Full Opinion (html_with_citations)

Appellate Case: 22-1226       Document: 010110974614     Date Filed: 12/27/2023     Page: 1
                                                                                  FILED
                                                                      United States Court of Appeals
                                        PUBLISH                               Tenth Circuit

                        UNITED STATES COURT OF APPEALS                         October 17, 2023

                                                                          Christopher M. Wolpert
                              FOR THE TENTH CIRCUIT                           Clerk of Court
                          _________________________________

  RANDY DEAN QUINT; JOHN LINN;
  MARK MOLINA, individually and on
  behalf of all others similarly situated,

        Plaintiffs - Appellants,

  v.                                                          No. 22-1226

  VAIL RESORTS, INC., a Delaware
  corporation,

        Defendant - Appellee.
                       _________________________________

                      Appeal from the United States District Court
                              for the District of Colorado
                         (D.C. No. 1:20-CV-03569-DDD-GPG)
                        _________________________________

 Submitted on the briefs: *

 Edward P. Dietrich, Edward P. Dietrich, APC, Beverly Hills, California, for
 Plaintiffs-Appellants.

 Michael H. Bell, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., ** Denver, Colorado,
 for Defendant-Appellee.


        *
         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.
        **
          Steven R. Reid withdrew from the case and is no longer at Ogletree,
 Deakins, Nash, Smoak & Stewart, P.C. However, he is listed as counsel of record on
 the appellee’s response brief.
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                          _________________________________

 Before TYMKOVICH, BALDOCK, and McHUGH, Circuit Judges.
                  _________________________________

 TYMKOVICH, Circuit Judge.
                   _________________________________

       Randy Dean Quint, John Linn, and Mark Molina (“Colorado Plaintiffs”) filed a

 class and collective action against Vail Resorts, Inc., in the District of Colorado

 alleging violations of federal and state labor laws (“Colorado Action”). Different

 plaintiffs filed similar lawsuits against a Vail subsidiary, which are pending in

 federal and state courts in California. After Vail gave notice that it had agreed to a

 nationwide settlement with some of the other plaintiffs, Colorado Plaintiffs filed an

 emergency motion asking the district court to enjoin Vail from consummating the

 settlement. The district court denied their motion, and Colorado Plaintiffs filed this

 interlocutory appeal. Exercising jurisdiction under
28 U.S.C. § 1292
(a)(1), we

 affirm.

 I.    Background

       The Colorado Action alleges that certain of Vail’s nationwide employment

 practices violate the Fair Labor Standards Act and state law. Colorado Plaintiffs seek

 payment of unpaid wages, overtime, and other benefits for themselves and similarly

 situated parties. Five other actions filed by different plaintiffs in California asserted

 similar claims against Vail subsidiaries.

       Vail notified Colorado Plaintiffs and the district court that it had negotiated a

 nationwide settlement with other plaintiffs encompassing all claims for alleged

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 unpaid wages and any other violation of state or federal law involving Vail and its

 subsidiaries (“Settlement”). Vail initially indicated the Settlement would be

 submitted for approval in the district court in the Eastern District of California, but

 the settling parties later stipulated to stay the California federal-court actions and

 seek approval of the Settlement in a California state-court action. Colorado Plaintiffs

 filed an emergency motion seeking an injunction under the All Writs Act,
28 U.S.C. § 1651
, “to enjoin [Vail] from consummating a facially collusive ‘reverse auction’

 settlement in a recently filed placeholder California state court action or any other

 court.” Aplt. App., Vol. 2 at 410 (“Injunction Motion”).

        A magistrate judge issued a report and recommendation (“R&R”) to deny the

 Injunction Motion, concluding the relief Colorado Plaintiffs sought was barred by the

 Anti-Injunction Act,
28 U.S.C. § 2283
. The district court overruled Colorado

 Plaintiffs’ objections, accepted and adopted the R&R, and denied the Injunction

 Motion. Colorado Plaintiffs appealed. 1

 II.    Discussion

        Colorado Plaintiffs argue the district court erred by: (1) applying the wrong

 standard in reviewing the R&R; (2) holding the Anti-Injunction Act applies to an

 injunction against Vail rather than the state court; (3) declining to consider one



        1
          Vail argues this appeal is moot because the state court has granted final
 approval of the Settlement. But it fails to demonstrate that “it is impossible for a
 court to grant any effectual relief whatever to” Colorado Plaintiffs. Chafin v. Chafin,
568 U.S. 165, 172
 (2013) (internal quotation marks omitted).

