Biogenics, Inc. v. Kazen

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
MAR 8 2001
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
BIOGENICS, INC., a Utah
corporation,
Plaintiff-Counter-Claim-
Defendant-Appellee, No. 99-4146
(D.C. No. 96-CV-892-B)
v. (D. Utah)
GAIUS KAZEN, an individual;
DONNA KAZEN, an individual; THE
POPULAR ASSEMBLY OF
SOVEREIGN KAZENS, also known
as P.A.S.K., an artificial business
entity,
Defendants-Counter-
Claimants-Appellants,
and
UNITED STATES OF AMERICA, a
sovereign, Additional adverse claimant
to Interpleaded Res,
Defendant.
ORDER AND JUDGMENT *
*
This order and judgment is not binding precedent, except under the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.
Before HENRY , BRISCOE , and MURPHY , Circuit Judges.
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.
Plaintiff Biogenics, Inc., referred to in these proceedings as E’ola, filed suit
against defendants Gaius Kazen, Donna Kazen and The Popular Assembly of
Sovereign Kazens, also known as P.A.S.K. Defendants filed counterclaims
against plaintiff. The United States was brought into the suit by interpleader
because it claims an interest in monies owed from plaintiff to defendants. Federal
jurisdiction is based on diversity of citizenship, federal question and the federal
government’s tax claim. See 28 U.S.C. §§ 1331, 1332, 1346. Plaintiff’s claims
against defendants are not before us. The district court granted summary
judgment in plaintiff’s favor on defendants’ counterclaims and certified the case
for appeal, pursuant to Fed. R. Civ. P. 54(b), leaving for later resolution the
interpleader claims. Defendants appeal the district court’s summary judgment on
their counterclaims. Our jurisdiction arises from 28 U.S.C. § 1291.
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We do not repeat the district court’s recitation of the underlying facts.
Briefly, E’ola entered into an agreement for distribution of its nutritional and
beauty products with Gaius Kazen and Donna Kazen as part of a multilevel
marketing system. Later, in 1996, the Kazens formed P.A.S.K., a corporate
entity, and assigned their E’ola distributorship to it. The business relationship
between plaintiff and defendants ended when E’ola terminated it, invoking the
Policies and Procedures Manual and the Distributor Agreement between the
parties. Defendants challenge the district court’s rulings on their claims that
E’ola breached the distributorship agreement and that they were otherwise
damaged.
E’ola has filed a motion to dismiss the claims of Donna Kazen and
P.A.S.K. on the ground that they have not filed briefs in this appeal, pursuant to
Fed. R. App. P. 31(c). After the notice of appeal was filed by defendants’
attorney, the attorney was granted leave to withdraw. The appellate briefs were
signed only by Mr. Kazen, pro se. Mr. Kazen is not a licensed attorney.
Therefore, he may not represent Donna Kazen or P.A.S.K. in this appeal. See
Rowland v. California Men’s Colony , 506 U.S. 194, 201-02 (1993) (reiterating
long-standing rule that “a corporation may appear in the federal courts only
through licensed counsel”); cf. Valley Forge Christian Coll. v. Ams. United for
Separation of Church & State, Inc., 454 U.S. 464, 474 (1982) (holding party can
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assert only his own legal rights and cannot rest his claim on rights of others). The
motion to dismiss the claims of Donna Kazen and P.A.S.K. is granted, although
we note that the issues raised in Mr. Kazen’s opening brief affect only him.
We review de novo the district court’s grant of summary judgment, viewing
the record in the light most favorable to the party opposing summary judgment.
McKnight v. Kimberly Clark Corp., 149 F.3d 1125, 1128 (10th Cir. 1998).
Summary judgment is appropriate if there is no genuine issue of material fact and
the moving party is entitled to judgment as a matter of law. Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986); Fed. R. Civ. P. 56(c). There is no dispute that
Utah state law controls the issues raised here based on diversity. We must reach
the same conclusion the state’s highest court would reach. Blanke v. Alexander,
152 F.3d 1224, 1228 (10th Cir. 1998). In applying Utah law, we afford no
deference to the district court’s legal rulings. See Salve Regina Coll. v. Russell,
499 U.S. 225, 238-39 (1991).
Mr. Kazen raises two issues on appeal: (1) E’ola placed undue hardship on
him by unlawfully depriving him of his business, and (2) E’ola slandered him. 1
1
In his reply brief, Mr. Kazen attempts to include additional issues, in effect
challenging all of the district court’s holdings. We decline to address the
expanded issues for two reasons: (1) we generally do not address matters raised
for the first time in the reply brief, Lyons v. Jefferson Bank & Trust , 994 F.2d
716, 724 (10th Cir. 1993), and (2) Mr. Kazen has not presented any argument or
authority to support the expanded issues other than to reiterate his version of the
(continued...)
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The undue hardship claim apparently is presented for the first time in this appeal
so we do not address it. SEC v. Thomas, 965 F.2d 825, 827 (10th Cir. 1992)
(party challenging judgment must provide references to record to carry burden of
proving error); Rademacher v. Colo. Ass’n of Soil Conservation Dists. Med.
Benefits Plan , 11 F.3d 1567, 1572 (10th Cir. 1993) (this court generally will not
consider issue on appeal not raised in district court). Mr. Kazen’s pro se status
“does not excuse the obligation of any litigant to comply with the fundamental
requirements of the Federal Rules of Civil and Appellate Procedure.” Ogden v.
San Juan County , 32 F.3d 452, 455 (10th Cir. 1994) (citation omitted).
Moreover, Mr. Kazen has not presented any authority that Utah law
recognizes a cause of action for undue hardship caused by unlawfully depriving
one of his business. “Despite the liberal construction afforded pro se litigants,
the court will not construct arguments or theories” for a pro se litigant. Drake v.
City of Fort Collins , 927 F.2d 1156, 1159 (10th Cir. 1991) (citation omitted). To
the extent his claim of undue hardship for lost business challenges the district
court’s ruling on his claim of intentional interference with prospective economic
relations, we affirm that court’s ruling for substantially the same reasons given in
1
(...continued)
underlying facts, Phillips v. Calhoun , 956 F.2d 949, 953-54 (10th Cir. 1992)
(party must support argument with legal authority).
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its December 7, 1998 memorandum opinion and order. R. Vol. V, doc. 117, at
10-11.
Turning to Mr. Kazen’s other issue, his slander claim is based on a letter
dated November 12, 1996 from E’ola to its distributors. The district court
correctly characterized this claim as one for defamation and granted summary
judgment in favor of E’ola. We affirm the summary judgment for substantially
the same reasons given by the district court. Id. doc. 117, at 11-12.
The motion to dismiss the claims of Donna Kazen and P.A.S.K. is granted.
The judgment of the United States District Court for the District of Utah is
AFFIRMED. The mandate shall issue forthwith.
Entered for the Court
Michael R. Murphy
Circuit Judge
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