                                                                          FILED
                                                               United States Court of Appeals
                                                                       Tenth Circuit

                                                                     January 7, 2008
                      UNITED STATES COURT OF APPEALS
                                                                   Elisabeth A. Shumaker
                            FOR THE TENTH CIRCUIT                      Clerk of Court



    STANTON A. SMITH,

                Plaintiff-Appellant,

    v.                                                   No. 07-3114
                                                  (D.C. No. 06-CV-2053-JWL)
    SDI INDUSTRIES, INC.,                                  (D. Kan.)

                Defendant-Appellee.


                             ORDER AND JUDGMENT *


Before KELLY, McKAY, and ANDERSON, Circuit Judges.



         Plaintiff Stanton A. Smith appeals from an order of the district court

adopting the magistrate judge’s recommendation to grant summary judgment to

defendant SDI Industries, Inc. because his claims against SDI Industries were

time-barred. Our review is precluded by plaintiff’s failure to file objections to

the magistrate judge’s report and recommendation, and we affirm.



*
       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)(2); 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not binding precedent, except under the doctrines of law of the case, res judicata,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. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
      On January 3, 2006, plaintiff, through his original counsel, initiated a

products liability action in state court against Siemens Dematic Corporation, the

alleged manufacturer and supplier of a conveyor belt system installed at the

J.C. Penney distribution center where plaintiff worked. Plaintiff alleged that he

was injured on January 9, 2004, when a thirty-pound box fell off the conveyor

belt system and landed on his head. Siemens removed the case to federal court.

      Through deposition testimony, plaintiff discovered that the manufacturer

and supplier of the conveyor belt system was defendant SDI Industries, not

Siemens. Plaintiff filed a motion to substitute defendants, which was granted,

and, on October 31, 2006, plaintiff filed an amended complaint naming SDI

Industries as a defendant.

      SDI Industries filed a motion to dismiss or, in the alternative, for summary

judgment, arguing that plaintiff’s claims were barred by the applicable two-year

statute of limitations. The magistrate judge issued a thorough Report and

Recommendation, concluding that plaintiff’s claims against SDI Industries were

time-barred because the uncontroverted facts showed that SDI did not have notice

of plaintiff’s claims during the limitations period and his claims therefore did not

relate back to the filing of the original complaint. Plaintiff did not file objections

to the magistrate judge’s report. The district court noted that no objections had

been filed, adopted the magistrate judge’s recommendation, and granted summary

judgment to SDI Industries. Plaintiff filed this appeal pro se.

                                          -2-
      We ordered the parties to address the procedural issue of whether plaintiff’s

failure to file objections to the magistrate judge’s Report and Recommendation

waived appellate review of the merits. “This court has adopted a firm waiver rule

under which a party who fails to make a timely objection to the magistrate judge’s

findings and recommendations waives appellate review of both factual and legal

questions.” Morales-Fernandez v. INS, 418 F.3d 1116, 1119 (10th Cir. 2005).

We have held that “[t]his rule does not apply, however, when (1) a pro se litigant

has not been informed of the time period for objecting and the consequences of

failing to object, or when (2) the ‘interests of justice’ require review.” Id.

We have further held that

      in counseled, civil, nonhabeas cases, the merits of the underlying
      case should not be considered in determining whether the interests of
      justice exception has been met. . . . [Rather], in counseled cases,
      determination of the interests of justice exception should focus
      instead on the facts that purport to excuse the lack or untimeliness of
      the filing of objections.

Key Energy Res., Inc. v. Merrill (In re Key Energy Res., Inc.), 230 F.3d 1197,

1200 (10th Cir. 2000).

      Plaintiff, through his new counsel, argues that the waiver rule is not

jurisdictional and should not apply in this case because the failings of plaintiff’s

original counsel kept plaintiff in the dark about the status of his lawsuit and

prevented him from protecting his own interests. He argues that we should

expand our exceptions to the firm waiver rule to include “litigants . . . who were


                                          -3-
effectively abandoned by their counsel[,]” Aplt. Mem. Br. at 2, and requests that

we treat plaintiff as if he had been pro se in the district court, see id. at 5.

Defendant argues that the waiver rule should apply.

         Plaintiff’s arguments on appeal are unavailing. Under the circumstances of

this case, the exceptions to our firm waiver rule do not apply. A claim for

ineffective assistance of counsel generally does not apply in civil actions, and

plaintiff’s only arguable recourse would be a claim for legal malpractice against

his former counsel. See Nelson v. Boeing Co., 446 F.3d 1118, 1119 (10th Cir.

2006).

         AFFIRMED.

                                                        Entered for the Court



                                                        Stephen H. Anderson
                                                        Circuit Judge




                                            -4-