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 exception to the Anti-Injunction Act; (4) holding a second exception to the

 Anti-Injunction Act did not apply; (5) failing to enforce the first-to-file rule; and

 (6) abstaining under the Colorado River doctrine. 2

       A.     Standard of Review Applied to R&R

       Colorado Plaintiffs first argue the district court applied the wrong standard in

 reviewing the magistrate judge’s R&R. The court concluded the R&R was “not

 dispositive of a party’s claim or defense,” so it should “‘modify or set aside any part

 of the order that is clearly erroneous or is contrary to law.’” Aplt. App., Vol. 5 at

 1186 (quoting Fed. R. Civ. P. 72(a)). Colorado Plaintiffs contend the court erred in

 concluding the R&R was not dispositive and in failing to apply de novo review.

 They argue we must remand for the district court to apply the correct standard of

 review.

       Vail contends Colorado Plaintiffs waived this issue by arguing for the

 clearly-erroneous-or-contrary-to-law standard of review in their objections to the

 R&R. In Birch v. Polaris Industries, Inc.,
812 F.3d 1238, 1247
 (10th Cir. 2015), we

 held appellants waived their de-novo-review argument by agreeing with the district

 court that it had correctly articulated the standard as clearly erroneous or contrary to

 law. But the waiver question here is not as clear as in Birch. In this case the

 magistrate judge issued a report and recommendation rather than entering an order



       2
          Colorado Plaintiffs also contend the district court erred in concluding the
 facts did not support their contention that the Settlement is collusive. We need not
 address that issue to resolve this appeal.
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 and also cited Federal Rule of Civil Procedure 72(b), which applies to dispositive

 motions. See Aplt. App., Vol. 5 at 1083 & n.2. Although Colorado Plaintiffs did

 assert the R&R was clearly erroneous and contrary to law, they also argued for

 de novo review. See id. at 1112. And the district court chided them for misstating

 the standard of review in their objections, suggesting that it rejected their contention

 regarding de novo review. See id. at 1189 n.1. We decline to find a waiver under

 these circumstances. See United States v. Walker,
918 F.3d 1134, 1153
 (10th Cir.

 2019) (“To be clear, whether issues should be deemed waived is a matter of

 discretion.”).

        We review de novo whether the district court applied the correct standard in

 reviewing the R&R. See Birch,
812 F.3d at 1246
. We agree with Colorado Plaintiffs

 that the court was required to review the R&R de novo, but we decline to remand

 because the error was harmless.

                  1.   Dispositive Motion

        Magistrate judges are “not Article III judicial officers” and their “jurisdiction

 and powers . . . are governed by
28 U.S.C. § 636
, and limited by the Constitution.”

 Ocelot Oil Corp. v. Sparrow Indus.,
847 F.2d 1458, 1461
 (10th Cir. 1988). Section

 636(b) “establishes that magistrates may hear and determine any pretrial matters

 pending before the court, save for eight excepted motions. These eight motions are

 generally referred to as ‘dispositive’ motions.”
Id.
 (emphasis added) (footnote

 omitted). “While magistrates may hear dispositive motions, they may only make

 proposed findings of fact and recommendations, and district courts must make

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 de novo determinations as to those matters if a party objects to the magistrate’s

 recommendations.”
Id. at 1462
; see § 636(b)(1)(B), (C).

       The eight motions enumerated in § 636(b)(1)(A) that are excepted from a

 magistrate judge’s authority to “hear and determine” include “a motion for injunctive

 relief.” Because Colorado Plaintiffs’ Injunction Motion sought injunctive relief, it

 was a “motion excepted in subparagraph (A),” § 636(b)(1)(B). Thus, the magistrate

 judge could not hear and determine that motion; rather, it could only “submit to a

 judge of the court proposed findings of fact and recommendations for the disposition,

 by a judge of the court.” Id. And the district court was required to “make a de novo

 determination of those portions of the report or specified proposed findings or

 recommendations to which objection is made.” § 636(b)(1); see also Fed. R. Civ. P.

 72(b)(3).

