Glenn v. Moss ( 2019 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT January 10, 2019
_________________________________
Elisabeth A. Shumaker
Clerk of Court
ENDRÉ GLENN,
Plaintiff - Appellant,
v. No. 18-4033
(D.C. No. 2:15-CV-00165-DN)
BRENNAN H. MOSS; PIA ANDERSON (D. Utah)
DORIUS REYNARD & MOSS, LLC,
Defendants - Appellees.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before TYMKOVICH, Chief Judge, McKAY and MATHESON, Circuit Judges.
_________________________________
Endré Glenn, proceeding pro se, appeals from the district court’s grant of
summary judgment in favor of defendants Brennan H. Moss and the law firm of Pia
Anderson Dorius Reynard & Moss on his legal malpractice claim.1 Mr. Glenn also
*
After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
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 This order and judgment is not binding precedent,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
Because Mr. Glenn appears pro se, we construe his filings liberally, but “this
court has repeatedly insisted that pro se parties follow the same rules of procedure
appeals the denial of his post-judgment motions. Exercising jurisdiction under
28 U.S.C. § 1291, we affirm.
I. BACKGROUND
In 2007, Mr. Glenn entered into a real estate purchase contract (REPC) with
the Reeses (the Buyers) to sell a residential property to them. The purchase fell
through after the Buyers obtained an unfavorable appraisal of the property and
cancelled the contract. The Buyers cited a provision in the REPC allowing for
cancellation based upon evaluations and inspections deemed necessary by the
Buyers. Since then, Mr. Glenn has filed three lawsuits concerning the cancelled
purchase.
First, Mr. Glenn sued the Buyers in Utah state court for breach of contract,
breach of good faith and fair dealing, and specific performance (the Buyer Action).
Mr. Glenn lost at trial and on appeal. The Utah Supreme Court held that the terms of
the real estate contract were unambiguous and the Buyers were able to cancel the
contract based upon the evaluations and inspections provision in the REPC. Glenn v.
Reese, 225 P.3d 185, 192 (Utah 2009).
that govern other litigants.” Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836,
840 (10th Cir. 2005) (brackets and internal quotation marks omitted). “[T]he court
cannot take on the responsibility of serving as the litigant’s attorney in constructing
arguments and searching the record.” Id. (internal quotation marks omitted).
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Second, Mr. Glenn sued Coldwell Banker and his real estate broker, Donna
Kane, in Utah federal district court (the Agent Action) for breach of contract, breach
of good faith and fair dealing, and breach of fiduciary duty, claiming the provision
used by the Buyers to cancel the REPC was non-standard and that Ms. Kane had a
duty to point it out to him and advise of its potential implications. The defendants
moved for summary judgment, and the district court granted the motion. The court
found there was no admissible evidence of damages because they were too
speculative; the broker did not have a duty to notify Mr. Glenn of the provision at
issue; Mr. Glenn was “charged with having read the contract,” R. at 630; and he
could have countered the provision before accepting the offer. Mr. Glenn appealed,
and we affirmed. Glenn v. Kane, 494 F. App’x 916, 919 (10th Cir. 2012).
Third, Mr. Glenn filed the underlying action in federal district court against
the attorney and his law firm who represented him in the Agent Action. He sued for
professional negligence (legal malpractice), breach of fiduciary duty, breach of
contract, and breach of good faith and fair dealing. Defendants filed a motion for
summary judgment, which the district court granted. Mr. Glenn filed several post-
judgment motions seeking a new trial or relief from judgment, which the district
court denied. Mr. Glenn now appeals the grant of summary judgment to defendants
and the denial of his post-judgment motions.
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II. DISCUSSION
A. Orders Denying Extension to File Expert Report
and Granting Summary Judgment
Legal Background
Mr. Glenn’s principal argument on appeal is that the district court erred in
declining to grant him an extension of time to submit an expert witness report, which,
he claims, would have created a genuine issue of material fact to defeat summary
judgment. We review a decision to deny an extension of time for discovery for abuse
of discretion. See Bolden v. City of Topeka, 441 F.3d 1129, 1149 (10th Cir. 2006);
Davoll v. Webb, 194 F.3d 1116, 1139 (10th Cir. 1999). “As a general rule, discovery
rulings are within the broad discretion of the trial court,” Cole v. Ruidoso Mun. Sch.,
43 F.3d 1373, 1386 (10th Cir. 1994), and “will not be disturbed unless the appellate
court has a definite and firm conviction that the lower court made a clear error of
judgment or exceeded the bounds of permissible choice in the circumstances,” id.(internal quotation marks omitted).
Mr. Glenn also challenges the summary judgment order. We review the
district court’s grant of summary judgment de novo, viewing the evidence and
drawing all reasonable inferences in favor of the nonmoving party. Birch v. Polaris
Indus., Inc., 812 F.3d 1238, 1251 (10th Cir. 2015). “The court shall grant summary
judgment if there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).
