Saleh v. Kimo

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT July 7, 2020
_________________________________
Christopher M. Wolpert
Clerk of Court
HANEEN SALEH,
Plaintiff - Appellant,
v. No. 20-1094
(D.C. No. 1:19-CV-03243-LTB-GPG)
KEDIR KIMO; SUN COAST GEN. INS. (D. Colorado)
AGENCY LLC; R&M PROFESSIONAL
SERVICES,
Defendants - Appellees.
–––––––––––––––––––––––––––––––––––
HANEEN SALEH,
Plaintiff - Appellant,
v. No. 20-1095
(D.C. No. 1:19-CV-03242-LTB-GPG)
CIMINO AND DENHAM, LLC; (D. Colorado)
RICHARDS AND SIMPSON;
CATHERINE JOAN BURNETT
DOTSON; BRIAN C. DOTSON; USAA
INSURANCE COMPANY; LAUFER T.
JAMES; MOHIE ALDEEN MALIKI,
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 these
appeals. 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 This order and judgment is not binding precedent,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
_________________________________
Before PHILLIPS, MURPHY, and McHUGH, Circuit Judges.
_________________________________
Haneen Saleh—proceeding pro se 1—appeals the dismissal without prejudice of
her amended complaints in two cases. We affirm in both cases because Ms. Saleh’s
appellate briefs do not explain how the district court erred in its determination that it
lacked subject matter jurisdiction, and because our review of Ms. Saleh’s arguments is
barred by the firm waiver rule.
I. BACKGROUND
A. Appeal No. 20-1094
On November 15, 2019, Ms. Saleh filed a complaint—on behalf of herself and
other unnamed persons—asserting two claims against Kedir Kimo, Sun Coast General
Insurance Agency, and R&M Professional Services. Ms. Saleh styled her first claim as
“legal system in the law,” and accused each defendant of taking part in insurance fraud
related to a car accident. ROA 8, 55–56 (accident report). Ms. Saleh’s second claim made
brief reference to her husband and children’s “rights of safety” but ultimately described
that claim as being the “same as claim one.” ROA 10.
be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and
10th Cir. R. 32.1.
1
Because Ms. Saleh appears pro se, “we liberally construe [her] filings, but we
will not act as [her] advocate.” James v. Wadas, 724 F.3d 1312, 1315 (10th Cir. 2013).
2
Four days later, the district court ordered Ms. Saleh to cure deficiencies in the
complaint. On December 17, 2019, Ms. Saleh filed an amended complaint restating the
allegations that previously appeared in claim one and omitting claim two.
On January 6, 2020, the district court issued an order to show cause why
Ms. Saleh’s complaint should not be dismissed for lack of standing and jurisdiction. On
January 29, 2020, Ms. Saleh responded that she had standing to assert claims on behalf of
her husband through a power of attorney. Ms. Saleh further alleged that the district court
had diversity jurisdiction to hear her case because she is a “citizen of Texas[,] not
Colorado,” and because Sun Coast General Insurance Agency is “located in California.”
ROA 36–37.
On February 13, 2020, a magistrate judge recommended that Ms. Saleh’s amended
complaint be dismissed for lack of standing and subject matter jurisdiction, and for
failure to comply with Federal Rule of Civil Procedure 8. Ms. Saleh did not file
objections to the magistrate judge’s recommendation within fourteen days. The district
court adopted the magistrate judge’s recommendation and dismissed Ms. Saleh’s
amended complaint without prejudice.
On March 4, 2020, Ms. Saleh filed a letter with the district court explaining that,
in addition to representing her husband, she is also representing herself and her children.
Ms. Saleh’s letter also explained that local lawyers had refused to take her case. That
same day, Ms. Saleh filed a motion for the appointment of counsel. The district court
determined that Ms. Saleh’s letter was not timely filed and that her motion for
appointment of counsel was moot. Ms. Saleh timely filed a notice of appeal.
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B. Appeal No. 20-1095
On November 15, 2019, Ms. Saleh filed a complaint—on behalf of herself and
other unnamed persons—against Cimino and Denham LLC, Richards and Simpson,
Catherine Joan Burnett Dotson, Brian C. Dotson, USAA Insurance Company, “the 3rd
defendant witness,” and Laufer T. James. ROA 5–6. Ms. Saleh’s complaint specifically
alleged that (1) Cimino and Denham LLC lost Ms. Saleh’s case files and kicked her out
of their office; (2) Richards and Simpson presented a fake police report about a car
accident; (3) the Dotsons and Laufer T. James “track[ed] and monitor[ed]” Ms. Saleh
after a car accident; (4) USAA conspired with Ms. Saleh’s doctors to thwart her
insurance claim; and (5) “the 3rd defendant witness” concealed information about the car
accident in an attempt to benefit the Dotsons. ROA 8–9.
Four days later, the district court ordered Ms. Saleh to cure deficiencies in the
complaint. On December 17, 2019, Ms. Saleh filed three separate amended complaints
that restated the allegations in the original complaint. In one of the amended complaints,
Ms. Saleh added Mohie Aldeen Maliki as a new defendant. Specifically, Ms. Saleh
alleged that Mohie Aldeen Maliki produced fraudulent insurance reports.