       Vail asserts this analysis requires an additional step: determining whether a

 motion for injunctive relief is dispositive of a claim or defense under Federal Rule of

 Civil Procedure 72. It maintains the Injunction Motion was not dispositive in this

 sense. But Vail misconstrues § 636(b)(1). That section nowhere refers to motions as

 dispositive or nondispositive. It does, however, unambiguously list eight motions a

 magistrate judge may not hear and determine. The dispositive/nondispositive-motion

 distinction comes from Rule 72, which “specifies the procedures to be used by

 magistrates with regard to pretrial matters.” Ocelot Oil Corp.,
847 F.2d at 1462
.




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 That Rule

       reflects the division in section 636(b) between matters as to which
       magistrates may issue orders and matters as to which magistrates may make
       only proposed findings of fact and recommendations. Significantly, the
       Rule does not list the specific motions which fall into each category, but
       simply refers to matters as either “dispositive” or “not dispositive” of a
       claim or defense.
Id.
 (quoting Rule 72). The two categories used in Rule 72(a) and (b)—nondispositive

 and dispositive—are tied to referrals under subsection (A) and subsection (B) of

 § 636(b)(1). See Ocelot Oil Corp.,
847 F.2d at 1462
.

       We have also concluded that “motions not designated on their face as one of

 those excepted in [§ 636(b)(1)](A) are nevertheless to be treated as such a motion

 when they have an identical effect.” Id. Thus, for example, a dismissal of claims

 with prejudice, “whether as a discovery sanction or for some other reason, constitutes

 the involuntary dismissal of an action within the meaning of section 636(b)(1)(A).”

 Id. at 1463. This is so because “[t]he Constitution requires that Article III judges

 exercise final decisionmaking authority” rather than magistrate judges. Id.

       In contrast, we have never held, nor have we found authority for the

 proposition, that a magistrate judge may “hear and determine” a type of motion

 expressly excepted in § 636(b)(1)(A)—whether it be a motion for injunctive relief or

 any other listed motion—on the ground that it is not dispositive of a claim or defense

 under the rubric in Rule 72. 3 Such a conclusion would expand the magistrate judge’s


       3
         Vail cites only an unpublished district court decision, which is not binding on
 us and with which we respectfully disagree. See McGee v. Pacheco,
 No. 20-cv-00328-CMA-STV,
2020 WL 1872386
, at *2 (D. Colo. Apr. 14, 2020).
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 authority beyond its unambiguous, congressionally defined scope in § 636(b)(1).

 Rather, the motions “explicitly listed in subsection (A) are dispositive within the

 context of section 636.” Ocelot Oil Corp.,
847 F.2d at 1463
; see also PowerShare,

 Inc. v. Syntel, Inc.,
597 F.3d 10, 13
 (1st Cir. 2010) (“Dispositive motions include

 those enumerated in
28 U.S.C. § 636
(b)(1)(A) . . . .”); 12 Charles Alan Wright &

 Arthur R. Miller, Federal Practice and Procedure § 3068.2 (3d ed. Apr. 2023

 update) (“[A]t the very least, the eight motions listed in the statute will be governed

 by the procedures and de novo review of Rule 72(b).”). The district court therefore

 erred by construing the R&R, which considered a motion seeking injunctive relief, as

 addressing a nondispositive matter under Rule 72(a) and by applying the

 clearly-erroneous-or-contrary-to-law review standard.

              2.     Harmless Error

       But we agree with Vail that the district court’s error in applying the review

 standard applicable to nondispositive matters was harmless. We conclude that the

 district court’s error was not prejudicial to Colorado Plaintiffs. See
28 U.S.C. § 2111

 (“On the hearing of any appeal . . . in any case, the court shall give judgment after an

 examination of the record without regard to errors or defects which do not affect the

 substantial rights of the parties.”). With one exception, we can resolve this appeal

 based on the legal issues raised by the parties. Colorado Plaintiffs do not contend

 otherwise. See Aplt. Opening Br. at 21 (stating the disposition of this appeal turns on




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 issues of law). 4 “[T]he difference between a de novo review of a record and a review

 under the clearly erroneous standard is significant.” Ocelot Oil Corp.,
847 F.2d at 1464
. But “the phrase ‘contrary to law’ indicates plenary review as to matters of

 law.” Haines v. Liggett Grp. Inc.,
975 F.2d 81
, 91 (3d Cir. 1992); see also 12

 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 3069

 (3d ed. Apr. 2023 update) (“Regarding legal issues, the language ‘contrary to law’

 appears to invite plenary review.”). Colorado Plaintiffs do not argue the district

 court improperly applied the “contrary to law” standard in deciding legal issues.

