Webb v. The Billy Madison Show ( 2020 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT November 27, 2020
_________________________________
Christopher M. Wolpert
Clerk of Court
CHRISTOPHER JOHN WEBB,
Plaintiff - Appellant,
v. No. 20-5052
(D.C. No. 4:20-CV-00096-TCK-JFJ)
THE BILLY MADISON SHOW; BILLY (N.D. Okla.)
MADISON; DEREK ALLGOOD; 106.9
KHITS; SCRIPPS MEDIA
INCORPORATED,
Defendants - Appellees.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before PHILLIPS, MURPHY, and McHUGH, Circuit Judges.
_________________________________
Christopher Webb, proceeding pro se, appeals the dismissal of his Amended
Complaint. The Defendants removed the lawsuit to federal court under diversity
jurisdiction, and the district court dismissed on several grounds, including for failure to
state a claim and under Oklahoma’s statutes of limitations. Webb challenges the removal
and dismissal and raises previously unraised issues on appeal. Exercising jurisdiction
under 28 U.S.C. § 1332, we affirm the district court.
*
This order and judgment is not binding precedent, except under the doctrines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.
BACKGROUND1
In 2012, the Billy Madison Show aired a radio episode discussing cremated
remains. Webb called the listener’s line to share that he still had his father’s remains in
his truck and was waiting for a time he and his brothers could bury them. Defendant Billy
Madison asked to use the cremated remains as a cast member on the show, so Webb
agreed to lend them to the show. Webb gave no “release, consent or permission” to open
the funeral-home box. R. at 59. Months later, he learned that the cast had desecrated the
remains by using them with coffee and in an enema.
In early 2019, so about seven years later, Webb sought return of the remains for
burial. On telephoning the show, he was told to e-mail Defendant Derek Allgood.
Allgood responded to Webb’s e-mail with “Hey buddy what address would you like them
sent to.” Id. at 60. Webb provided an address but never received anything. Then, he tried
contacting the Defendants via telephone, Facebook Messenger, and letter, but the
Defendants ignored him. Defendants never returned the remains.
The events had “devastating” and “detrimental” effects on Webb and his brothers.
Id. at 61. He feels it is “horrifying and disgusting what [the] defendants did with [his]
father for a few ratings.” Id. at 61. He sued the Defendants in Oklahoma state court,
seeking $75 million for humiliation and pain and suffering, and $25 million in punitive
damages.
1
We construe Webb’s, a pro se appellant’s, complaint liberally, see Gaines v.
Stenseng, 292 F.3d 1222, 1224 (10th Cir. 2002), and accept the facts alleged as true,
Mayfield v. Bethards, 826 F.3d 1252, 1255 (10th Cir. 2016) (citation omitted).
2
DISCUSSION
I. Removal
On appeal, Webb first challenges the removal of his case to federal court without
his knowledge or consent, or a chance to oppose. The Defendants argue that removal was
proper under diversity of citizenship and that Webb has waived all non-jurisdictional
challenges by filing his motion to remand to state court after the thirty-day deadline
provided in 28 U.S.C. § 1447(c). Webb filed his motion on non-jurisdictional grounds on
April 23, 2020, one day before the court filed its dismissal order and judgment. The
district court dismissed Webb’s motion as moot.
We agree with the Defendants that the federal district court had diversity
jurisdiction. Diversity jurisdiction exists when (1) the amount in controversy exceeds
$75,000, and (2) the action “is between . . . citizens of different States.” 28 U.S.C.
§ 1332(a), (a)(1). “[A] person is a citizen of a state if the person is domiciled in that
state.” Middleton v. Stephenson, 749 F.3d 1197, 1200 (10th Cir. 2014) (citation omitted).
“And a person acquires domicile in a state when the person resides there and intends to
remain there indefinitely.” Id. (citations omitted). Corporations are citizens of the states
in which they are incorporated as well as of states in which they have their principal
places of business. 28 U.S.C. § 1332(c)(1). Here, Webb seeks more than $75,000, the
amount required to be in controversy. And the diversity-of-citizenship requirement is
met. Webb is an Oklahoma citizen; the individual Defendants are Texas citizens; and
Scripts Media is a Delaware corporation with an Ohio principal place of business. For
purposes of diversity jurisdiction, we disregard the Defendant radio station and show.
3
Under Oklahoma law, they lack capacity to be sued, since neither is a “person,
corporation, partnership, or unincorporated association.” Okla. Stat. Ann. tit. 12,
§ 2017(B); see Okla. Stat. Ann. tit. 25, § 16 (“The word ‘person,’ except when used by
way of contrast, includes not only human beings, but bodies politic or corporate.”).
