Slocum v. Corporate Express U.S. Inc.

FILED
United States Court of Appeals
Tenth Circuit
November 2, 2011
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
KATHERINE R. SLOCUM,
Plaintiff - Appellant,
No. 11-5083
v. (D.C. No. 4:10-CV-00650-TCK-PJC)
(N.D. Okla.)
CORPORATE EXPRESS US INC.;
CORPORATE EXPRESS OFFICE
PRODUCTS INC.; COX
COMMUNICATIONS CENTRAL II,
INC.; COX OKLAHOMA TELCOM,
L.L.C.; COXCOM, INC.; JOURNAL
BROADCAST GROUP, INC.;
JOURNAL BROADCAST GROUP OF
KANSAS, INC.,
Defendants - Appellees.
ORDER AND JUDGMENT *
Before KELLY, HARTZ, and HOLMES, Circuit Judges. **
*
This order and judgment is not binding precedent, except under the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.
**
After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
Petitioner Katherine R. Slocum, appearing pro se, appeals from the
dismissal with prejudice of all her claims against Corporate Express U.S., Inc.,
Corporate Express Office Products, Inc., (“Corporate Express”), Cox
Communications Central II, Inc., Cox Oklahoma Telcom, LLC, Coxcom, Inc.,
(“Cox”), Journal Broadcast Group, Inc., and Journal Broadcast Group of Kansas,
Inc., (“Journal Broadcast”). Slocum v. Corporate Exp. US Inc., No.
10–CV–650–TCK–PJC, 2011 WL 1770815 (N.D. Okla. May 9, 2011). This
action was removed from the Tulsa County district court. Ms. Slocum’s suit
revolves around allegations that the Defendants engaged in illegal surveillance,
harassment, and discrimination. 1(pt. 3) R. 458-60. She has made these claims
against Corporate Express and others in prior suits. The complaint, which seeks
$40 million in actual damages and $20 million in punitive damages, also asserts
claims of (among other things) trespass, computer crime, slander, aggravated
assault, violations of the Americans with Disabilities Act, insurance fraud,
contributory negligence, and wrongful termination. Aplt Br. 14; 1(pt. 1) R. 56.
The district court concluded that Ms. Slocum’s allegations failed to survive
motions to dismiss under Rule 12(b)(6), Fed. R. Civ. P. Slocum v. Corporate
Exp. US Inc., 2011 WL 1770815 at *3. With regard to Cox and Journal
Broadcast, the court found that the complaint did not “set forth any conduct that
is specifically or even implicitly tied to [them].” Id. As for Corporate Express,
Ms. Slocum’s former employer, the court held that the “allegations are so
-2-
outlandish, implausible, and/or incomprehensible that the Court has no ‘reason to
believe that this plaintiff has a reasonable likelihood of mustering factual support
for these claims.’” Id. at *4 (quoting Ridge at Red Hawk, L.L.C. v. Schneider,
493 F.3d 1174, 1177 (10th Cir. 2007) (emphasis omitted)). The court also found
that all but four of Ms. Slocum’s 25 claims (or “propositions”) were barred by res
judicata. Id. On appeal, in a 63-page brief, Ms. Slocum mainly re-alleges the
claims made in the district court and contends that they were improperly
dismissed, in addition to making other procedural and substantive arguments.
First, she argues that Corporate Express and Journal Broadcast failed to
serve their motions to dismiss within the “20 day deadline” required by Federal
Rule of Civil Procedure 12(a)(1)(A)(I). Aplt. Br. 48. (Actually, a defendant, as
of December 1, 2009, has 21 days to answer.) But the docket sheet of the Tulsa
County district court—where the case was originally filed, before being
removed—indicates that the petition and summons were mailed to Corporate
Express on October 1, 2010, 1(pt. 1) R. 66. The district court docket sheet shows
that Corporate Express’s motion to dismiss was filed on October 20, 2010, id. at 4
(Doc. 10). Because a defendant must answer “within 21 days after being served,”
Fed.R.Civ.P. 12(a)(1)(A)(I)—i.e., 21 days after the date of receipt (here, October
6, 2010)—Corporate Express responded well within the deadline. Journal
Broadcast maintains that it was never properly served, but that, in any event, Ms.