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Additional Background
Mr. Glenn filed his complaint in March 2015. The district court entered a
scheduling order setting a January 15, 2016, deadline for written discovery and a
February 15, 2016, deadline for fact discovery and submission of expert reports. On
February 10, 2016, Mr. Glenn moved for an extension of time to complete discovery,
noting that he was waiting on a response to his records request to the Utah Division
of Real Estate, which he needed to respond to defendants’ timely-served discovery
requests. The motion did not mention needing additional time to secure expert
witnesses.
Between February 18 and February 23, 2016, more than one month past the
deadline for written discovery, Mr. Glenn served written discovery requests on
defendants and third parties. The magistrate judge eventually granted in part
Mr. Glenn’s motion for extension of time and instructed the parties to complete
discovery by July 1, 2016. She “caution[ed] both parties to follow the rules of
procedure” and “urged [them] to timely comply with [the] Order and the Federal
Rules of Civil Procedure for the duration of this ligation.” R. at 528.
On July 27, 2016, the magistrate judge held a scheduling conference and
entered an amended scheduling order further extending the expert-witness-report
deadline to September 1, 2016, to accommodate Mr. Glenn. On August 16, 2016,
Mr. Glenn filed another motion to extend discovery, requesting additional time to
submit expert witness reports.
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On September 23, 2016, the magistrate judge denied this third request for
additional time to conduct discovery, which was filed three weeks after the amended
scheduling order was entered. The magistrate judge explained, “In actuality,
[Mr. Glenn] seeks to amend the scheduling order in this case, which requires a
finding of good cause” under Fed. R. Civ. P. 16, R. at 654.2 Mr. Glenn’s motion for
extension of time stated that he was “actively seeking an expert witness to . . . defend
against the Defendant’s anticipated motion for summary judgment.” But it did not
explain his inability to secure an expert witness within the already-extended
deadlines set by the court sufficient to establish good cause. Supp. R. at 9-10. The
magistrate judge concluded, because “[Mr. Glenn] has already had two bites at the
apple . . . there is not good cause to amend the recently entered Amended Scheduling
Order.” R. at 655.
Mr. Glenn objected to this ruling, citing the need for an expert to review
deposition transcripts that he had not yet obtained. The district court overruled
Mr. Glenn’s objection and affirmed the magistrate judge’s order, finding that
“deadline extensions have been liberally granted to Mr. Glenn in the past due to his
status as a pro se litigant” and that Mr. Glenn had failed to “argue or even point out
2
Under Fed. R. Civ. P. 16(b)(4), “[a] schedule may be modified only for good
cause and with the judge’s consent.”
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how the [magistrate judge’s] Order is clearly erroneous or contrary to law.” R. at
1441-42.
On September 30, 2016, even though the magistrate judge had denied
Mr. Glenn’s motion to amend the scheduling order on September 23, 2016,
Mr. Glenn filed an untimely expert witness report, along with another motion to
extend the expert witness report deadline. On February 1, 2017, the magistrate judge
denied the motion as duplicative of the previous motion.
Analysis
On appeal, Mr. Glenn challenges the order denying an extension to file an
expert witness report and the order granting summary judgment. He points to a
deposition transcript that he claims his expert needed to review before submitting his
report as the reason for needing an additional extension of time. But the transcript at
issue was available by the time of the scheduling conference on July 27, 2016. R. at
1381-82. Mr. Glenn provides no explanation as to why his proposed expert could not
have reviewed the transcript well before the September 1 deadline for his expert
report, even if the transcript was not yet in a format acceptable for filing. Moreover,
the expert report that was eventually produced did not even appear to rely on the
transcript.
Mr. Glenn also criticizes the district court’s rulings on several motions to
compel and to quash and complains about the defendants’ and third parties’
participation in discovery. But he fails to show good cause sufficient to justify
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another discovery extension. As noted above, the magistrate judge extended
discovery deadlines twice to accommodate Mr. Glenn, allowing him approximately
eighteen months from the filing of his complaint to secure expert witnesses.
Because Mr. Glenn “has offered no colorable reason why the discovery
deadline should have been extended,” Bolden, 441 F.3d at 1151, the district court did
not abuse its discretion in finding that Mr. Glenn failed to show good cause for a
third discovery extension. The expert witness report was properly excluded as
untimely and, therefore, it could not create a genuine issue of material fact. Because
there was no genuine issue of material fact and defendants were entitled to judgment
as a matter of law, the district court properly granted summary judgment to
defendants.3
B. Denial of Post-Judgment Motions
Mr. Glenn filed several duplicative post-judgment motions requesting relief
under Fed. R. Civ. P. 59(a) and 60(b)(2) based on newly discovered evidence and
3
Mr. Glenn also contends the district court’s entry of summary judgment
violated his Seventh Amendment right to a jury trial. But as we have explained,
summary judgment was appropriate here, and “[t]he Seventh Amendment is not
violated by proper entry of summary judgment, because such a ruling means that no
triable issue exists to be submitted to a jury.” Shannon v. Graves, 257 F.3d 1164,
1167 (10th Cir. 2001).
