proposed Findings
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and Recommendations filed February 10, 1997, without considering Intervenors’

objections to those findings and recommendations. The court determined that

Intervenors’ objections were untimely filed. See Appellants’ App. at 50-52

(Memorandum Opinion and Order, filed March 7, 1997). Intervenors contend that the

district court erroneously calculated the time for filing objections to the magistrate

judge’s findings and recommendations, and, therefore, the court failed to conduct the

requisite de novo review of those findings and recommendations and Intervenors’

objections. Intervenors then ask this court to address the merits of their intervention

claims. Plaintiffs agree that the district court miscalculated the time to file objections. 

However, Plaintiffs argue that the case should be remanded to the district court for de

novo review of Intervenors’ objections and Plaintiffs’ responses to those objections.

After reviewing the record, we conclude that the district court erred in calculating

the timeliness of Intervenors’ objections to the magistrate judge’s findings and

recommendations under Federal Rule of Civil Procedure 6. Pursuant to 28 U.S.C.

§ 636(b)(1), we vacate the district court’s Memorandum Opinion and Order and remand

the case for the district court’s de novo review of the timely filed objections to the

magistrate judge’s Proposed Findings and Recommendations. See Northington v. Marin,

102 F.3d 1564, 1570 (10th Cir. 1996); Summers v. Utah, 927 F.2d 1165, 1167-68 (10th

Cir. 1991). In view of our ruling, upon remand the case will be in the same posture as it
1

 Our review of the applicable Federal Rules of Civil Procedure, the record, and

the civil docket indicates that Intervenor A. Gill Dyer timely filed his objections to the

magistrate judge’s recommended disposition on February 28, 1997. Those objections

were entered into the docket on March 3, 1997. We have determined that, under Federal

Rules of Civil Procedure 5(b) and (6), Intervenors had until March 3, 1997, to timely file

objections.

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was on the day on which Intervenors’ objections were timely filed, February 28, 1997.1

REVERSED and REMANDED.

Entered for the Court

Monroe G. McKay

Circuit Judge