Slocum’s pleadings were postmarked October 19, 2010, and contained a summons
-3-
indicating service on October 20, 2010. Journal Broadcast filed its motion to
dismiss on November 10, 2010, 1(pt.1) R. 6 (Doc. 23), so it was timely.
Second, Ms. Slocum argues that four claims (i.e., those not deemed barred
by res judicata) were improperly dismissed for failure to state a claim. Aplt. Br.
49. This court reviews a district court’s dismissal on a Rule 12(b)(6) motion de
novo. Smith v. United States, 561 F.3d 1090, 1098 (10th Cir. 2009). We may not
assess credibility; we only consider whether the allegations, taken as true, are
legally sufficient to allow the suit to proceed. Id. To survive such a motion, a
plaintiff must allege “enough facts to state a claim to relief that is plausible on its
face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). We find that the
claims asserted here are implausible—and wildly so.
Ms. Slocum’s complaint alleges that her former employer, an office-supply
company (which fired her in 2001), hired a “surveillance company” to break into
her home to install “audio-video equipment,” 1(pt. 3) R. 361-62, and repeated the
operation after each of her five different changes of address, id. at 362. They
took videotape of her unclothed, id. at 363, which they then “broadcast[]...to
various radio and television broadcasters,” including Rush Limbaugh, Sean
Hannity, and Big Country 99.5 FM, id. at 365. Corporate Express also made
death threats, id. at 368, hacked into her computer and distributed her credit card
and banking information, id. at 366, slandered her on national talk radio, id. at
369, stalked her, id. at 374, denied her access to local universities, id. at 375,
-4-
commandeered an economics professor to ridicule her in class, id. at 377,
precipitated her divorce, id. at 385, caused an institutionalization that led to a
hysterectomy (an excision of the uterus), id. at 390, and, finally, dispatched
“agents” to practice a “technique [where] they would go to a restaurant that I was
going to, and they would listen to my conversations with friends, and family, and
talk to each other about things that only meant something to me, but my friends,
and family would not have a clue what was going on,” id. at 392. This has gone
on for the “last four years and eight months.” Id. at 363. Its purpose has been to
“humiliate” and “intimidate the Plaintiff over pending civil litigation.” Id. at 363.
Some of Corporate Express’s wrongdoing was accomplished “in concert” with the
Rogers State University Campus Police, “agents” of the State of Oklahoma, and
the Claremore, Oklahoma, police department. Id. at 363. It is entirely unclear
what, if anything, Cox and Journal Broadcast have to do with these allegations.
On appeal Ms. Slocum claims that the district court “completely
misinterpreted” her allegations so as to make them sound “not likely,” Aplt. Br.
30, but we agree with that court’s bottom line: “Defendants should not be forced
to conduct discovery or otherwise proceed with this lawsuit.” Slocum v.
Corporate Exp. US Inc., 2011 WL 1770815 at *4. She wishes to subpoena
documents and records from the Defendants and broadcasters. Aplt. Br. 33. Even
under the permissive standards allowed pro se litigants, Ms. Slocum has not made
allegations sufficiently plausible to survive a motion to dismiss under 12(b)(6).
-5-
Nowhere does the complaint provide any factual substance beyond assertions that
such events occurred, occasionally giving a month or date. Yet Twombly’s
pleading standard is designed precisely to “avoid ginning up the costly machinery
associated with our civil discovery regime on the basis of a largely groundless
claim.” Pace v. Swerdlow, 519 F.3d 1067, 1076 (10th Cir. 2008) (internal
quotations omitted).
Third, she claims that the district court improperly dismissed 21 of her
claims as barred by the doctrine of res judicata. Aplt. Br. 34. She made identical
claims about Corporate Express’s “surveillance” in suits filed in 2008 and 2009;
now she argues that those claims were “dismissed without prejudice” and should
be “treated...as though those previous suits did not exist.” Aplt. Br. 34, 37. Our
review reveals that, in fact, her suits were all dismissed with prejudice. 1 Rule
12(b)(6) dismissals, unless otherwise indicated, constitute a dismissal with
prejudice. In her second suit against Corporate Express, the court indicated that
its dismissal was “without prejudice,” but this was only to allow her to file an
1
Slocum v. Corporate Exp., Inc., No. 08-CV-364-JHP, 2008 WL 2915110(N.D. Okla. July 25, 2008) and Slocum v. Corporate Express US Inc. et al ., No.
