Snider v. B.A.C. Home Loans Servicing, LP , 639 F. App'x 572 ( 2016 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT April 27, 2016
_________________________________
Elisabeth A. Shumaker
Clerk of Court
JEANETTE SNIDER; MATTHEW
SNIDER,
Plaintiffs - Appellants,
v. No. 15-1466
(D.C. No. 1:11-CV-00224-CMA-MJW)
B.A.C. HOME LOANS SERVICING, LP; (D. Colo.)
CASTLE, MEINHOLD & STAWIARSKI,
LLC,
Defendants - Appellees.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before LUCERO, MATHESON, and BACHARACH, Circuit Judges.
_________________________________
Homeowners Jeanette and Matthew Snider, proceeding pro se,1 brought
various federal and state claims against B.A.C. Home Loans Servicing LP (“B.A.C.”)
*
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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
1
Although we liberally construe pro se filings, see Erickson v. Pardus, 551
U.S. 89, 94 (2007) (per curiam), we may not “assume the role of advocate,” Yang v.
Archuleta, 525 F.3d 925, 927 n.1 (10th Cir. 2008) (quotations omitted); see also
United States v. Pinson, 584 F.3d 972, 975 (10th Cir. 2009), and we do not
Cont’d . . .
and law firm Castle, Meinhold & Stawiarski, LLC (“Castle”) in Colorado state court
in connection with the foreclosure on the Sniders’ home. Defendants removed the
case to federal court and moved for dismissal under Federal Rule of Civil Procedure
12(b)(6). The Sniders subsequently moved for partial summary judgment. The
district court granted Defendants’ motions to dismiss and entered final judgment.
Post-judgment, it dismissed the Sniders’ motion for partial summary judgment as
moot.
The Sniders appeal from (1) the dismissal of their claims and entry of final
judgment and (2) the post-judgment dismissal of their motion for partial summary
judgment. We dismiss the former for lack of jurisdiction. Exercising jurisdiction
over the latter under 28 U.S.C. § 1291, we affirm.
I. BACKGROUND
The Sniders brought this action in Colorado state court on January 11, 2011.
Defendants removed to the District of Colorado 16 days later. They filed separate
motions to dismiss on February 8 and June 20, 2011. On September 9, 2011, while
Defendants’ motions to dismiss were pending, the Sniders filed a motion for partial
summary judgment.
_____________________________
“fashion . . . arguments for [pro se litigants],” United States v. Fisher, 38 F.3d 1144,
1147 (10th Cir. 1994).
-2-
On September 26, 2011, the district court granted Defendants’ motions to
dismiss. It entered final judgment the next day without ruling on the Sniders’
pending motion for partial summary judgment.
The Sniders filed a notice of appeal as to the dismissal order and final
judgment on October 24, 2011. On October 27, 2011, we found the Sniders’ notice
of appeal deficient, noting the Sniders had failed to pay the filing fee or move for
leave to proceed in forma pauperis (“ifp”). We directed the Sniders to correct this
deficiency within 30 days. On February 8, 2012, we dismissed the Sniders’ appeal for
failure to correct the deficiency.
More than three and a half years later, on August 28, 2015, the Sniders moved
the district court to rule on their September 9, 2011 motion for partial summary
judgment. In an order dated November 3, 2015, the court noted it had inadvertently
failed to address the Sniders’ motion for partial summary judgment in its September
26, 2011 dismissal order. It dismissed the Sniders’ motion for partial summary
judgment as moot because none of the Sniders’ claims had survived the dismissal
order.
On December 3, 2015, the Sniders filed a notice of appeal challenging (1) the
court’s September 26, 2011 dismissal order and its September 27, 2011 final
judgment, and (2) its November 3, 2015 dismissal of the Sniders’ motion for partial
summary judgment.
-3-
II. DISCUSSION
We dismiss the Sniders’ appeal from the September 26, 2011 dismissal order
and the September 27, 2011 final judgment for lack of jurisdiction. “This court has
jurisdiction only to review district court judgments from which a timely notice of
appeal has been filed.” Lebahn v. Owens, 813 F.3d 1300, 1304 (10th Cir. 2016)
(citing Bowles v. Russell, 551 U.S. 205, 214 (2007)). The Sniders’ notice of appeal,
filed on December 3, 2015, was filed over four years too late. See Fed. R. App. P.
4(a)(1) (generally requiring an appellant to file a notice of appeal from a civil action
“within 30 days after entry of the judgment or order appealed from”).2
We do, however, have jurisdiction over the Sniders’ timely appeal from the
November 3, 2015 dismissal of the Sniders’ motion for partial summary judgment.
See Allen v. Minnstar, Inc., 8 F.3d 1470, 1473-74 (10th Cir. 1993) (holding we have
jurisdiction under 28 U.S.C. § 1291 to review post-judgment orders that are final and
otherwise unreviewable). As the district court correctly noted, none of the Sniders’
claims survived the September 26, 2011 dismissal order. The dismissal order and
2
The district court’s grant of the Sniders’ post-judgment motion to rule on
their motion for partial summary judgment did not render the appeal timely.
“Generally, a ruling on a post-judgment motion is subject to independent appeal
separate from the underlying judgment . . . .” In re Lang, 414 F.3d 1191, 1196 (10th
Cir. 2005) (citing 15B Charles Alan Wright & Arthur R. Miller, Federal Practice and
Procedure § 3916 (2d ed. 1992); Bishop v. Corsentino, 371 F.3d 1203, 1206 (10th
Cir. 2004)). The appeal of a post-judgment motion “‘should be restricted to the
questions properly raised by the post-judgment motion [and] should not extend to
revive lost opportunities to appeal the underlying judgment.’” Id. (quoting Wright &
Miller, supra, § 3916).
-4-
entry of final judgment therefore rendered their motion for partial summary judgment
moot.
III. CONCLUSION
For the foregoing reasons, we dismiss the appeal from the September 26, 2011
dismissal order and the September 27, 2011 final judgment for lack of jurisdiction.
We affirm the November 3, 2015 dismissal of the Sniders’ motion for partial
summary judgment as moot and deny their motion for ifp status.3
ENTERED FOR THE COURT,
Scott M. Matheson, Jr.
Circuit Judge
3
Appellee Castle, Meinhold & Stawiarski, LLC's Motion to Dismiss is denied
as untimely.
-5-