 Thus, by determining whether the R&R was “contrary to law,” the district court

 actually applied plenary review to the legal issues that form the basis for this appeal.

 And as Colorado Plaintiffs acknowledge, see Aplt. Opening Br. at 28 n.2, we equate

 plenary and de novo review, see City of Cambridge Ret. Sys. v. Ersek,
921 F.3d 912, 917-18
 (10th Cir. 2019).

       B.     The Anti-Injunction Act

       Colorado Plaintiffs filed the Injunction Motion seeking an injunction under the

 All Writs Act, which grants federal courts authority to “issue all writs necessary or

 appropriate in aid of their respective jurisdictions and agreeable to the usages and

 principles of law,”
28 U.S.C. § 1651
(a). But the Anti-Injunction Act provides that

 “[a] court of the United States may not grant an injunction to stay proceedings in a


       4
          One issue raised in this appeal was subject to the district court’s discretion,
 but as we will explain, the record reflects that the court independently exercised its
 discretion and did not impermissibly defer to the magistrate judge’s recommendation.
 We therefore conclude a remand is also not necessary on that issue.
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  State court except as expressly authorized by Act of Congress, or where necessary in

  aid of its jurisdiction, or to protect or effectuate its judgments.”
28 U.S.C. § 2283
.

  Thus, “the Anti-Injunction Act generally prohibits federal courts from enjoining

  state-court suits.” Tooele County v. United States,
820 F.3d 1183, 1186
 (10th Cir.

  2016) (citation omitted); see also Phelps v. Hamilton,
122 F.3d 1309, 1324-25

  (10th Cir. 1997) (“The Supreme Court has made clear that the statute imposes an

  absolute ban on federal injunctions against pending state court proceeding[s], in the

  absence of one of the recognized exceptions in the law.”).

        The district court held the Anti-Injunction Act barred the injunction Colorado

  Plaintiffs requested. They contend the court erred because (1) the Anti-Injunction

  Act does not apply to an injunction against Vail, or (2) an exception to the

  Anti-Injunction Act permits the relief they requested. We review these issues

  de novo. See Tooele County,
820 F.3d at 1187
.

               1.     Applicability of the Anti-Injunction Act

        Colorado Plaintiffs first contend the Anti-Injunction Act does not apply to the

  specific injunction they sought because they “asked the District Court only to enjoin

  Vail from submitting to a state court a collusive reverse auction settlement designed

  to extinguish the federal Colorado Action, not to ‘stay proceedings in a State court.’”

  Aplt. Opening Br. at 42 (quoting § 2283). They assert that, by its own terms, the

  Anti-Injunction Act is therefore inapplicable.

        We are not persuaded. First, Colorado Plaintiffs’ apparent assertion that, as a

  factual matter, “[a]n injunction against settlement does not ‘stay proceedings,’” id. at

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  43, ignores that the California state-court action has been focused on submission,

  approval, and appeal of the Settlement. Second, they cite no authority for the

  proposition that the Anti-Injunction Act does not prohibit enjoining a party from

  proceeding in state court. In Tooele County, for example, we held the

  Anti-Injunction Act precluded the district court from enjoining parties from

  prosecuting a state-court action. See
820 F.3d at 1185
 (describing order appealed as

  enjoining certain parties);
id. at 1192
 (holding “the district court erred by concluding

  that it could enjoin the state-court proceedings”).