09-CV-03-GKF-FHM, Doc. No. 44 (N.D. Okla. Oct. 5, 2009). In 2008 she made
the same allegations—all dismissed—against Rogers State University, Slocum v.
Oklahoma ex rel. Board of Regents of the Univ. of Okla., et al., Case No. 10-CV-
302-GFK-TLW, Doc. No. 22 (N.D. Okla. July 22, 2010); the City of Claremore,
Slocum v. City of Claremore, No. 08-CV-756-GKF-PJC, 2009 WL 2835399 (N.D.
Okla. Aug. 28, 2009); and Saint Francis Health Systems, Slocum v. Saint Francis
Health Systems, et al., Case No. CJ-2008-5761 (Tulsa Dist. Ct.) (dismissed Oct.
3, 2008).
-6-
amended petition, see Slocum v. Corporate Express US Inc. et al ., Case No. 09-
CV-03-GKF-FHM, Doc. No. 24, at 2. She never did. But a Rule 12(b)(6)
dismissal is still an adjudication on the merits (not a technical or procedural
dismissal), since it requires an evaluation of the substance of a complaint. Res
judicata, in turn, precludes re-litigation between parties of claims that were (or
could have been) raised in an earlier action that reached a final judgment on the
merits. King v. Union Oil Co. of Cal., 117 F.3d 443, 445 (10th Cir. 1997). Ms.
Slocum claims the doctrine does not apply because the parties are different. For
instance, she says she filed suit against “Corporate Express A Staples Company”
in 2009, not “Corporate Express, Inc.” But the latter appeared in the caption of
the 2009 suit. The district court properly dismissed most of Ms. Slocum’s claims
under res judicata.
Fourth, she claims that the district court exhibited an “unfair amount of
prejudice towards” her “mental health disability,” since its decision cited only
“one passage” from her complaint, a passage that “happened” to reveal that Ms.
Slocum takes “paranoia medicine.” Aplt. Br. 35-36. We find that the passage
objected to is consistent with her general complaint; that, to her advantage, it was
one of the only allegations to attempt to supply a degree of factual detail; that
other allegations were cited by the court; and that the fact of medical treatment
appears in the passage because Ms. Slocum put it there. To demonstrate a
violation of due process because of judicial bias, a party must show actual bias or
-7-
its appearance by pointing to outward manifestations and reasonable inferences
drawn therefrom. United States v. Gambino-Zavala, 539 F.3d 1221, 1228 (10th
Cir. 2008). Ms. Slocum has hardly met this burden.
Fifth, Ms. Slocum claims it was an abuse of discretion for the district court
to dismiss her “allegation of Loss of Heirs due to Contributory Negligence,”
referring, apparently, to the consequences of the hysterectomy. Aplt. Br. 43. For
the reasons above—namely, that the district court was sufficiently incredulous
that it concluded that Ms. Slocum did not “nudge[] [her] claims across the line
from conceivable to plausible,” Twombly, 550 U.S. at 570—that claim, too, was
properly dismissed.
Sixth, Ms. Slocum claims that there was an abuse of discretion in the
district court’s failure to grant her extensions of time, which denied her a “full
and fair opportunity to litigate the lawsuit.” Aplt. Br. 45. She appears, however,
to refer to motions made in the 2009 suit, which are beyond review here.
Nonetheless, we note that in the instant suit, in which the allegations are largely
the same, Ms. Slocum was granted three extensions of time to file amended
complaints. 1(pt. 3) R. 452.
Seventh, and finally, Ms. Slocum contends that the lower court infringed
(unspecified) rights under the Fourteenth Amendment by demonstrating bias
toward the Defendants, as well as non-parties like Rush Limbaugh and Sean
Hannity—“as if the famous,” she writes, “are not capable of breaking the law.”
-8-
Aplt. Br. 47. But as stated above, we find no evidence of any bias on the part of
the district court.
We have reviewed other contentions raised by Ms. Slocum in this appeal
and find them to be without merit. Some of these arguments, along with new
factual assertions, were first made in her reply brief, which we decline to
consider. Bronson v. Swensen, 500 F.3d 1099, 1104 (10th Cir. 2007).
AFFIRMED.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
-9-