Kirby v. O'Dens

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT December 28, 2016
_________________________________
Elisabeth A. Shumaker
Clerk of Court
ELBERT KIRBY, JR.; CALEB
MEADOWS,
Plaintiffs - Appellants,
v. No. 15-5107
(D.C. No. 4:14-CV-00388-GKF-PJC)
DAVID M. O’DENS; SETTLEPOU; (N.D. Okla.)
OCWEN LOAN SERVICING, LLC,
Defendants - Appellees.
–––––––––––––––––––––––––––––––––––
ELBERT KIRBY, JR.; CALEB
MEADOWS,
Plaintiffs - Appellants,
v. No. 16-5029
(D.C. No. 4:14-CV-00388-GKF-PJC)
DAVID M. O’DENS; SETTLEPOU, a/k/a (N.D. Okla.)
Settle & Pou, P.C.; OCWEN LOAN
SERVICING, LLC,
Defendants - Appellees.
_________________________________
ORDER AND JUDGMENT*
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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 with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
_________________________________
Before LUCERO, HOLMES, and MORITZ, Circuit Judges.
_________________________________
In this debt-collection action, pro se plaintiffs Elbert Kirby, Jr., and Caleb
Meadows filed separate appeals from district court orders (1) granting the defendants’
motion for partial summary judgment and denying reconsideration (Appeal No. 15-
5107); and (2) dismissing the remaining claim as a discovery sanction (Appeal No. 16-
5029). Exercising jurisdiction under 28 U.S.C. § 1291, we affirm No. 15-5107 and
dismiss No. 16-5029.
ResMae Mortgage Company loaned Kirby $450,000 and secured the loan with a
mortgage on a parcel of Kirby’s real property in Tulsa, Oklahoma.1 ResMae later
assigned the mortgage and accompanying promissory note to U.S. Bank. On April 16,
2010, Ocwen Loan Servicing LLC began servicing the loan for U.S. Bank. Kirby
eventually defaulted on the loan and in September 2012, U.S. Bank filed a foreclosure
action in state court. In March 2014, attorney David O’Dens and his law firm, SettlePou,
began representing U.S. Bank in that foreclosure action, which remains pending.
Proceeding pro se, the plaintiffs filed the instant litigation against Ocwen, O’Dens,
and SettlePou in federal court, seeking relief from “consumer law” violations and “sham
foreclosure proceedings.” R., Vol. I at 29. The plaintiffs asserted claims under the Fair
Debt Collections Practices Act (FDCPA), 15 U.S.C. §§ 1692-1692p, the Fair Credit
Reporting Act (FCRA), 15 U.S.C. § 1681-1681x, and the Telephone Consumer
1
Plaintiff Meadows’ role in this case is unclear, although the defendants
suggest he may be Kirby’s tenant.
2
Protection Act (TCPA), 47 U.S.C. § 227. The district court granted the defendants’ partial
summary-judgment motion on September 21, 2015, resolving all but one FDCPA claim.
On October 9, the district court dismissed the remaining claim as a discovery sanction.2
In a separate filing on October 9, the court entered final judgment, dismissing the entire
action with prejudice and ordering that the defendants recover a previously awarded
$7,407 monetary sanction.
Ten days later, on October 19, the plaintiffs sought reconsideration of the
summary judgment order. The district court construed the motion as arising under Fed.
R. Civ. P. 59(b) (new trial) and/or (e) (alter or amend judgment) and denied it on October
21. On October 26, the plaintiffs filed a notice of appeal (No. 15-5107) designating the
orders appealed from as the orders granting summary judgment and denying
reconsideration.
On November 6, the plaintiffs moved to reconsider the dismissal-sanction order
and final judgment. The district court also construed that motion as arising under Fed. R.
Civ. P. 59(b) and/or (e) and denied relief on November 17, 2015. The plaintiffs then filed
two more reconsideration motions, which the district court denied on February 3 and
February 25, 2016, respectively. On March 21, 2016, the plaintiffs filed a second notice
of appeal (No. 16-5029), designating the order appealed from as the “judgment filing and
orders on the Final Judgment in this Matter.”