        Tooele County is consistent with Supreme Court caselaw. In Donovan v. City

  of Dallas,
377 U.S. 408, 413
 (1964), the Court held that where a state court lacks

  power to restrain federal-court proceedings, it also may not restrain parties from

  proceeding in the federal court. In reference to the “rule that state courts are

  completely without power to restrain federal-court proceedings in in personam

  actions,” the Court said, “it does not matter that the prohibition here was addressed to

  the parties rather than to the federal court itself.”
Id.
 (footnote omitted). 5 Donovan

  relied on Peck v. Jenness,
48 U.S. 612, 625
 (1849). See
377 U.S. at 413
 n.12. Like

  this case, Peck involved a federal court’s power to enjoin a state court, see
48 U.S. at 624-25
. And the Court noted in Peck that it had previously reversed a federal-court

  order enjoining a defendant from proceeding in state court because, under a precursor

  to the Anti-Injunction Act, the federal court was precluded from staying state-court


        5
          We hold, infra at 18, that Colorado Plaintiffs fail to establish this action is in
  rem or quasi in rem, rather than in personam.
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  proceedings. See
id. at 625
; see also Mitchum v. Foster,
407 U.S. 225, 231-32
 (1972)

  (tracing history of Anti-Injunction Act to version cited in Peck); 17A Charles Alan

  Wright & Arthur R. Miller, Federal Practice and Procedure § 4221 & n.5 (3d ed.

  Apr. 2023 update) (same).

         Colorado Plaintiffs nonetheless argue the Anti-Injunction Act does not apply

  to an injunction enjoining Vail from consummating a state-court settlement because

  the All Writs Act authorizes a district court to enjoin a party before it from pursuing

  conflicting litigation in a state court. They rely on Hillman v. Webley,
115 F.3d 1461, 1469
 (10th Cir. 1997), but Hillman is not controlling on this point. First, our

  statement that “[t]he district court undoubtedly had the authority under the All Writs

  Act to enjoin parties before it from pursuing conflicting litigation in the state court,”
id.,
 was dicta. The district court in Hillman “did not pursue that route,”
id.,
 and the

  only issue before this court was the propriety of the district court’s so-called

  “removal” under the All Writs Act of an action from state court to federal court, see
id.
 at 1468 & n.4. Second, Hillman did not discuss the Anti-Injunction Act as a

  limitation on the district court’s authority under the All Writs Act to enjoin parties

  from litigating in state court.

         We reject Colorado Plaintiffs’ assertion that the Anti-Injunction Act does not

  apply to their Injunction Motion because they sought to enjoin Vail from

  consummating the settlement in state court rather than to enjoin the state court

  directly.



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               2.     Exceptions to the Anti-Injunction Act

        There are three exceptions to the prohibition in the Anti-Injunction Act that

  “[a] court of the United States may not grant an injunction to stay proceedings in a

  State court”: (1) Congress “expressly authorized” an injunction, (2) an injunction is

  “necessary in aid of [the federal court’s] jurisdiction,” or (3) an injunction is issued

  “to protect or effectuate [the federal court’s] judgments.”
28 U.S.C. § 2283
. These

  exceptions are construed narrowly, and we will “resolve doubts about the

  applicability of an exception in favor of allowing the state-court proceeding to

  continue.” Tooele County,
820 F.3d at 1188
.

        Colorado Plaintiffs have taken inconsistent positions on which exceptions they

  believe apply to their Injunction Motion. In that motion, they asserted that “at least

  two exceptions apply; the injunction is ‘necessary in aid of jurisdiction’ and ‘to

  protect or effectuate’ the Court’s judgments.” Aplt. App., Vol. 2 at 418 (quoting

  § 2283). They did not argue the first exception. In their reply, Colorado Plaintiffs

  added an argument about the authorized-by-Congress exception. The magistrate

  judge stated in the R&R: “Plaintiffs assert that the second and third exceptions apply

  in the instant motion. Plaintiffs do not argue that the first exception applies, thus this

  Court will not address it.” Id., Vol. 5 at 1090 (citation omitted). In their objections

  to the R&R, Colorado Plaintiffs pointed to their reply and argued only the first and

  second exceptions, dropping any reference to the third.




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        In reviewing the R&R, the district court noted:

        At various points in their motion and reply, Plaintiffs contend that all three
        exceptions apply. [The magistrate judge’s R&R] only addresses the second
        and third exceptions. But he did not have to discuss an argument raised
        only in the reply. Nor will I indulge Plaintiffs in a review of arguments not
        properly raised before [the magistrate judge].
  Id. at 1189 (footnote and citations omitted). The court added:

        I am growing concerned about Plaintiffs’ counsel’s trend of waiting to raise
        new arguments in reply briefs. . . . While I will not speculate as to whether
        these errors were intentional, I remind counsel that they have ethical
        obligations of candor to the court and general competency. Should such
        errors continue, I may have to take additional measures to ensure that
        Plaintiffs’ counsel adhere to their ethical obligations.
  Id. at 1189 n.1 (citation omitted). The district court then proceeded to review the

  R&R with regard to the second and third exceptions to the Anti-Injunction Act—

  those that Colorado Plaintiffs had raised in the Injunction Motion and that the R&R

  addressed.