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under Fed. R. Civ. P. 60(b)(3) based on fraud. We affirm the district court’s denial
of the post-judgment motions.
1. Newly Discovered Evidence
Mr. Glenn styled his “newly discovered evidence” filings as motions for a new
trial or to reopen the case under Rule 59(a) and for relief from judgment under Rule
60(b)(2). “Technically, [a Rule 59(a)] motion was improper as no trial was
conducted from which a new trial motion could be filed.” Jones v. Nelson, 484 F.2d
1165, 1167 (10th Cir. 1973). Although the district court analyzed Mr. Glenn’s
purported Rule 59(a) motion under that rule, “[b]ecause . . . the motion seeks to alter
the substantive ruling of the district court, we construe the plaintiff’s motion as a
motion to alter or amend the judgment pursuant to Rule 59(e),” Phelps v. Hamilton,
122 F.3d 1309, 1324 (10th Cir. 1997). “A party can seek relief based on newly
discovered evidence under either [Rule] 59(e) or 60(b)(2).” FDIC v. Arciero,
741 F.3d 1111, 1117 (10th Cir. 2013). “We review the district court’s decision under
either rule for abuse of discretion.” Id.“[I]t is well-settled that the requirements for newly discovered evidence are
essentially the same under Rule 59(e) and 60(b)(2).” Id. Relief is available under
either rule only if (1) the evidence was newly discovered since entry of summary
judgment; (2) the moving party was diligent in discovering the new evidence; and
(3) the newly discovered evidence would probably produce a different result. See
Devon Energy Prod. Co. v. Mosaic Potash Carlsbad, Inc., 693 F.3d 1195, 1213
9
(10th Cir. 2012) (Rule 59(e)); Dronsejko v. Thornton, 632 F.3d 658, 670 (10th Cir.
2011) (Rule 60(b)).
Mr. Glenn proffered three affidavits—from the Buyer, the real estate broker,
and the appraiser in the original Buyer Action. He claims this was newly discovered
evidence showing fraudulent misrepresentation on the part of the Buyers. But these
affidavits were part of the state court record in the Buyer Action. Mr. Glenn could
have discovered and proffered them well before summary judgment was entered in
this case. Because Mr. Glenn cannot meet the newly discovered evidence standard
contemplated by Rules 59 and 60, the district court did not abuse its discretion in
denying the motions.
2. Fraud
Mr. Glenn’s post-judgment filings also alleged claims under Rule 60(b)(3),
which allows for relief from judgment due to “fraud . . ., misrepresentation, or
misconduct by an opposing party,” Fed. R. Civ. P. 60(b)(3). We review the district
court’s denial of a Rule 60(b) motion for abuse of discretion. Zurich N. Am. v.
Matrix Serv., Inc., 426 F.3d 1281, 1289 (10th Cir. 2005).
In Mr. Glenn’s request for relief in the district court, he argued the Buyers
behaved fraudulently and materially misrepresented themselves. The district court
denied the motions, finding Mr. Glenn failed to “show[] fraud, misrepresentation, or
misconduct by the defendants [in this case] to justify relief from judgment.” R. at
1880; see also id. at 1831 (same). On appeal, Mr. Glenn has abandoned this
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argument and instead contends he is entitled to Rule 60(b)(3) relief based on 47
exhibits to his original complaint that “[a]pparently . . . vanished which only
benefited the defendant/appellee.” Aplt. Br. at 22.
This argument was not raised in the district court. “Generally, [we] will not
consider an issue raised for the first time on appeal,” Tele-Commc’ns, Inc. v.
Comm’r, 104 F.3d 1229, 1232 (10th Cir. 1997). “[W]e should not be considered a
second-shot forum, a forum where secondary, back-up theories may be mounted for
the first time.” Id. at 1233 (internal quotation marks omitted). Mr. Glenn argues that
“extenuating circumstances prevented him from presenting the issue at the trial level”
because he “was not aware of ‘Fraud upon the Court’ until he received the March 13,
2018 Appellate Record where he noticed the complaint he filed on March 15, 2015
did not include the 47 Exhibits filed with the case.” Reply Br. at 7.
Even accepting Mr. Glenn’s reason for failing to raise this argument in the
district court, we conclude he has waived it due to inadequate briefing. Mr. Glenn’s
new fraud argument, which consists of the wholly unsupported claim that defendants
“ensured this evidence was excluded,” Aplt. Br. at 4, and “subverted evidence by
removing the 47 exhibits filed with the court,” Reply Br. at 7, amounts to no more
than “[m]ere conclusory allegations[, which] . . . does not constitute adequate
briefing,” MacArthur v. San Juan Cty., 495 F.3d 1157, 1160-61 (10th Cir. 2007)
(internal quotation marks omitted). Accordingly, the district court did not abuse its
discretion in denying Mr. Glenn’s Rule 60(b)(3) motions.
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III. CONCLUSION
We affirm the district court’s judgment.
Entered for the Court
Scott M. Matheson, Jr.
Circuit Judge
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