2
Throughout the district court proceedings, the plaintiffs engaged in a plethora
of “abusive and childish” discovery tactics, R., Vol. IV at 885, such as insisting at
their depositions that they “live[d] in [their] body” and would one day return home to
“the stars,” and they had no “personal knowledge” of their birthdates, id. at 899-900.
3
Preliminarily, the defendants argue that this court lacks jurisdiction over Appeal
No. 16-5029 as the plaintiffs filed their notice of appeal on March 21, 2016, several
months after the time had expired to appeal the October 9, 2015 final judgment from
which plaintiffs sought to appeal. We agree.
A timely filed notice of appeal in a civil case is a prerequisite to appellate
jurisdiction. See Bowles v. Russell, 551 U.S. 205, 214 (2007). Ordinarily, a notice of
appeal must be filed in the district court “within 30 days after entry of the judgment or
order appealed from.” Fed. R. App. P. 4(a)(1)(A). But certain timely filed motions, such
as a motion for a new trial or a motion to alter or amend the judgment, extend the time to
appeal until 30 days after the district court disposes of the motion. Ysais v. Richardson,
603 F.3d 1175, 1178 (10th Cir. 2010); see also Fed. R. App. P. 4(a)(4)(A). 3
Here, the plaintiffs timely filed on November 6, 2015, a motion to reconsider the
October 9, 2015 dismissal sanction and final judgment and the district court again
construed the motion as arising under Fed. R. Civ. P. 59(b) and/or (e)). That motion
extended the time to appeal to December 17, 2015—30 days from entry of the November
17 order resolving the motion, see id. 4(a)(1)(A) & 4(a)(4)(A). And while the plaintiffs
subsequently filed two more motions for reconsideration, those motions didn’t extend the
3
The first appeal—No. 15-5107—is timely because it was filed within 30 days
from the entry of the October 21, 2015, order denying reconsideration. See Fed. R.
App. P. 4(a)(1)(A) & 4(a)(4)(A). But the scope of the first appeal is limited to the
district court’s denials of summary judgment and reconsideration. See Navani v.
Shahani, 496 F.3d 1121, 1133 (10th Cir. 2007) (“An appellate court has jurisdiction
to review only the judgment or part of the judgment designated in the notice of
appeal.” (brackets and internal quotation marks omitted)).
4
time to appeal beyond the December 17 deadline. See Ysais, 603 F.3d at 1178 (holding
that motions for reconsideration can’t be strung together to extend the appeal period).
Thus, we lack jurisdiction over Appeal No. 16-5029, and we have considered below only
the plaintiffs’ appeal in No. 15-5107 from the district court’s order denying summary
judgment and reconsideration of that denial.
We review summary-judgment orders de novo. Ribeau v. Katt, 681 F.3d 1190,
1194 (10th Cir. 2012). A “court shall grant summary judgment if the movant shows that
there is no genuine dispute as to any material fact and the movant is entitled to judgment
as a matter of law.” Fed. R. Civ. P. 56(a). “When applying this standard, we view the
evidence and draw reasonable inferences therefrom in the light most favorable to the
nonmoving party.” Ribeau, 681 F.3d at 1194 (internal quotation marks omitted).
The plaintiffs’ appeal briefs are mostly devoid of coherent arguments, record
citations, or legal authorities. See Fed. R. App. P. 28(a) (requiring that an appellant’s
brief contain, among other things, “a succinct, clear, and accurate” summation of the
arguments, together with reasoned arguments supported by “citations to the authorities
and parts of the record on which the appellant relies”). And while these pro se plaintiffs
are entitled to a liberal construction of their filings, we won’t act as their advocate.