        On appeal, Colorado Plaintiffs argue the first and second exceptions apply.

                      a.     Authorized-by-Congress Exception

        Colorado Plaintiffs contend the district court erred in declining to address the

  authorized-by-Congress exception on the ground it was newly raised in their reply in

  support of the Injunction Motion. 6 They argue (1) they did not raise a new argument


        6
          As we noted previously, see supra at 8 n.4, we conclude that the district
  court’s R&R-review-standard error does not require a remand with respect to this
  issue. To the extent the district court exercised its discretion, see United States v.
  Dominguez,
998 F.3d 1094, 1116
 (10th Cir. 2021) (holding a court has discretion
  whether to decline to consider new arguments raised in a reply), it is clear that the
  court did so based upon its independent judgment rather than simply deferring to the
  magistrate judge’s decision not to consider Colorado Plaintiffs’ argument regarding
                                                                                (continued)
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  in their reply, (2) the district court otherwise abused its discretion, (3) Vail failed to

  seek leave to file a sur-reply, and (4) the Constitution required the district court to

  review all arguments raised in their objections to the R&R.

         The district court concluded it would not address an issue Colorado Plaintiffs

  raised for the first time in their reply in support of the Injunction Motion, citing

  Beaudry v. Corrections Corp. of America,
331 F.3d 1164
, 1166 n.3 (10th Cir. 2003). 7

  Colorado Plaintiffs contend they did not raise a new argument in their reply because

  they were instead responding to a contention in Vail’s opposition to the motion. See
id.
 (“[W]e make an exception when the new issue argued in the reply brief is offered

  in response to an argument raised in the appellee’s brief.”); Sadeghi v. INS,
40 F.3d 1139, 1143
 (10th Cir. 1994) (“[W]here appellee raises argument not addressed by

  appellant in opening brief, appellant may respond in reply brief.”).

         We are not persuaded. Colorado Plaintiffs assert that they argued the

  authorized-by-Congress exception in their reply “in response to Vail’s argument that

  the district court was precluded from issuing an injunction by the [Anti-Injunction

  Act].” Aplt. Opening Br. at 47. But Colorado Plaintiffs addressed the applicability

  of exceptions to the Anti-Injunction Act in the Injunction Motion. In response, Vail

  cited the three exceptions, noted Colorado Plaintiffs’ failure to contend that the


  the authorized-by-Congress exception to the Anti-Injunction Act. Thus, the district
  court’s review-standard error was not prejudicial to Colorado Plaintiffs on this issue.
         7
          Colorado Plaintiffs do not challenge the district court’s reliance on Beaudry.
  They argue only that the district court failed to apply an exception in Beaudry in this
  case. See Aplt. Opening Br. at 47.
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  authorized-by-Congress exception applied, and addressed the two exceptions

  Colorado Plaintiffs did argue in the motion. See Aplt. App., Vol. 4 at 862-63. In

  their reply, Colorado Plaintiffs argued for the first time that the removal statute,
28 U.S.C. § 1446
(d), authorized an injunction against Vail under the

  authorized-by-Congress exception. But Vail had not raised any contention regarding

  the authorized-by-Congress exception that opened the door to this new argument.

  We see no abuse of discretion by the district court.

         Colorado Plaintiffs contend the district court nonetheless abused its discretion

  in declining to address the authorized-by-Congress exception because it was mistaken

  about their “trend of waiting to raise new arguments in reply briefs.” Aplt. App.,

  Vol. 5 at 1189 n.1. They maintain the examples the court cited do not evidence such

  conduct. But contrary to their assertion, they did raise a new argument in their reply

  in support of their Injunction Motion. Moreover, the court’s commentary about

  Colorado Plaintiffs’ “trend” of raising new arguments in reply was directed to

  potential “additional measures” in the event it continued.
Id.
 Again, we see no abuse

  of discretion.

