Cormier v. City of Topeka ( 2007 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
January 3, 2007
FO R TH E TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
CLIFFORD CORM IER,
Plaintiff-Appellant,
v. No. 06-3130
(D.C. No. 05-CV-4138-JAR)
CITY OF TO PEK A, KANSAS; (D . Kan.)
CO UNTY OF SHAW NEE, KANSAS,
The Board of County Commissioners
of the County of Shaw nee, Kansas;
STA TE O F KANSAS,
Defendants-Appellees.
OR D ER AND JUDGM ENT *
Before HO LM ES, M cKA Y, and BROR BY, Circuit Judges.
Clifford Cormier, the owner of a Topeka, Kansas, liquor store, appeals the
district court’s dismissal, for lack of federal jurisdiction, of his suit concerning
state and local liquor laws. W e have jurisdiction under 28 U.S.C. § 1291.
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist 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not binding precedent, except under the doctrines of law of the case, res judicata,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 w ith Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
Having undertaken a de novo review, see High Country Citizens Alliance v.
Clarke, 454 F.3d 1177, 1180 (10th Cir. 2006), we AFFIRM for substantially the
same reasons stated in the district court’s M arch 9, 2006, order and opinion.
The district court appropriately relied on the “well-pleaded complaint” rule
to evaluate federal jurisdiction. It is apparent that M r. Cormier’s issues actually
concern the laws and regulations of the State of Kansas, the County of Shawnee,
and the C ity of Topeka, not federal law s or regulations. In his complaint, M r.
Cormier did cite to certain federal provisions that generally touch upon unfair
practices related to the liquor business, including parts of Title 27 of the Code of
Federal Regulations. However, the district court correctly concluded that M r.
Cormier did not plead any facts that would place his alleged dispute within the
ambit of those provisions. Thus, there is no federal question jurisdiction under 28
U.S.C. § 1331. 1 See Empire Healthchoice Assurance, Inc. v. M cVeigh, 126 S. Ct.
2121, 2131, 2132-33 (2006) (“A case ‘aris[es] under’ federal law within the
meaning of § 1331 . . . if ‘a well-pleaded complaint establishes either that federal
law creates the cause of action or that the plaintiff’s right to relief necessarily
depends on resolution of a substantial question of federal law.’”) (quoting
1
The district court properly focused its jurisdictional analysis primarily on
the federal question issue under 28 U.S.C. § 1331. M r. Cormier admitted in his
complaint that he is a citizen of Kansas; as the district court correctly noted, this
negated a requisite basis for diversity jurisdiction under 28 U.S.C. § 1332.
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Franchise Tax Bd. of Cal. v. Construction Laborers Vacation Trust for Southern
Cal., 463 U.S. 1, 27-28 (1983)).
On appeal, M r. Cormier also alleges the defendants have violated his
constitutional right to equal protection of the laws. Because he did not plead any
equal protection claim before the district court, however, he has waived the
opportunity to raise such a claim in this court. “[T]o preserve the integrity of the
appellate structure, we should not be considered a ‘second-shot’ forum, a forum
where secondary, back-up theories may be mounted for the first time.”
Tele-Communications, Inc. v. Comm’r, 104 F.3d 1229, 1233 (10th Cir. 1997).
The judgment of the district court is AFFIRMED.
Entered for the Court
Jerome A. Holmes
Circuit Judge
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