James v. Wadas, 724 F.3d 1312, 1315 (10th Cir. 2013). In particular, “we will not sift
through the record to find support for [their] argument[s],” Phillips v. James, 422 F.3d
1075, 1081 (10th Cir. 2005), or “fashion [their] arguments” out of the conclusory
allegations they assert “without supporting factual averments,” United States v. Fisher,
38 F.3d 1144, 1147 (10th Cir. 1994). Put simply, the plaintiffs’ pro se status doesn’t
5
excuse their compliance with Rule 28’s briefing requirements. See Garrett v. Selby
Connor Maddux & Janer, 425 F.3d 836, 841 (10th Cir. 2005). Nor does the plaintiffs’
pro se status require that we tolerate their continued childish litigation antics.4
Under these circumstances, we exercise our discretion to review the district court’s
summary judgment order only as to those grounds raised in the plaintiffs’ opening brief
that are readily discernible and not scurrilous. See Garrett, 425 F.3d at 841 (observing
that a pro se plaintiff’s failure to follow Rule 28 may be overlooked ). Only three such
matters come to our attention.
First, the plaintiffs assert that the district court erroneously found their FDCPA
claims time barred. We disagree. The FDCPA has a one-year statute of limitation. 15
U.S.C. § 1692k(d). Ocwen provided validation of the debt in June 2011, see 15 U.S.C. §
1692g (requiring the initial debt collector to provide the consumer verification of the debt
upon notice that the debt is disputed), but the plaintiffs didn’t file suit until July 2014,
roughly two years too late. And Kirby was served in the state foreclosure action by
October 2012, but didn’t file suit within one year from that service. See Johnson v.
Riddle, 305 F.3d 1107, 1113-14 (10th Cir. 2002) (holding that the one-year limitation
4
As an example of the plaintiffs’ failure to demonstrate respect for the
decorum and integrity of the judicial process, the plaintiffs suggest that appellee
SettlePou’s name is misleading under the FDCPA because it “lends itself to a term
referring to defecation,” Aplt. Opening Br. at 7 n.4.
6
period to challenge a debt-collection lawsuit runs from the date of service of process).
The district court thus properly found the plaintiffs’ FDCPA claim untimely.5
Second, the plaintiffs complain that summary judgment was inappropriate because
the defendants relied on copies of loan documents rather than “original documents.”
Aplt. Opening Br. at 15 n.5. But Fed. R. Evid. 1003 allows the use of copies except
when “a genuine question is raised about the original’s authenticity or the circumstances
make it unfair to admit the [copy].” The plaintiffs cite no evidence or circumstances
implicating the rule’s exception.
Third, the plaintiffs argue the district court should have conducted an evidentiary
hearing before granting summary judgment. But such a hearing is not required, as “the
parties’ right to be heard may be fulfilled by the court’s review of the briefs and
supporting affidavits and [submitted] materials.” Geear v. Boulder Cmty. Hosp., 844
F.2d 764, 766 (10th Cir. 1988). Moreover, our review of the record confirms that the
issues and evidence presented in this case could be adequately addressed without a
formal hearing.
Finally, although the plaintiffs’ notice of appeal indicates they challenge the
district court’s denial of reconsideration of its grant of partial summary judgment, their
briefs fail to address this issue. See Muskrat v. Deer Creek Pub. Schs., 715 F.3d 775, 789
5
The plaintiffs also claimed the defendants violated the FDCPA “by
repeatedly calling the Plaintiffs without disclosing the caller’s identity and causing a
telephone to ring and engage in telephone conversation repeatedly and continuously
with the intent of abusing, annoying, and harassing the Plaintiffs.” R., Vol. I at 26.
But that claim was dismissed as a discovery sanction and, as discussed above, this
court lacks jurisdiction to review that dismissal.
7
(10th Cir. 2013) (observing that this court reviews the denial of reconsideration for an
abuse of discretion). Thus, they have waived this issue. See Dubbs v. Head Start, Inc.,
336 F.3d 1194, 1202 n. 4 (10th Cir. 2003) (“[E]ven issues designated for review are lost
if they are not actually argued in the party’s brief.” (internal quotation marks omitted)).
We dismiss Appeal No. 16-5029 for lack of jurisdiction, and we affirm the
judgment in Appeal No. 15-5107.
Entered for the Court
Nancy L. Moritz
Circuit Judge
8