Buck v. U.S. Patent Office ( 2006 )

F I L E D
United States Court of Appeals
Tenth Circuit
May 19, 2006
UNITED STATES CO URT O F APPEALS
Elisabeth A. Shumaker
FO R TH E TENTH CIRCUIT Clerk of Court
ED W A RD ALLEN BU CK ,
Plaintiff-Appellant,
v. No. 04-4147
(D.C. No. 2:03-CV -783-TS)
TIM L. BRACKETT, JR., Attorney; (D. Utah)
NIXON PEABODY, LLP, a law firm;
D R. W . ROB ER T C OO K ; PA UL
YEAGLE, JR., an individual;
BITLESS BRID LE, IN C., a
Pennsylvania corporation,
Defendants-Appellees,
and
U N ITED STA TES PA TEN T A ND
TRADEM ARK OFFICE, a
government agency, Primary
Exam iner; PETER M. PO O N ,
Assistant Examiner; JOAN M .
OLSZEW SKI, Primary Examiner;
ROBERT P. SW IATEK, Examiner;
NICHOLAS D. LUCCHESI,
Exam iner; C HER YL
G IBSO N -B AY LO R, Examiner; SON
T. N G U Y EN ,
Defendants.
ED W A RD ALLEN BU CK ,
Plaintiff-Appellant,
v. No. 05-4015
(D.C. No. 2:03-CV -783-TS)
U N ITED STA TES PA TEN T A ND (D. Utah)
TRADEM ARK OFFICE, a
government agency, Primary
Exam iner; PETER M. PO O N ,
Assistant Examiner; JOAN M .
OLSZEW SKI, Primary Examiner;
ROBERT P. SW IATEK, Examiner;
NICHOLAS D. LUCCHESI,
Exam iner; C HER YL
G IBSO N -B AY LO R, Examiner; SON
T. NG UY EN; TIM L. BRA CK ETT,
JR., A ttorney; N IX O N , PEA BO DY,
a law firm; D r. W. R OB ER T C OOK;
PAUL YEAGLE, JR., an individual;
BITLESS BRID LE, IN C.,
a Pennsylvania corporation,
Defendants-Appellees.
OR D ER AND JUDGM ENT *
Before O’BRIEN, HOL LOW A Y, and BALDOCK , Circuit Judges.
*
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not binding precedent, except under the doctrines of law of the case, res judicata,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. The court generally disfavors the citation of orders and
judgments; nevertheless, an order and judgment may be cited under the terms and
conditions of 10th Cir. R. 36.3.
-2-
Background
Plaintiff-appellant, Edward Allan Buck, filed a lawsuit against two groups
of defendants arising from the issuance of a patent for what is known as a bitless
bridle. The first group of defendants was the U nited States Patent and Trademark
Office and six individual patent examiners (the governmental defendants). The
second group of defendants was Bitless Bridle, Inc., its officers W . Robert Cook
and Paul Yeagle, Jr., and the law firm of Nixon Peabody, LLP, including one of
its partners, Timothy L. Brackett (the private defendants).
As he did in the district court, plaintiff appears in this court pro se and in
forma pauperis. In No. 04-4147, he appeals from the district court’s order
dismissing the private defendants for lack of personal jurisdiction. And in
No. 05-4015, he appeals from the district court’s order dismissing his claims
against the governmental defendants for lack of subject matter jurisdiction. In
No. 05-4015, he also assigns error to the orders denying his motions to disqualify
counsel, for service of process, for default judgment, to appoint counsel, and for
recusal. W e find no error and affirm. 1
1
No. 04-4147 is plaintiff’s appeal from the district court’s order dismissing
the private defendants. Upon filing, this court tolled the briefing schedule to
allow plaintiff to obtain a Fed. R. Civ. P. 54(b) certification. The district court
denied certification, and while this court’s show cause order w as pending,
entered its order dismissing the claims against the governmental defendants.
(continued...)
-3-
No. 04-4147
The gist of plaintiff’s complaint against the private defendants was that
they obtained the patent for the bitless bridle by false pretenses. The private
defendants filed a motion to dismiss for lack of personal jurisdiction pursuant to
Fed. R. Civ. P. 12(b)(2). The district court granted the motion without
conducting an evidentiary hearing.