On January 7, 2020, the district court ordered Ms. Saleh to file a single pleading
containing all her claims for relief. Rather than submit a new amended complaint,
Ms. Saleh filed a handwritten reply explaining the basis for standing and the district
court’s subject matter jurisdiction.
On February 13, 2020, a magistrate judge recommended that Ms. Saleh’s amended
complaints be dismissed (1) for lack of standing and subject matter jurisdiction,
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(2) because the amended complaints are barred by the Rooker-Feldman doctrine, and
(3) because Ms. Saleh failed to comply with Federal Rule of Civil Procedure 8. Ms. Saleh
did not file objections to the magistrate judge’s recommendation within fourteen days.
The district court adopted the magistrate judge’s recommendation and dismissed
Ms. Saleh’s amended complaints without prejudice.
Ms. Salah then filed a letter explaining the factual circumstances surrounding her
lawsuit, together with a motion for the appointment of counsel. The district court ruled
Ms. Saleh’s letter untimely and denied her motion as moot. Ms. Saleh then timely filed a
notice of appeal.
II. DISCUSSION
A. The Merits
We affirm the district court’s dismissal of Ms. Saleh’s amended complaints for
two independent reasons: First, Ms. Saleh’s briefs submitted to this court do not explain
how the district court erred in its reasoning. Second, Ms. Saleh is subject to the firm
waiver rule because she did not timely file objections to the magistrate judge’s
recommendations.
Inadequate Briefing
An appellant’s opening brief must contain “appellant’s contentions and the 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 this requirement, we routinely have
declined to consider arguments that are not raised, or are inadequately presented, in an
appellant’s opening brief.” Bronson v. Swensen, 500 F.3d 1099, 1104 (10th Cir. 2007).
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“Stated differently, the omission of an issue in an opening brief generally forfeits
appellate consideration of that issue.” Id. These requirements apply equally to pro se
litigants. Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 841 (10th Cir. 2005).
In appeal No. 20-1094 and in appeal No. 20-1095, Ms. Saleh filed opening briefs
that merely restate the allegations contained in her amended complaints. Specifically,
Ms. Saleh argues that an unnamed individual filed fraudulent insurance claims pertaining
to a car accident involving Ms. Saleh’s husband, when in fact no such accident ever took
place. Ms. Saleh faults the district court for failing to conduct any hearings in either case
but does not otherwise explain why the district court’s legal conclusions were erroneous.
Because Ms. Saleh’s briefs do not identify any specific legal errors committed by
the district court that might merit reversal, we are obliged to affirm. We acknowledge that
Ms. Saleh and her husband struggle to understand English, but that fact does not
authorize us to “fill the void by crafting arguments and performing the necessary legal
research.” Id. (quoting Anderson v. Hardman, 241 F.3d 544, 545 (7th Cir. 2001)).
Firm Waiver Rule
“This court has adopted a firm waiver rule under which a party who fails to make
a timely objection to the magistrate judge’s findings and recommendations waives
appellate review of both factual and legal questions.” Morales-Fernandez v. I.N.S., 418
F.3d 1116, 1119 (10th Cir. 2005). “This rule does not apply, however, when (1) a pro se
litigant has not been informed of the time period for objecting and the consequences of
failing to object, or when (2) the ‘interests of justice’ require review.” Id.
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The firm waiver rule applies in appeal No. 20-1094 and in appeal No. 20-1095. In
neither case did Ms. Saleh file timely objections to the magistrate judge’s
recommendation.
The first exception to the firm waiver rule does not apply in either case. The
magistrate judge informed Ms. Saleh of the time limit for filing objections and of the
consequences of failing to do so.
The “interests of justice” exception also does not apply. Relevant factors include
“a pro se litigant’s effort to comply, the force and plausibility of the explanation for [her]
failure to comply, and the importance of the issues raised.” Id. at 1120. Here, Ms. Saleh
does not explain why she failed to timely file written objections to the magistrate judge’s
recommendations. And even if we were to liberally construe Ms. Saleh’s limited English
as providing such an explanation, the interests of justice would not favor waiving the rule
in this case. Our own review of the record reveals that Ms. Saleh never alleged complete
diversity between the parties to either lawsuit. Consequently, the district court did not
commit any “plain error” in its determination that it lacked subject matter jurisdiction.
See id. at 1122 (analogizing the interests of justice exception to plain error review). For
these reasons, the firm waiver rule applies and bars us from reviewing Ms. Saleh’s
arguments.
B. Motion to Proceed in Forma Pauperis
In appeal No. 20-1094 and in appeal No. 20-1095, Ms. Saleh filed motions to
proceed in forma pauperis. “In order to succeed on [her] motion[s], an appellant must
show a financial inability to pay the required filing fees and the existence of a reasoned,
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nonfrivolous argument on the law and facts in support of the issues raised on appeal.”
DeBardeleben v. Quinlan, 937 F.2d 502, 505 (10th Cir. 1991). Ms. Saleh has not met this
burden; our review of the record reveals no nonfrivolous argument in support of her
appeals. Accordingly, we also deny Ms. Saleh’s motions to proceed in forma pauperis.
III. CONCLUSION
For the foregoing reasons, we AFFIRM in appeal No. 20-1094 and in appeal
No. 20-1095. We also DENY Ms. Saleh’s motions to proceed in forma pauperis in both
appeals.
Entered for the Court
Carolyn B. McHugh
Circuit Judge
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