Myers v. Wells Fargo Bank, N.A. , 685 F. App'x 679 ( 2017 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT April 20, 2017
_________________________________
Elisabeth A. Shumaker
Clerk of Court
DONNY W. MYERS; BRENDA J.
MYERS,
Plaintiffs - Appellants,
No. 16-6316
v. (D.C. No. 5:16-CV-00663-D)
(W.D. Okla.)
WELLS FARGO BANK, N.A., Trustee for
Certificate Holders of Bear Stearns Asset-
Backed Securities Trust 2005-1, Asset-
Backed Certificates, Series 2005-1,
Defendant - Appellee.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before PHILLIPS, McKAY, and McHUGH, Circuit Judges.
_________________________________
Plaintiffs Donny and Brenda Myers, proceeding pro se, appeal the district court’s
dismissal of their complaint, which sought to void a state-foreclosure judgment and
alleged several claims under Oklahoma tort law. Exercising jurisdiction under 28 U.S.C.
§ 1291, we affirm.
*
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 This order and judgment is not binding precedent,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.
In 2006, Defendant Wells Fargo filed a petition for foreclosure in Oklahoma state
court after Plaintiffs failed to make mortgage payments. The state court entered
judgment in favor of Wells Fargo in 2007. Subsequently, Plaintiffs filed numerous
motions in state court to vacate the judgment, all of which were denied, arguing that
Wells Fargo lacked standing to pursue the foreclosure and that Wells Fargo had
committed fraud on the court. (See Appellee’s Suppl. App. at 1–73.)
In 2016, after losing in state court, Plaintiffs filed a complaint against Wells Fargo
in federal district court. The complaint, which invokes Rule 60 of the Federal Rules of
Civil Procedure—the rule on requests for relief from a judgment or order—asserts nine
“causes of action” including “Lack of Standing/Wrongful Foreclosure,” “Fraud upon the
Court/Fraud in the Concealment,” and “Void Assignment of Note Mortgage & Deed of
Trust.” (R. at 5.) Plaintiffs also allege their due process rights were violated during the
course of the foreclosure proceedings and that Wells Fargo is liable under state tort law
for intentional infliction of emotional distress and slander of title.
Wells Fargo moved to dismiss the complaint based on (1) the Rooker–Feldman
doctrine; (2) claim and issue preclusion; and (3) failure to state a claim. The district court
granted the motion and dismissed the case, holding that Plaintiffs’ claims were barred by
the Rooker–Feldman doctrine. It also stated that, even if Rooker–Feldman did not apply,
the claims “would still be barred under the doctrines of res judicata and/or collateral
estoppel.” (R. at 1000.) Plaintiffs filed this timely appeal.
“Although we construe pro se filings liberally, [Plaintiffs’] pro se status does not
excuse [them] from complying with the fundamental requirements of the Federal Rules of
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Civil and Appellate Procedure.” Russell v. Sherman & Howard, LLC, 222 F. App’x 698,
699 (10th Cir. 2007) (internal quotation marks and brackets omitted). “A party, including
a pro se litigant, waives an inadequately briefed issue, and ‘mere conclusory allegations
with no citations to the record or any legal authority for support’ are inadequate to
preserve an issue for review.” Krumm v. Holder, 594 F. App’x 497, 501 (10th Cir. 2014)
(quoting Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 841 (10th Cir. 2005)).
Plaintiffs’ “pro se appellate brief is inadequate as [they do] not support [their] arguments
with citations to the record or any legal authorities and therefore fail[] to comply with
Federal Rule of Appellate Procedure 28(a)(8)(A).” Moffett v. Colvin, 580 F. App’x 688,
689 (10th Cir. 2014).
Nor can Plaintiffs avoid the consequences of their inadequate briefing by
incorporating their district court filings by reference. (See Appellants’ Opening Br. at 4
(“I could go into all of the claims listed in the Complaint but it would be easier to just
read the Complaint rather than me double write it.”).) Our rules do not allow parties to
incorporate by reference the arguments they made in the district court. See 10th Cir.
R. 28.4 (“Incorporating by reference portions of lower court . . . briefs or pleadings is
disapproved and does not satisfy the requirements of Fed. R. App. P. 28(a) and (b).”)
Plaintiffs’ “pro se status does not except [them] from such established rules.” Wardell v.
Duncan, 470 F.3d 954, 964 (10th Cir. 2006) (holding that a pro se appellant could not
incorporate pleadings into his appellate brief).
What’s more, Plaintiffs’ arguments fail on the merits. “The Rooker–Feldman
doctrine establishes, as a matter of subject-matter jurisdiction, that only the United States
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Supreme Court has appellate authority to review a state-court decision.” Merrill Lynch
Bus. Fin. Servs., Inc. v. Nudell, 363 F.3d 1072, 1074–75 (10th Cir. 2004) (footnote
omitted). It “precludes federal district courts from effectively exercising appellate
jurisdiction over claims actually decided by a state court and claims inextricably
intertwined with a prior state-court judgment.” Mo’s Express, LLC v. Sopkin, 441 F.3d
1229, 1233 (10th Cir. 2006) (internal quotation marks omitted).
Without citing any legal authority, Plaintiffs assert that the district court was
wrong to dismiss the complaint under Rooker–Feldman for two reasons: (1) “Rooker–
Feldman does not apply where there [are] allegations [that] Extrinsic Fraud ha[s] been
committed upon the state court”; and (2) “the [Rooker–Feldman] doctrine does not apply
if the Plaintiff had no reasonable opportunity to raise his federal claim in state
proceedings.” (Appellants’ Reply Br. at 4; see also Appellants’ Opening Br. at 4.) But
both arguments are foreclosed by circuit precedent: Even if Plaintiffs could prove fraud,
we do not recognize an “extrinsic fraud” exception to Rooker–Feldman. See Tal v.
Hogan, 453 F.3d 1244, 1256 (10th Cir. 2006) (noting that “new allegations of fraud
might create grounds for appeal, but that appeal should be brought in the state courts”);
see also, e.g., Bradshaw v. Gatterman, 658 F. App’x 359, 362 (10th Cir. 2016) (rejecting
the “argument that extrinsic fraud can override Rooker–Feldman”). Second, even if
Plaintiffs could prove “no reasonable opportunity” to raise their federal claims in the state
court proceedings, it is not the case that the state court “had to actually hear every issue”
as Plaintiffs argue (Appellants’ Reply Br. at 5). The doctrine applies “regardless of
whether the state-court proceeding afforded the federal-court plaintiff a full and fair
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opportunity to litigate her claims.” Kenmen Eng’g v. City of Union, 314 F.3d 468, 478
(10th Cir. 2002), abrogated in part on other grounds by Exxon Mobil Corp. v. Saudi
Basic Indus. Corp., 544 U.S. 280, 291–92 (2005); see also Smith v. Colo. Supreme Court
(In re Smith), 287 F. App’x 683, 685 (10th Cir. 2008).
For the foregoing reasons, the district court’s judgment is AFFIRMED. We
GRANT appellants’ motion to proceed in forma pauperis.
ENTERED FOR THE COURT
Monroe G. McKay
Circuit Judge
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