Delacruz Bancroft V Field Nation
Appellate Case: 24-2169 Document: 51-1 Date Filed: 07/24/2025 Page: 1
FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
July 24, 2025
FOR THE TENTH CIRCUIT
_________________________________ Christopher M. Wolpert
Clerk of Court
HOWARD DELACRUZ-BANCROFT,
Plaintiff - Appellant,
v. No. 24-2169
(D.C. No. 1:23-CV-00023-JB-KK)
FIELD NATION, LLC; SPARTAN (D. N.M.)
COMPUTER SERVICES/NATIONAL
SERVICE CENTER, a/k/a SCS/NSC;
JACK IN THE BOX, INC.;
NEWBOLD CORPORATION, on
behalf of its Division National Service
Center,
Defendants - Appellees.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before MATHESON, CARSON, and FEDERICO, Circuit Judges.
_________________________________
*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.
This order and judgment is not binding precedent, except under the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.
Appellate Case: 24-2169 Document: 51-1 Date Filed: 07/24/2025 Page: 2
Howard DeLaCruz-Bancroft, proceeding pro se,1 appeals the district
court’s dismissal of his civil claims against Field Nation, LLC
(“Field Nation”); Jack in the Box, Inc. (JITB); and Spartan Computer
Services (SCS)/National Service Center (NSC) and NewBold Corporation
(collectively, “NewBold”).2 Exercising jurisdiction under 28 U.S.C. § 1291,
we affirm.
I
Mr. DeLaCruz-Bancroft sued Field Nation, NewBold, and JITB in
state court in New Mexico, alleging breach of contract, breach of the implied
covenant of good faith and fair dealing, negligent and/or intentional
misrepresentation, and violations of New Mexico’s Unfair Trade Practices
Act. He used Field Nation’s online work platform to obtain Information
Technology jobs from business listings on the platform, but he alleged
Field Nation permanently banned him from the platform because NewBold
1 Because Mr. DeLaCruz-Bancroft proceeds pro se, we construe his
arguments liberally, but we “cannot take on the responsibility of serving as
[his] attorney in constructing arguments and searching the record.”
Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840
(10th Cir. 2005).
2 After issuing a show-cause order to clarify “then-existing
ambiguities in the record regarding” the relationship between NSC, SCS,
and NewBold, the district court expressly recognized the parties’ agreement
that, for purposes of the litigation, the three “are a single, merged entity.”
R. at 378–79 n.2.
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Appellate Case: 24-2169 Document: 51-1 Date Filed: 07/24/2025 Page: 3
and JITB informed Field Nation he had worked off the platform in violation
of his user agreement with Field Nation. He further alleged Field Nation
banned him from the platform unfairly and that it “did not consider or
respond to [his] explanation that [NewBold] was the one who initiated work
off the platform.” R. at 17.
Field Nation removed the case to federal court. Field Nation then
answered the complaint, asserting among its affirmative defenses that
“Plaintiff’s claims in this litigation [were] subject [to] a valid and
enforceable arbitration agreement.” R. at 65.
Shortly thereafter, Field Nation filed a motion to compel arbitration
and to dismiss the claims against it. A federal magistrate judge issued
proposed findings and a recommended disposition (PFRD) recommending
the court grant the motion and dismiss the claims against Field Nation.
Mr. DeLaCruz-Bancroft timely objected to the PFRD, but the district court
overruled the objections, granted the motion, and dismissed Field Nation.
JITB and NewBold had filed motions to dismiss in state court before
removal. After briefing was complete before the federal court, the
magistrate judge entered a second PFRD recommending that the court
grant the motions to dismiss for four reasons:
(1) Mr. DeLaCruz-Bancroft did not plead a contract existed between
him and JITB/NewBold;
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Appellate Case: 24-2169 Document: 51-1 Date Filed: 07/24/2025 Page: 4
(2) Because there was no contract, there could be no breach of the
implied covenant of good faith and fair dealing;
(3) New Mexico’s three-year statute of limitations barred
Mr. DeLaCruz-Bancroft’s tort claims, see N.M. Stat. Ann. § 37-1-8; and
(4) Mr. DeLaCruz-Bancroft could not bring a claim under the
New Mexico Unfair Trade Practices Act because he did not plead that he
was a buyer of goods or services and therefore lacked standing under the
Act. See Santa Fe Custom Shutters & Doors, Inc. v. Home Depot U.S.A., Inc.,
113 P.3d 347, 353 (N.M. Ct. App. 2005) (“[T]he [New Mexico Unfair
Practices Act] gives standing only to buyers of goods or services.”).
Mr. DeLaCruz-Bancroft did not file an objection to the second PFRD.
The district court reviewed it to determine if it was clearly erroneous,
arbitrary, obviously contrary to law, or an abuse of discretion. Finding none
of these things, the district court adopted the second PFRD, dismissing the
breach of contract and tort claims against JITB and NewBold with prejudice
and dismissing the claim under the New Mexico Unfair Practices Act
against JITB and NewBold without prejudice. This appeal followed.
II
We do not address Mr. DeLaCruz-Bancroft’s appellate arguments
challenging the second PFRD because he did not timely object to it before
the district court. This court follows the firm waiver rule, under which “the
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failure to make timely objection to the magistrate’s findings or
recommendations waives appellate review of both factual and legal
questions.” Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991). The
firm waiver 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.”