Based on the affidavits and written materials, the district court found as to
each defendant that in addition to not being residents, none were licensed to do
business and did not have offices, employees, agents, bank accounts, or telephone
or fax listings in Utah. Similarly, none owned any real estate, controlled any
assets, or paid taxes in the state.
This court reviews de novo a district court’s dismissal for lack of personal
jurisdiction. Benton v. Cam eco Corp., 375 F.3d 1070, 1074 (10th Cir. 2004),
cert. denied, 125 S. Ct. 1826 (2005). W hen jurisdiction is contested, a plaintiff
bears the burden of proving that jurisdiction exists. Id. However, when a court
grants the motion without an evidentiary hearing, a plaintiff need make only a
prima facie showing of jurisdiction to defeat the motion. Id. In determining
1
(...continued)
Plaintiff’s appeal from this order is No. 05-4015. The appeals have been
consolidated for procedural purposes.
-4-
whether a plaintiff has made a prima facie showing, all factual disputes are
resolved in his favor. Id.After review ing the record, we conclude that the district court properly
granted the motion. The court enumerated the requirements for finding either
general or specific jurisdiction under Utah law and for conforming to the due
process clause of the Fourteenth Amendment. See Som a M ed. Int’l v. Standard
Chartered Bank, 196 F.3d 1292, 1295-99 (10th Cir. 1999). It then applied the law
to the affidavits and written materials to reach its conclusion that plaintiff failed
to make a prima facie showing of jurisdiction. As such, we affirm for the same
reasons set forth in the court’s Order Granting Defendants’ M otion To D ismiss
dated June 23, 2004.
No. 05-4015
The thrust of plaintiff’s claims against the governmental defendants was
that as a result of ignorance and inadequate training, they mistakenly issued the
patent for the bitless bridle to defendant Cook, instead of to him. He purported to
state claims for fraud, injunctive relief, fraudulent procurement of intellectual
property rights under the Sherman Act, and unfair competition in violation of the
Lanham Act.
The governmental defendants filed a motion to dismiss pursuant to
Fed. R. Civ. P. 12(b)(1) and 12(b)(6). Following briefing by the parties, the
district court held a hearing. The court granted the motion and in a minute order
-5-
directed the governmental defendants to “prepare an order reflecting today’s
ruling, present [it] to Plaintiff for review, and submit [it] to the Court for
signature.” R. II, doc. 79.
The written order presented by the governmental defendants and signed by
the district court does not contain any of the court’s findings or conclusion, but
instead states only: “Having considered the Complaint and the parties’ written
memoranda, and having heard oral argument from the parties...the C ourt
HEREBY ORDERS, for the reasons stated by the Court on the record at the
conclusion of argument . . . as follows: . . . 2. The Federal Defendants’ M otion to
Dismiss is granted pursuant to Fed. R. Civ. P. 12(b)(1) the court having found
that it lacks subject matter jurisdiction over Plaintiff’s claims. . . .” R. II, doc. 80
at 1-2.
On appeal, plaintiff asks this court to reverse the order for grounds that are
less than clear. For the most part, his brief contains ad hominem attacks on the
district court judge. On their behalf, the governmental defendants make several
arguments as to why the district court’s order was correct. Both parties miss the
point. The order is essentially only one line, and does not include any of the
court’s reasoning or the basis for the decision.
A transcript of the district court’s explanation of its ruling is essential to
appellate review by this court. See McGinnis v. Gustafson, 978 F.2d 1199, 1201
(10th Cir. 1992). H owever, plaintiff failed to request, and thus provide, a
-6-
transcript as required by Fed. R. App. P. 10(b) and 10th Cir. R. 10.1(A)(1),
10.3(C )(3), and 28.2(A )(2).
The requirement of a transcript is not a matter of form over substance.
