No. 4:14-CV-00388-GKF-PJC) (N.D. Okla.) (D.C. No.
4:14-CV-00388-GKF-PJC) (N.D. Okla.)
LUCERO, HOLMES, and MORITZ, Circuit Judges.
ORDER AND JUDGMENT[*]
L. Moritz, Circuit Judge.
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.
Mortgage Company loaned Kirby $450, 000 and secured the loan
with a mortgage on a parcel of Kirby's real property in
Tulsa, Oklahoma. 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.
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.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.
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
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."
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.
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.
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.
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
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
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