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Kirby v. O'Dens

United States Court of Appeals, Tenth Circuit

December 28, 2016

ELBERT KIRBY, JR.; CALEB MEADOWS, Plaintiffs - Appellants,
v.
DAVID M. O'DENS; SETTLEPOU; OCWEN LOAN SERVICING, LLC, Defendants-Appellees. ELBERT KIRBY, JR.; CALEB MEADOWS, Plaintiffs - Appellants,
v.
DAVID M. O'DENS; SETTLEPOU, a/k/a Settle & Pou, P.C.; OCWEN LOAN SERVICING, LLC, Defendants-Appellees.

         (D.C. No. 4:14-CV-00388-GKF-PJC) (N.D. Okla.) (D.C. No. 4:14-CV-00388-GKF-PJC) (N.D. Okla.)

          Before LUCERO, HOLMES, and MORITZ, Circuit Judges.

          ORDER AND JUDGMENT[*]

          Nancy L. Moritz, Circuit Judge.

         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 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."

         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 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 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 ...


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