UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

 

GENE AUTREY BURRIS, SR., 

individually, 

 Plaintiff-Appellant, 

v. 

BOB MOORE AUTO GROUP, INC., 

LLC; BOB MOORE IMPORTS BOB 

MOORE KIA LLC; BOB MOORE 

BUICK PONTIAC GMC LLC, and all 7 

officers; MARK MOORE, President and 

CEO of Bob Moore Auto Group, Inc., 

LLC; CHARLES GRIFFIN, VP Variable 

Operations BMAG; SAVANNAH 

EMERY, HR Generalist II BMAG; 

CATHY TURNER, Payroll BMAG; 

JEFF POWELL, General Manager 

BMAG; JOHN GULLETT, Sales 

Manager of Bob Moore Imports Bob 

Moore Kia LLC; RALPH ASHLEY, 

General Sales Manager of Bob Moore 

Buick Pontiac GMC LLC, 

 Defendants-Appellees. 

No. 13-6067 

(D.C. No. 5:12-CV-00440-HE) 

(W.D. Okla.)

 

ORDER AND JUDGMENT*

 

* 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. This order and judgment is not binding 

precedent, except under the doctrines of law of the case, res judicata, and collateral 

estoppel. It may be cited, however, for its persuasive value consistent with 

Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.. 

FILED 

United States Court of Appeals 

Tenth Circuit 

July 10, 2013

Elisabeth A. Shumaker 

Clerk of Court
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Before TYMKOVICH, ANDERSON, and MATHESON, Circuit Judges. 

 

 Plaintiff Gene Autrey Burris, Sr., brought this action claiming he had been 

discriminated and retaliated against in connection with his employment. Following 

the entry of judgment for defendants, he timely filed this appeal. He challenges only 

one ruling by the district court: the denial of his motion for default judgment based 

on the asserted untimeliness of defendants’ answer to his third amended complaint. 

A brief summary of the few pertinent procedural facts will suffice to demonstrate that 

this appeal lacks merit. 

 Defendants successfully moved to dismiss Mr. Burris’ original complaint. 

Granted leave to amend following the dismissal, Mr. Burris filed an amended 

complaint and then a second amended complaint in quick succession. Defendants 

again moved to dismiss. This time, the district court noted Mr. Burris still had not 

corrected a number of previously cited pleading deficiencies, but expressly deferred 

ruling on the motion to dismiss to give Mr. Burris one last opportunity to fix his 

complaint. R. Vol. 1, Pt. 1 at 366. Mr. Burris filed a third amended complaint on 

August 22, 2012, which put the pending motion to dismiss back at issue. On 

September 12, 2012, the district court granted the motion in part, dismissing claims 

involving individual defendants, who are not subject to liability under the applicable 

employment discrimination laws, see Butler v. City of Prairie Village, Kan., 172 F.3d 
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736, 744 (10th Cir. 1999) (collecting cases); and denied it in part, holding that, 

liberally construed, the allegations against the corporate defendants “barely alleged” 

claims for discrimination and retaliation. R. Vol. 1, Pt. 2 at 90. The defendants filed 

their answer to these claims on September 26, 2012. Mr. Burris then moved for 

default judgment, arguing that defendants’ answer was untimely because it was not 

submitted within twenty-one days of his third amended complaint, as required by 

Fed. R. Civ. P. 12(a)(1)(A)(i). 

The district court denied the motion, noting that in light of its order reserving 

disposition of the pending motion to dismiss while Mr. Burris tried one last time to 

shore up his complaint, the answer was timely under Fed. R. Civ. P. 12(a)(4)(A). 

When a complaint has been challenged by a motion to dismiss, Rule 12(a)(4)(A) 

supplants the filing deadlines in Rule 12(a)(1)(A), tolling the time for an answer until 

fourteen days after notice that the motion has been denied (or, irrelevant here, after 

notice that resolution of the motion has been postponed until trial). This allowed 

defendants to answer the third amended complaint up to fourteen days after notice of 

the September 12 order denying (in part) their motion to dismiss—which they did on 

September 26. 

On appeal, Mr. Burris persists in his misplaced reliance on Rule 12(a)(1)(A) 

and presents no cogent argument to challenge the district court’s straightforward 

adherence to Rule 12(a)(4)(A). Nor is his cause advanced by his conclusory 

assertion that “time after time” the court “has shown nothing but Prejudice against 
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the Plaintiff for Not having a[n] attorney.” Aplt. Br. at 4. That is not proper 

appellate argument, whether the party is counseled or pro se. See Garrett v. Selby 

Connor Maddux & Janer, 425 F.3d 836, 840-41 (10th Cir. 2005) (holding conclusory 

objection, lacking citations to authority and parts of the record supporting claim of 

error, inadequate to entitle pro se appellant to appellate review). 

 The judgment of the district court is affirmed. 

 Entered for the Court 

 Timothy M. Tymkovich 

 Circuit Judge