         Colorado Plaintiffs also appear to argue the district court abused its discretion

  by declining to address the new argument in their reply because Vail did not seek

  leave to file a sur-reply. They cite cases grounded in a previous version of Federal

  Rule of Civil Procedure 56(c) holding that district courts did not abuse their

  discretion by considering new material in a reply in support of a summary judgment

  motion when the nonmoving party did not seek leave to file a sur-reply. See Pippin

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  v. Burlington Res. Oil & Gas Co.,
440 F.3d 1186, 1191-92
 (10th Cir. 2006) (citing

  Beaird v. Seagate Tech., Inc.,
145 F.3d 1159, 1164-65
 (10th Cir. 1998) (discussing

  the requirements of former Rule 56(c))). These cases do not demonstrate that

  because Vail did not ask to file a sur-reply, the district court abused its discretion by

  declining to consider Colorado Plaintiffs’ new argument in its reply in support of a

  motion for injunctive relief.

        Finally, Colorado Plaintiffs contend the Constitution required the district court

  to address every contention in their objections to the R&R, including the merits of

  their argument that the removal statute authorized the injunction they sought, an issue

  the R&R did not address. The cases they cite do not support this proposition. “The

  Constitution requires that Article III judges exercise final decisionmaking authority.”

  Ocelet Oil Corp.,
847 F.2d at 1463
. Consistent with that requirement, “Congress has

  provided that the magistrate’s proposed findings and recommendations shall be

  subjected to a de novo determination by the judge who then exercises the ultimate

  authority to issue an appropriate order. Moreover, the authority—and the

  responsibility—to make an informed, final determination remains with the judge.”

  United States v. Raddatz,
447 U.S. 667, 681-82
 (1980) (citation, brackets, ellipses,

  and internal quotation marks omitted). But “in providing for a de novo determination

  . . . Congress intended to permit whatever reliance a district judge, in the exercise of

  sound judicial discretion, chose to place on a magistrate’s proposed findings and

  recommendations.”
Id. at 676
 (internal quotation marks omitted).



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         Here the magistrate judge did not address the authorized-by-Congress

  exception to the Anti-Injunction Act in the R&R, concluding Colorado Plaintiffs had

  not argued that exception applied. They objected that, contrary to the R&R, they had

  argued that exception, pointing to their reply in support of the Injunction Motion.

  See Aplt. App., Vol. 5 at 1116 (citing R&R and reply). Section 636(b)(1) required

  the district court to “make a de novo determination of those portions of the report or

  specified proposed findings or recommendations to which objection is made” and

  permitted the court to “accept, reject, or modify, in whole or in part,” the R&R. The

  district court considered and rejected Colorado Plaintiffs’ objection. As we have

  noted, the court exercised its independent judgment in doing so. Nothing in the

  statute or Article III required it to do more.

                       b.     Necessary-in-Aid-of-Jurisdiction Exception

         The R&R concluded that the necessary-in-aid-of-jurisdiction exception to the

  Anti-Injunction Act is narrowly construed and applies only when in rem or quasi

  in rem actions are pending in both state and federal courts. And where that is the

  case, the first court to acquire jurisdiction or assume control over the property is

  entitled to maintain and exercise its jurisdiction to the exclusion of the other court.

  Concluding Colorado Plaintiffs’ case was in personam rather than in rem or quasi

  in rem, the R&R recommended rejecting their contention that this exception applied

  to the Injunction Motion. Colorado Plaintiffs objected, asserting this action is in rem

  or quasi in rem because back wages are property. See Aplt. App., Vol. 5 at 1119.



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  Reviewing that objection, the district court held they failed to cite, nor could it find,

  any case holding a claim for back wages is considered in rem or quasi in rem.

         On appeal, Colorado Plaintiffs first contend the

  necessary-in-aid-of-jurisdiction exception is not limited to in rem or quasi in rem

  proceedings. But they did not raise this issue in their objections to the R&R. See
id.

  They therefore waived appellate review of this argument. See Casanova v. Ulibarri,
595 F.3d 1120, 1123
 (10th Cir. 2010) (“This circuit has adopted a firm waiver rule

  when a party fails to object to the findings and recommendations of the magistrate

  judge.” (brackets and internal quotation marks omitted)); Soliz v. Chater,
82 F.3d 373, 375-76
 (10th Cir. 1996) (holding specific appellate arguments not raised in

  objections to magistrate judge’s recommendation are waived). 8

        Colorado Plaintiffs also argue, as they did in their objections, that this case is

  in rem or quasi in rem because unpaid wages are property. In an action in rem a

  court has already “reduced the res to its actual possession” or “it may later become

  necessary in order to effectuate the decree of the court[] to seize it.” Boynton v.

