                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                   June 28, 2011
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                   Clerk of Court
                            FOR THE TENTH CIRCUIT


    RONALD J. NAGIM;
    JANET NAGIM,

                Plaintiffs-Appellants,

    v.                                                   No. 10-1531
                                            (D.C. No. 1:10-CV-01925-REB-KLM)
    STEPHEN M. IRVING; JOSEPH E.                          (D. Colo.)
    ABRAHAM, JR.; SANDRA
    ABRAHAM; JOSEPH E. ABRAHAM,
    III; ALICIA PELLEGRIN;
    LOUISIANA STATE UNIVERSITY,

                Defendants-Appellees.


                             ORDER AND JUDGMENT *


Before TYMKOVICH and BALDOCK, Circuit Judges, and BRORBY, Senior
Circuit Judge.


         This appeal is resolved by application of our firm waiver rule. Ronald and

Janet Nagim brought this action pro se in Colorado state court, alleging various

claims against defendants, all of whom are residents of Louisiana. Defendants


*
       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not binding precedent, except under the doctrines of law of the case, res judicata,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.
removed the action to federal court and moved to dismiss for lack of personal

jurisdiction, among other things. The district court referred the matter to a

magistrate judge who reviewed the Nagims’ claims and agreed that personal

jurisdiction was lacking. Accordingly, the magistrate judge recommended

dismissal without prejudice and gave the Nagims fourteen days to file written

objections to the report and recommendation. The magistrate judge explicitly

warned the Nagims that “failure to serve and file specific, written objections

waives de novo review . . . by the District Judge and also waives appellate review

of both factual and legal questions.” R. at 179 (citations omitted). The

magistrate judge added that “objections to [the] Recommendation must be both

timely and specific to preserve an issue for . . . appellate review.” Id. Despite

this warning, the Nagims did not file written objections.

      Without any objections, the district court reviewed the magistrate judge’s

report and recommendation for plain error and, finding none, dismissed the case.

Thereafter, the Nagims initiated this appeal, and we afforded them an opportunity

to show cause why their failure to object did not waive appellate review under the

firm waiver rule. They declined that opportunity and instead filed a series of

motions that seem to assert the merits of the case. Defendants, for their part, urge

us to apply waiver principles and affirm the district court.

      “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

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waives appellate review of both factual and legal questions.” Morales-Fernandez

v. INS, 418 F.3d 1116, 1119 (10th Cir. 2005). “This 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. (quotation omitted).

      The first exception has no application here because the magistrate judge

clearly alerted the Nagims that failing to file objections within fourteen days of

the report and recommendation would waive appellate review of the merits of the

case. We thus examine the second exception—whether the interests of justice

warrant suspending the waiver rule. We conclude they do not. The concept of

“interests of justice” is “elusive,” but we consider “factors such as a pro se

litigant’s effort to comply, the force and plausibility of the explanation for his

failure to comply, and the importance of the issues raised.” Duffield v. Jackson,

545 F.3d 1234, 1238 (10th Cir. 2008). When considering

      whether the importance of the issues raised might trigger the interests
      of justice exception, we have said that, in many respects, the interests
      of justice analysis we have developed, which expressly includes
      review of a litigant’s unobjected-to substantive claims on the merits,
      is similar to reviewing for plain error.

Id. (alteration and quotation omitted). A showing of plain error entails “(1) error,

(2) that is plain, which (3) affects substantial rights, and which (4) seriously

affects the fairness, integrity, or public reputation of judicial proceedings.” Id.

(quotation omitted).

                                          -3-
      The Nagims made no apparent attempt to comply with the filing deadline to

file objections, and offer no explanation for their failure to do so. They could

have sought an extension from the district court, but they did not; instead, they

filed this appeal. We allowed them an opportunity to show cause why the waiver

rule should not apply, but the Nagims’ response simply argued the merits of the

case, without addressing the basis for the magistrate judge’s recommendation.

      On that score, the magistrate judge recommended dismissal of the

individual defendants for want of personal jurisdiction because they are all

residents of Louisiana. Notwithstanding “serious doubts that Defendants took any

action in Colorado or directed at Colorado,” the magistrate judge determined that

the Nagims “arguably alleged that Defendants purposefully directed their actions

at Colorado.” R. at 172. Nevertheless, the magistrate judge concluded that

exercising personal jurisdiction over these defendants “would offend traditional

notions of fair play and substantial justice,” see Employers Mut. Cas. Co. v.

Bartile Roofs, Inc., 618 F.3d 1153, 1161 (10th Cir. 2010) (quotation omitted),

because none of the traditionally considered factors weighed in favor of

exercising jurisdiction. 1 Further, the magistrate judge determined that rather than

1
      These factors are

      (1) the burden on the defendant, (2) the forum state’s interests in
      resolving the dispute, (3) the plaintiff’s interest in receiving
      convenient and effectual relief, (4) the interstate judicial system’s
      interest in obtaining the most efficient resolution of controversies,
                                                                        (continued...)

                                         -4-
transfer the action to the proper venue, dismissal without prejudice was

appropriate because all of the Nagims’ claims appeared to be time-barred before

they initiated this suit and, in any event, appeared to be meritless. Finally, the

magistrate judge recommended that the claims against defendant Louisiana State

University, a state entity, be dismissed with prejudice for lack of subject matter

jurisdiction under the Eleventh Amendment.

         We have examined the record, the parties’ materials, and the relevant

legal authority, and we find no error in the magistrate judge’s proposed

disposition. Accordingly, the interest-of-justice exception does not suspend

application of the firm waiver rule, and the judgment of the district court is

AFFIRMED. The Nagims’ motion to seal attachments, which was provisionally

granted, is DENIED as moot, and the Clerk is directed to return these materials

to the Nagims. All other outstanding motions and requests for relief are

DENIED. The Nagims’ motion to proceed on appeal in forma pauperis




1
    (...continued)
          and (5) the shared interest of the several states or foreign nations in
          furthering fundamental social policies.

Dudnikov v. Chalk & Vermilion Fine Arts, Inc., 514 F.3d 1063, 1080
(10th Cir. 2008) (quotation and brackets omitted).


                                             -5-
is DENIED because they have failed to show a reasoned, non-frivolous argument;

they are directed to pay the entire filing fee immediately.


                                                     Entered for the Court



                                                     Wade Brorby
                                                     Senior Circuit Judge




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