McGowan v. Wal-Mart Stores ( 2019 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT February 19, 2019
_________________________________
Elisabeth A. Shumaker
Clerk of Court
JOSEPHINE McGOWAN,
Plaintiff - Appellant,
No. 18-1397
v. (D.C. No. 1:18-CV-01564-LTB)
(D. Colo.)
WAL-MART STORES,
Defendant - Appellee.
_________________________________
ORDER AND JUDGMENT *
_________________________________
Before BACHARACH, MURPHY, and MORITZ, Circuit Judges.
_________________________________
Ms. Josephine McGowan asserted pro se claims against Wal-Mart
Stores for a slip-and-fall on its property. The district court dismissed the
action without prejudice, ruling that the claims were barred by the Rooker-
Feldman doctrine and Colorado’s statute of limitations. Though the
*
Because oral argument would not materially aid our consideration of
this appeal, we have decided the appeal based on Ms. McGowan’s brief and
the record. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G).
This order and judgment does not constitute binding precedent except
under the doctrines of law of the case, res judicata, and collateral estoppel.
But the order and judgment may be cited as otherwise appropriate. See Fed.
R. App. P. 32.1(a) and Tenth Cir. R. 32.1(A).
Rooker-Feldman doctrine doesn’t apply, the claims are untimely. So we
affirm the dismissal.
1. Background
Ms. McGowan alleges that she injured herself in 2013 when she
slipped in a Wal-Mart store. She first sued Wal-Mart in Colorado state
court. Almost five years after the alleged slip-and-fall, Ms. McGowan
brought this federal lawsuit against Wal-Mart.
2. The Rooker-Feldman Doctrine
The district court ruled that Ms. McGowan’s claims were
jurisdictionally barred by the Rooker-Feldman doctrine. On this issue, we
engage in de novo review. Erlandson v. Northglenn Mun. Ct., 528 F.3d 785,
788–89 (10th Cir. 2008). In conducting this review, we conclude that the
Rooker-Feldman doctrine does not apply.
“The Rooker-Feldman doctrine prohibits federal suits that amount to
appeals of state-court judgments.” Bolden v. City of Topeka, 441 F.3d 1129,
1139 (10th Cir. 2006). This prohibition is triggered when the state court’s
judgment caused the alleged injury. Mo’s Express, LLC v. Sopkin, 441 F.3d
1229, 1237 (10th Cir. 2006). Thus, the doctrine applies when the plaintiff
asks a federal court to alter a state court’s judgment. See, e.g., Mann v.
Boatright, 477 F.3d 1140, 1147 (10th Cir. 2007) (noting that requests for
federal declaratory judgments nullifying state court orders “are precisely
the types of claims encompassed by the Rooker-Feldman doctrine”).
2
But the doctrine applies only to claims resting on allegations
involving the state-court proceedings. If a federal action merely realleges
claims adjudicated earlier in state court, the law of preclusion applies
rather than the Rooker-Feldman doctrine. Exxon Mobil Corp. v. Saudi Basic
Indus. Corp., 544 U.S. 280, 292 (2005); Bolden, 441 F.3d at 1139.
Ms. McGowan’s federal claims do not rest on a state-court order; in
fact, her federal complaint does not even mention the state-court lawsuit
against Wal-Mart. Though the claims in the federal and state lawsuits
appear duplicative, the potential defect in the federal suit would involve
claim preclusion rather than the Rooker-Feldman doctrine. 1 So the district
court erred in basing the dismissal on the Rooker-Feldman doctrine.
3. Statute of Limitations
The district court also regarded Ms. McGowan’s federal claims as
untimely. We agree.
As the district court explained, Colorado law provides a two-year
period of limitations. Ms. McGowan alleges that the wrongful act occurred
1
Claim preclusion is not jurisdictional. See Skinner v. Switzer, 562
U.S. 521, 532 (2011) (“If a federal plaintiff presents an independent claim,
it is not an impediment to the exercise of federal jurisdiction that the same
or a related question was earlier aired between the parties in state court.”
(quotations and brackets omitted)).
3
in 2013, and she waited almost five years to sue. 2 So the action is time-
barred.
4. Allegations of Conspiracy
For the first time on appeal, Ms. McGowan generally alleges a
conspiracy between Wal-Mart and at least some of the attorneys who
represented her in state court. Ms. McGowan asks our court to investigate.
Appellant’s Br. at 2–3.
Ms. McGowan forfeited this claim by failing to raise it in district
court. Pro se litigants are bound by the generally applicable rules of
procedure, Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840–41
(10th Cir. 2005), and we consider arguments newly raised on appeal only
in the “most unusual circumstances,” Carney v. Okla. Dep’t of Pub. Safety,
875 F.3d 1347, 1351 (10th Cir. 2017). Ms. McGowan has not identified any
“unusual circumstances” here, so we decline to consider this newly
presented allegation of a conspiracy.
2
The district court gave Ms. McGowan an opportunity to argue
equitable tolling. But she did not present such an argument.
4
* * *
The district court properly dismissed the action as untimely, so we
affirm. 3
Entered for the Court
Robert E. Bacharach
Circuit Judge
3 A dismissal based on timeliness would ordinarily be with prejudice.
See United States ex rel. Conner v. Salina Reg. Health Ctr., Inc., 543 F.3d
1211, 1226 (10th Cir. 2008) (concluding that because the state-law claims
were barred by the statute of limitations, the district court should have
dismissed these claims with prejudice). Here the dismissal was without
prejudice. But because we are upholding dismissal based on timeliness, the
dismissal functions effectively as a dismissal with prejudice. See
AdvantEdge Bus. Grp. v. Thomas E. Mestmaker & Assocs., Inc., 552 F.3d
1233, 1236 (10th Cir. 2009) (“This court has recognized that a dismissal
without prejudice can have the practical effect of a dismissal with
prejudice if the statute of limitations has expired.”).
5