Witherspoon v. Miller

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
MAY 26 2004
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
BENARD WITHERSPOON;
JAMES WITHERSPOON;
FRANKIE L. WITHERSPOON;
ESSIE WITHERSPOON;
ULYSSES WASHINGTON; No. 03-3195
MARY WASHINGTON; (D.C. No. 01-CV-4194-JAR)
BOBBY WITHERSPOON; (D. Kan.)
LATONYA WITHERSPOON;
GEORGE WITHERSPOON;
KENDRA WITHERSPOON,
Plaintiffs-Appellants,
and
PAULA PORTER; LUE CYNTHIA
HALL; GARNSTIME SHELTON;
NEW JERUSALEM LOCAL
CONGREGATION,
Plaintiffs,
v.
DOUGLAS S. MILLER; DANIEL H.
DIEPENBROCK; GRANT
SELLENBERGER; LINDA POWELL
GILMORE; MILLER &
DIEPENBROCK, PA,
Defendants-Appellees.
ORDER AND JUDGMENT *
Before KELLY , Circuit Judge, BRORBY , Senior Circuit Judge, and BRISCOE ,
Circuit Judge.
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.
Plaintiffs-appellants, proceeding pro se, challenge the district court’s
judgment dismissing their claims brought under 42 U.S.C. §§ 1981, 1982, 1983,
1985 and 1986, Title VII, and Kansas state law. 1
The district court held that
plaintiffs failed to state a claim upon which relief can be granted on their federal
claims, that diversity of citizenship was lacking because all of the parties except
one defendant resided in the State of Kansas, and that it did not have
*
This order and judgment is not binding precedent, except under the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.
1
Plaintiffs-appellants’ appellate briefs contain additional federal grounds for
their claims, but we do not consider them because they were not presented to the
district court. See Wilburn v. Mid-South Health Dev., Inc. , 343 F.3d 1274, 1280
(10th Cir. 2003).
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supplemental jurisdiction over the state-law claims because federal jurisdiction
had not been established. Accordingly, the district court dismissed the case for
lack of subject-matter jurisdiction, under Fed. R. Civ. P. 12(b)(1), and for failure
to state a claim, under Rule 12(b)(6). We exercise jurisdiction pursuant to
28 U.S.C. § 1291 and affirm.
Defendants are attorneys at law. Plaintiffs engaged defendants to represent
them in litigation filed in a Kansas state court. Dissatisfied with defendants’
representation and the outcome of the state-court litigation, plaintiffs filed the
underlying federal lawsuit. They sought relief for violations of federal
civil-rights statutes, as well as for legal malpractice, malice, fraud, ineffective
counseling, obstruction and other claims.
We review de novo an order dismissing a complaint under either
Rule 12(b)(1) or 12(b)(6), using the same standard applied by the district court.
Ordinance 59 Ass’n v. United States Dep’t of Interior Sec’y , 163 F.3d 1150, 1152
(10th Cir. 1998). “We accept as true all well-pleaded facts, as distinguished from
conclusory allegations, and view those facts in the light most favorable to the
nonmoving party.” Maher v. Durango Metals, Inc. , 144 F.3d 1302, 1304
(10th Cir. 1998). Dismissal of a complaint pursuant to Rule 12(b)(6) will be
upheld only if “it appears beyond doubt that the plaintiff can prove no set of facts
in support of his claim which would entitle him to relief.” Conley v. Gibson ,
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355 U.S. 41, 45-46 (1957). Because plaintiffs are representing themselves
on appeal, their pleadings will be liberally construed. See Haines v. Kerner,
404 U.S. 519, 520-21 (1972).
We have carefully reviewed the record on appeal, as well as the briefs
submitted by the parties. Applying the standards set out above, we affirm the
judgment of dismissal for substantially the same reasons stated by the district
court in its carefully drawn memorandum and order dated June 4, 2003.
The judgment of the district court is AFFIRMED. The mandate shall issue
forthwith.
Entered for the Court
Mary Beck Briscoe
Circuit Judge
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