Morales-Fernandez v. INS, 418 F.3d 1116, 1119 (10th Cir. 2005) (internal
quotation marks and italics omitted).3 And in applying the
interests-of-justice exception, “we can think of no rational basis for
excepting a pro se litigant’s failure to object to a magistrate’s report from
our longstanding practice of reviewing for plain error issues raised for the
first time on appeal by counseled litigants.” Id. at 1120 (italics omitted).
The second PFRD clearly informed Mr. DeLaCruz-Bancroft of the
time period for objecting (fourteen days) and stated in prominent, bold text:
“A party must file any objections with the Clerk of the District Court within
the fourteen-day period if that party wants to have appellate review of the
proposed findings and recommended disposition. If no objections are filed,
3 This court entered an order directing Mr. DeLaCruz-Bancroft “to
show cause in writing why he has not waived his right to appellate review
of the district court’s dismissal of his claims against JITB [and NewBold]
by failing to [respond to] the PFRD underlying that dismissal.” Order to
Show Cause at 4. Mr. DeLaCruz-Bancroft responded, and we have
considered his response.
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no appellate review will be allowed.” R. at 359. So, the first exception to the
firm waiver rule does not apply.
As for the second, “interests of justice” exception,
Mr. DeLaCruz-Bancroft “contends his responses to the first PFRD
addressed overlapping substantive issues in the second PFRD thereby
rendering any procedural oversight immaterial,” Aplt. Resp. to Order to
Show Cause at 2, but the first PFRD recommended dismissal of
First Nation, whereas the second PFRD concerned the dismissal of
NewBold and JITB for very different reasons. So, even if we were to
construe his objections to the first PFRD as objections to the second, they
would be immaterial.
Mr. DeLaCruz-Bancroft also asserts that he filed a motion for
extension of time to respond to the second PFRD, but that the district court
entered its order adopting the second PFRD without ruling on his motion.
The record belies this assertion. Mr. DeLaCruz-Bancroft filed a motion for
extension of time to file a response to the district court’s order adopting the
second PFRD, but he did not timely request an extension to file objections
to the magistrate judge’s second PFRD.
The remainder of Mr. DeLaCruz-Bancroft’s arguments for why we
should apply the interests of justice exception, liberally construed, merely
restate his arguments on appeal as to why the district court erred in
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adopting the second PFRD. But he does not argue these errors satisfy the
plain-error standard, nor is it readily apparent how they would. “And the
failure to do so—the failure to argue for plain error and its application on
appeal—surely marks the end of the road for an argument for reversal not
first presented to the district court.” Richison v. Ernest Grp., Inc., 634 F.3d
1123, 1131 (10th Cir. 2011); see also Butler v. Daimler Trucks N. Am., LLC,
74 F.4th 1131, 1143 (10th Cir. 2023) (concluding “a belated and perfunctory
effort is insufficient” to grant relief for forfeited argument). So, the second
exception to the firm waiver rule does not apply either.
The firm waiver rule bars review of the district court’s order adopting
the second PFRD and dismissing his claims against JITB and NewBold.
III
Mr. DeLaCruz-Bancroft did timely object to the first PFRD. “We
review de novo the district court’s order compelling arbitration.” See Dodson
Int’l Parts, Inc. v. Williams Int’l Co., 12 F.4th 1212, 1219 (10th Cir. 2021).
We agree with the district court there existed a valid and enforceable
agreement to arbitrate. The “Terms and Conditions” portion of
Mr. DeLaCruz-Bancroft’s agreement with Field Nation provided, in
bold-faced capital letters on its first page, that it “contains mandatory
individual arbitration agreement and class action/jury trial waiver
provisions that require the use of arbitration on an individual basis to
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resolve covered disputes, rather than jury trials or class actions.” R. at 141.
The agreement also provided Mr. DeLaCruz-Bancroft and Field Nation
“mutually agree to resolve any and all covered justiciable disputes between
them exclusively through final and binding arbitration instead of a court or
jury trial,” id. at 151, and that it survived the termination of their
relationship, see id. at 153.
Mr. DeLaCruz-Bancroft argues Field Nation waived its right to
enforce the arbitration agreement by its litigation conduct. But Field Nation
raised the agreement as a defense in its answer—the very first pleading it
filed after removal to federal court—and it moved to compel arbitration
before the parties had completed any other steps in the litigation process,
such as the entry of a scheduling order, the selection of a trial date, or
discovery of any kind. It did not “defend[] itself against
[Mr. DeLaCruz-Bancroft’s] suit as if no arbitration agreement existed,”
Morgan v. Sundance, Inc., 596 U.S. 411, 414 (2022). Instead, Field Nation
promptly asserted the existence of the arbitration agreement as a basis to
dismiss. It did not file a counterclaim, and Mr. DeLaCruz-Bancroft points
to no compelling authority indicating that removal to federal court, alone,
amounts to a waiver of Field Nation’s right to arbitrate. So, the district
court did not err when rejecting Mr. DeLaCruz-Bancroft’s waiver argument.
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Mr. DeLaCruz-Bancroft also asserts the district court erred in
dismissing his complaint without giving him the opportunity to amend it,
but he did not ever seek amendment before the district court, and he does
not describe to this court how he would have amended his complaint to avoid
enforcement of the arbitration agreement. So, we will also not disturb the
district court’s ruling on that basis.
AFFIRMED.
Entered for the Court
Richard E.N. Federico
Circuit Judge
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