And we agree with Defendants that Webb waived all non-jurisdictional challenges
to removal. Although the district court did not address this argument, we “may affirm on
any ground” supported by the record. Rimbert v. Eli Lilly & Co., 647 F.3d 1247, 1256
(10th Cir. 2011) (citations omitted). “A motion to remand the case [to state court] on the
basis of any defect other than lack of subject matter jurisdiction must be made within 30
days after the filing of the notice of removal.” 28 U.S.C. § 1447(c). The Defendants filed
their notice of removal on March 9, 2020, so the April 23 filing over 30 days later makes
Webb’s motion (on non-jurisdictional grounds) untimely.
II. Dismissal
The district court granted the Defendants’ motion to dismiss, concluding that the
amended complaint failed to state a claim; was time-barred; and constituted the
unauthorized practice of law (Webb purported to represent his brothers). The court also
ruled that Webb lacked standing to represent his father’s estate. The district court
reasoned that Webb’s amended complaint failed to state a claim because it identified no
legal theory for relief. In addition, the district court ruled that any claims would be time-
barred, because Webb filed this lawsuit seven years after the relevant events and the
longest potentially applicable statute of limitations is five years. The district court
considered whether a gratuitous-bailment claim might survive had Webb adequately
4
asserted such a claim. But it concluded that even this claim would succumb to
Oklahoma’s statute of limitations. It relied on Cook v. Bingman, 179 P.2d 470 (Okla.
1947), for the principle that a plaintiff cannot toll a statute of limitations by demanding
the return of property outside the limitations period.
On appeal, Webb argues that he has an “airtight case,” that the court did not apply
the “liberally construed standard afforded pro se litigants,” and that “all issues were
denied improperly.” Opening Br. 2, 4. The Defendants argue that the district court
correctly ruled that Webb has failed to state a claim, and that if he had, any conceivable
claim from the factual allegations would extend past the statute of limitations.
For the reasons given by the district court in its thorough order, we affirm on
statute-of-limitations grounds. “[W]e review de novo the dismissal of an action under
Rule 12(b)(6) based on the statute of limitations.” Hernandez v. Valley View Hosp. Ass’n,
684 F.3d 950, 957 (10th Cir. 2012) (internal quotation marks and citations omitted).
Here, any potentially applicable legal theories would exceed Oklahoma’s conceivably
applicable two- to five-year limitation periods. See Okla. Stat. Ann. Tit. 12, § 95(A). This
bars Webb’s operative fact allegations, which arise from the 2012 events.2 And we agree
with the district court that even if Webb had asserted a claim for conversion by a
gratuitous bailee, the applicable two-year limitation period “for taking, detaining, or
2
This bars these claims even liberally construing his Amended Complaint as
claiming intentional infliction of emotional distress based on the desecration of his
father’s remains months after Webb lent the ashes. See 12 Okl. St. Ann. tit. 12, § 95(A);
cf. Computer Publ’ns, Inc. v. Welton, 49 P.3d 732, 735 (Okla. 2002) (describing
recognition of the tort of intentional infliction of emotional distress).
5
injuring personal property, including actions for the specific recovery of personal
property” would bar the claim.3 See Okla. Stat. Ann. tit. 12, § 95(A)(3).
We do not address Webb’s other arguments that a third party fraudulently settled
this lawsuit, or that the Defendants and federal court officers colluded. Webb raises these
for the first time on appeal, and “[g]enerally, this court does not consider arguments
raised for the first time on appeal.” Strauss v. Angie’s List, Inc., 951 F.3d 1263, 1266 n.3
(10th Cir. 2020) (citation omitted). We decline to exercise our discretion to consider
these arguments. See Lyons v. Jefferson Bank & Tr., 994 F.2d 716, 721 (10th Cir. 1993)
(collecting cases when we have exercised discretion). Having affirmed the district court’s
dismissal, we also decline to grant Webb’s request for an attorney.
CONCLUSION
For the foregoing reasons, we affirm the district court.
Entered for the Court
Gregory A. Phillips
Circuit Judge
3
Even if Webb and the Defendants’ relationship was other than bailment, this
rule would bar claims perfected on Webb’s demand. And in support of any Oklahoma
contract claim, Webb has failed to allege any agreement with mutual consideration
requiring the Defendants to hold the remains until burial. See Okla. Stat. Ann. tit. 15,
§§ 1–2 (providing a contract is “an agreement to do or not to do a certain thing” that
requires consideration).
6