Christensen v. Norman ( 2019 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT November 14, 2019
_________________________________
Elisabeth A. Shumaker
Clerk of Court
DEAN H. CHRISTENSEN,
Plaintiff - Appellant,
v. No. 19-4044
(D.C. No. 2:17-CV-01283-RJS)
DON ROGER NORMAN; ROGER (D. Utah)
WILLIAM NORMAN; CINDY
GAGLIANO; HARVEY COHEN,
Defendants - Appellees.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before HARTZ, HOLMES, and MORITZ, Circuit Judges.
_________________________________
Dean H. Christensen, proceeding pro se, appeals the district court’s order
dismissing his action without prejudice based on a contractual forum-selection
clause. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.
The parties are familiar with the facts, and our disposition of this appeal does
not require us to set them out in detail. Mr. Christensen asserted claims for breach of
*
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 This order and judgment is not binding precedent,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.
contract and fraud, alleging that Pacific Energy Mining Company (Pacific), as his
agent, entered into an Asset Purchase Agreement (APA) with Fidelity Exploration &
Production Company (Fidelity). Mr. Christensen alleged that he was a third-party
beneficiary of the APA. Under the APA, Pacific was to purchase an oil-and-gas
property in Utah from Fidelity, and Mr. Christensen was to receive five percent of the
working interest in the property. Prior to Pacific completing the purchase,
Mr. Christensen made an oral agreement with defendants that Pacific would transfer
its rights under the APA to defendants’ company, Norman Oil & Gas, LLC
(Norman), Norman would finance the purchase and receive 70% of revenue (with
Pacific receiving the other 30%), and Mr. Christensen would receive five percent of
the working interest in the property after Norman completed the purchase.
Defendants then allegedly failed to fund the purchase, prevented Mr. Christensen and
Pacific from completing the purchase by informing Fidelity that Pacific no longer
had any rights in the APA, negotiated with Fidelity to purchase the property, and
tried to flip the property without informing Mr. Christensen or Pacific.
Relevant to this appeal, defendants filed motions to dismiss or transfer for
improper venue based on a forum-selection clause in the APA. The forum-selection
clause provides that the exclusive venue for any litigation related to the APA is
Houston, Harris County, Texas:
All proceedings with respect to, arising directly or indirectly in connection
with, out of, related to or from [the APA] or the other transaction
documents shall be exclusively litigated in courts having sites in Houston,
Harris County, Texas, and each party waived any objection it may have to
venue or jurisdiction therein.
2
Rawle at 112 (boldface and most capitalization omitted). A magistrate judge
recommended that the motions be granted because the action arose out of the APA
and transactions related to it, the forum-selection clause was mandatory and
enforcing it would not be unreasonable or unjust, and Mr. Christensen, although not a
signatory to the APA, was bound by the forum-selection clause because he claimed
he was a third-party beneficiary of the APA. Over Mr. Christensen’s objections, the
district court adopted the recommendation and dismissed the action without
prejudice.1
Mr. Christensen appeals that ruling, but we agree with defendants that his
appellate brief is wholly inadequate to merit substantive review.2 Although we afford
a liberal construction to a pro se litigant’s filings and hold them to less stringent
standards than filings attorneys draft, we have “repeatedly insisted that pro se parties
follow the same rules of procedure that govern other litigants.” Garrett v. Selby
Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005) (internal quotation
marks omitted). Federal Rule of Appellate Procedure 28(a) lists the requirements for
an appellant’s brief. One of those requirements is that an “appellant’s brief must
contain . . . the argument, which must contain . . . appellant’s contentions and the
1
In responding to Mr. Christensen’s objections to the recommendation,
defendants informed the district court that Mr. Christensen failed to disclose “that he
is an officer and director of Pacific,” and argued that this action was merely “an
attempted ‘end-run’ around [a] final, non-appealable decision” by a Texas state
appeals court, R. at 879 n.1, which was in favor of Norman and Fidelity and against
Pacific concerning the APA.
2
Mr. Christensen did not file an appellate reply brief.
3
reasons for them, with citations to the authorities and parts of the record on which the
appellant relies.” Fed. R. App. P. 28(a)(8)(A). Consistent with Rule 28(a)(8)(A)’s
requirements, which apply “equally to pro se litigants,” “[i]ssues will be deemed
waived if they are not adequately briefed.” Garrett, 425 F.3d at 841 (internal
quotation marks omitted). “When a pro se litigant fails to comply with
[Rule 28(a)(8)(A)], we cannot fill the void by crafting arguments and performing the
necessary legal research.” Id. (brackets and internal quotation marks omitted).
In his brief, Mr. Christensen raises three issues, but he provides no legal
authority to support his conclusory assertions of error and no record citations.
Regarding the dismissal order, he simply argues that the district court erred in
concluding that this action arose out of the APA, and instead the court should have
considered that the allegedly fraudulent verbal agreement for Norman to purchase the
property and give him a percentage of the working interest predated the assignment
of the APA. But he offers no supporting legal analysis or legal authority, and “we
cannot fill the void by . . . performing the necessary legal research,” id. (internal
quotation marks omitted). We therefore decline to consider this issue. Id.
Mr. Christensen fares no better on his other two issues. The first concerns the
district court’s determination that his proposed amended complaints would not
survive a motion to dismiss for improper venue. He asserts the district court erred by
not allowing him to amend his complaint, but he provides no discussion or legal
analysis of how his proposed amended complaints would have surmounted the
forum-selection clause, and “we cannot fill the void by crafting arguments and
4
performing the necessary legal research,” id. (internal quotation marks omitted). We
therefore decline to consider this issue. Id.
The other issue involves the district court’s failure to rule on his motion to
disqualify defendants’ counsel, Harvey Cohen, who is also one of the defendants.3
Mr. Christensen contends only that the district court erred in not ruling on the motion
to disqualify because Mr. Cohen had “a clear conflict of interest as he was to be
called as a witness” in this case. Aplt. Br. at 3. But Mr. Christensen fails to flesh out
this argument or provide any supporting legal authority. We therefore decline to
consider this issue. See Garrett, 425 F.3d at 841.
The district court’s judgment is affirmed.
Entered for the Court
Jerome A. Holmes
Circuit Judge
3
The district court did not expressly address this motion, but in its dismissal
order, the court left the determination of all remaining pending motions for the
chosen forum to make if Mr. Christensen refiled his action in the proper forum.
5