  Moffat Tunnel Improvement Dist.,
57 F.2d 772, 778
 (10th Cir. 1932) (noting the latter

  cases are referred to as quasi in rem). “[T]he rule is limited . . . to actions which deal



        8
           We conclude that the interests of justice do not support an exception to our
  firm waiver rule in this case. See Casanova,
595 F.3d at 1123
 (discussing the
  relevant factors); Vega v. Suthers,
195 F.3d 573, 580
 (10th Cir. 1999) (stating the
  interests-of-justice exception applies to a counseled party “only in the rare
  circumstance in which a represented party did not receive a copy of the magistrate
  [judge’s] R & R”).

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  either actually or potentially with specific property or objects.”
Id.
 As the district

  court concluded, the cases Colorado Plaintiffs cite do not hold that a claim for back

  wages is considered in rem or quasi in rem. Consequently, they have not shown the

  court erred in concluding the necessary-in-aid-of-jurisdiction exception to the

  Anti-Injunction Act does not apply to the Injunction Motion.

         C.     First-to-File Rule

         Colorado Plaintiffs also argue the district court erred by not enforcing the

  first-to-file rule, which “permits, but does not require, a federal district court to

  abstain from exercising its jurisdiction in deference to a first-filed case in a different

  federal district court,” Wakaya Perfection, LLC v. Youngevity Int’l, Inc.,
910 F.3d 1118, 1124
 (10th Cir. 2018) (internal quotation marks omitted). Relevant factors

  include, but are not limited to: “(1) the chronology of events, (2) the similarity of the

  parties involved, and (3) the similarity of the issues or claims at stake.”
Id.
 (internal

  quotation marks omitted). The district court rejected Colorado Plaintiffs’ objection

  that the magistrate judge had not applied the correct standard. But more importantly,

  the court noted that the first-to-file rule “is specific to federal district courts.” Aplt.

  App., Vol. 5 at 1193; see also id. at 1088 (R&R stating “[t]he rule does not pertain to

  a case filed and proceeding in a state court”). The district court is correct. We made

  clear in Wakaya that the first-to-file rule applies “[w]hen two federal suits are

  pending.”
910 F.3d at 1124
;
id.
 (noting we had “not yet established a comprehensive

  test governing abstention when both cases are in federal court”). Moreover, the

  first-to-file rule is a test for determining whether a federal court should abstain from

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  exercising jurisdiction,
id.,
 not a basis for enjoining another court from doing so.

  The district court did not err in rejecting the first-to-file rule as not relevant to the

  relief sought in the Injunction Motion.

         D.     Colorado River Abstention

         Colorado Plaintiffs assert that the district court improperly abstained from

  exercising jurisdiction in favor of the California state court contrary to the Colorado

  River abstention doctrine. See Colo. River Water Conservation Dist. v. United

  States,
424 U.S. 800
 (1976). Addressing their objection, the district court concluded

  they misunderstood and misinterpreted the R&R, noting the magistrate judge “did not

  recommend abstention under Colorado River; he instead cited to Colorado River as a

  contradictory proposition to his explanation that the first-to-file [rule] does not

  pertain to a case filed and proceeding [in] state court.” Aplt. App., Vol. 5 at 1192.

  Colorado Plaintiffs contend the district court still “effectively abstained” and

  therefore erred by not applying the Colorado River test. Aplt. Opening Br. at 62.

  We reject this assertion: in denying the Injunction Motion, the district court did not

  abstain—actually or effectively, properly or improperly—under Colorado River. 9




         9
           Colorado Plaintiffs contend that “a stay is as much a refusal to exercise
  federal jurisdiction as a dismissal.” Aplt. Opening Br. at 61-62 (internal quotation
  marks omitted). Any stay entered by the district court in this case is not before us in
  this interlocutory appeal of the court’s denial of the Injunction Motion.

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  III.   Conclusion

         We affirm the district court’s order denying the Injunction Motion.




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