Instead, this court has been clear that a “failure to file the required transcript [of
an oral ruling] involves more than noncompliance with some useful but
nonessential procedural admonition of primarily administrative focus. It raises an
effective barrier to informed, substantive appellate review.” M cGinnis, 978 F.2d
at 1201. As a result, “this court has held on a number of occasions and in a
variety of settings that the lack of a required transcript leaves us with no
alternative but to affirm the affected ruling.” Id.Plaintiff’s pro se and in forma pauperis status does not require a different
result. In civil cases such as this, an appellant proceeding in forma pauperis may
obtain a transcript at government expense pursuant to 28 U.S.C. § 753(f). To
receive such a transcript, however, § 753(f) requires the appellant to request a
transcript and obtain from either the trial judge or a circuit judge, a certification
that “the appeal is not frivolous (but presents a substantial question).” Plaintiff
neither requested a transcript nor moved for the required certification in either
this court or the trial court. M oreover, a party’s pro se status does not excuse
noncompliance with court rules, nor is a pro se party relieved of the consequences
of noncompliance. See, e.g., Ogden v. San Juan County, 32 F.3d 452, 455
(10th Cir. 1994) (holding that a pro se appellant is not excused from complying
-7-
with fundamental requirements of the Federal Rules of Appellate Procedure);
Nielsen v. Price, 17 F.3d 1276, 1277 (10th Cir. 1994) (this court has repeatedly
insisted that pro se parties follow procedural rules). Therefore, the district court’s
order dismissing the complaint for lack of subject matter jurisdiction is affirmed.
Because the district court properly granted the governmental defendant’s
motion to dismiss for lack of subject matter jurisdiction, plaintiffs’ appeal from
the court’s order denying his motion to disqualify the U nited States A ttorney’s
Office is moot. See D.L. v. Unified Sch. Dist. No. 497, 392 F.3d 1223, 1229
(10th Cir. 2004) (holding that a determination that the district court lacked
jurisdiction over a claim moots any other challenge to the claim). The doctrine of
mootness also precludes our review of plaintiffs’ appeal from the district court’s
orders regarding service of process, the denial of plaintiff’s motion for default
judgment, and the request to appoint counsel. See id.However, plaintiff’s appeal concerning the district court’s denial of his
motion to recuse is not moot, because it appears that he is arguing for recusal not
in connection with a remand, but as an independent ground for reversal.
After the district court entered its order that dismissed the private
defendants for lack of personal jurisdiction, plaintiff filed his first motion for
recusal. The motion did not mention or comply with either 28 U.S.C. § 144 or
§ 455, which are the applicable statutes. Instead, he argued that the district court
judge violated the Code of Conduct for United States Judges by failing to rule
-8-
promptly on various motions, and that the judge was prejudiced against him as
demonstrated by the order dismissing the private defendants. He also asserted
that but for the judge’s prejudice and negligence, a different judge would have
already entered judgment in his favor and ordered the United States Department
of Justice to investigate and prosecute the defendants. The court denied the first
motion to recuse.
Plaintiff’s second motion to recuse was filed approximately one week
following the district court’s first order. Like the first motion, it was based on
alleged violations of the Code of Conduct for United States Judges, coupled with
the charges that delay and adverse legal rulings w ere grounds for recusal. This
time the motion was accompanied by an affidavit from plaintiff. In its order
denying the second motion for recusal, the district court stated because plaintiff
filed a sworn statement, the court would treat the motion as being brought
pursuant to 28 U.S.C. § 144. Section 144 provides for recusal in circumstances
where the judge has a personal bias or prejudice against the moving party or in
favor of the adverse party.
In denying the second motion, the district court held that adverse rulings,
standing alone, do not constitute grounds for recusal. The court also found that
plaintiff’s conclusory assertions of bias and prejudice were legally insufficient.
This court reviews the denial of a motion to recuse for abuse of discretion.
Higganbotham v. Okla. ex rel. Okla. Transp. Comm’n, 328 F.3d 638, 645
-9-
(10th Cir. 2003). The district court’s decision will be upheld unless it is “an
arbitrary, capricious, whimsical, or manifestly unreasonable judgment.” Id.
at 645 (quotation marks omitted).
To warrant recusal under 28 U.S.C. § 144, the alleged bias and prejudice
must be personal and extrajudicial. See United States v. Irwin, 561 F.2d 198, 200
(10th Cir. 1977); Davis v. Cities Serv. Oil Co., 420 F.2d 1278, 1282 (10th Cir.
1970). M oreover, adverse legal rulings, standing alone, do not provide grounds
for recusal. Glass v. Pfeffer, 849 F.2d 1261, 1268 (10th Cir. 1988).
Applying the foregoing standards, we conclude that the district court did
not abuse its discretion in denying the motions for recusal for the reasons stated
in its Order Denying Plaintiff’s M otion to Recuse dated October 7, 2004 and its
Order D enying Plaintiff’s Second M otion to Recuse dated October 26, 2004.
The judgments of the district court are AFFIRMED.
Entered for the Court
W illiam J. Holloway, Jr.
Circuit Judge
-10-