* The case is unanimously ordered submitted without o ral argument pursuant

to Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G ). This order and judgment is not binding precedent, except under the doctrines o f law of the case, res judicata, and collateral estoppel.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. 

## F I L E D United States Court of Appeals Tenth Circuit 

### MAR 1 2002 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

FINANCIAL INSTRUMENTS GROUP, LTD.,

Plaintiff-Appellee,

v. NANCY NGAR CHING LEUNG,

Defendant-Appellant, and NL TRADING; NEW AGE INTERNATIONAL, INC.; P.K. TRADING; SECURED INVESTMENTS,

Defendants. No. 01-1205 (D.C. No. 99-K-1071) (D. Colo.)

ORDER AND JUDGMENT *

Before LUCERO , PORFILIO , and ANDERSON , Circuit Judges.1 Leung constantly refers to herself throughout her opening brief and her

pleadings as “the Non-Attorney, Non-Lawyer, Pro Se, Defendant,” and contends in part that the district court erred in not relaxi ng the pleading standards because of her pro se status. ( E.g. , Appellant’s Br. at 2.) Yet, Leung’s pleadings be fore this court and the district court demonstrate an ob vious legal sophistication, a complete familiarity with the rules of civil proced ure, and an excellent command of the English language. This is particularly stri king because in a motion seeking to avoid an appearance before the district court, L eung claimed a limited ability to use the English language. As the district court po inted out, “[i]f this defendant is limited in her use of English, someone else is writ ing [her pleadings] for her. If she is writing [her pleadings] for herself, then qu ite clearly she is not limited in her ability to use the English language.” (Appelle e’s App. at 170.) The district court expressed concern that an attorney was ghostwriting Leung’s pleadings, allowing her to misrepresent her status as a pro se defendant in order to obtain more leeway as an unrepresented party. ( Id . at 170–71.) See also Haines v. Kerner , 404 U.S. 519, 520 (1972) (calling for liberal con struction of pro se pleadings). We have carefully reviewed all of Leung’s pleadings in this litigation. While we cannot reach any definitive conclusion, we share the district court’s concern. -2- Defendant Nancy Ngar Ching Leung, appearing pro se, 1 appeals the district court’s entry of default judgment against her in favor of plaintiff, Financial Instruments Group, Ltd. (“FIG”). FIG, a Colorado c orporation in bankruptcy, filed suit against Leung seeking recovery, pursuantto 11 U.S.C. §§ 547(b) and 548, of preferential transfers and fraudulent conve yances totaling $484,621.65 that she received from FIG within one year prior to its bankruptcy filing. Leung contends that the district court abused its discret ion in denying her request for dismissal based on her claim of defective service, in denying her motion for change of venue, and in granting default judgment a gainst her for failure to2 We do not consider Leung’s claim that FIG failed to serve her on

October 16, 1999 because the summons was merely lef t in the bushes at her residence. She did not present this argument to th e district court, and we will not consider issues raised for the first time on appeal. See Tele-Communications, Inc. v. Comm’r , 104 F.3d 1229, 1232 (10th Cir. 1997). -3- comply with court orders. Because we conclude the district court did not abuse its discretion, we affirm.
I FIG filed its complaint in the federal district of Colorado on June 8, 1999. FIG sent Leung, a resident of Illinois, a notice o f the lawsuit in July 1999, but she refused service of the complaint by mail and di d not provide FIG with her current address. At the same time as it filed its complaint against Leung, FIG commenced litigation against more than 200 other de fendants in connection with its bankruptcy proceedings, which it claimed result ed in some delays in effectuating service. FIG was unable to effectuate personal service on Leung until October 16, 1999, eight days more than the 12 0-day time period set out in Fed. R. Civ. P. 4(m). 2 Rule 4(m) provides that if service of process “is n ot made upon a defendant within 120 days after the filing of the complaint, the court, upon motion or on its own initiative after notice to the plaintiff, shall dismiss the action without prejudice.” Rule 4(m) further provides, however, that the court may extend the time for service to be effected if the plaintiff sh ows “good cause” for the failure-4-

to serve. “If good cause is shown, the plaintiff i s entitled to a mandatory extension of time.” Espinoza v. United States , 52 F.3d 838, 841 (10th Cir. 1995). Moreover, the district court has the discretion to extend the time for service even when the plaintiff has not shown good cause. Id. at 840–41. “Our scope of review applicable to this ‘good cause ’ determination is whether the court abused its discretion.” Hendry v. Schneider , 116 F.3d 446, 449 (10th Cir. 1997). “The trial court abuses its disc retion in determining whether there is ‘good cause’ if its decision is arbitrary, capricious, or whimsical.” Id

. We conclude that Leung’s actual notice of the actio n and her efforts to avoid service, coupled with the absence of any evidence that FIG was not diligent in its attempts to locate Leung and effect service upon he r, demonstrate good cause. Therefore, the district court did not abuse its dis cretion in refusing to dismiss the action for failure to effect timely service. See id. & n.2 (holding that defendant’s evasion of service constitutes good cause).
II FIG brought this action in the federal district of Colorado, where it is incorporated and where its bankruptcy proceedings are pending. Leung moved for a change of venue, citing 28 U.S.C. § 1404(a), whic h authorizes the transfer of a case to another district in which the case would be properly brought, for the convenience of parties and witnesses or in the inte rests of justice. Her basis for-5-

the request was the fact that, as a resident of Ill inois who was not represented by counsel, it would be inconvenient for her to travel to Colorado. “In order to find error in the refusal to transfer under § 1404(a), it must appear that there was a clear abuse of discretion by the trial judge.” Scheidt v. Klein , 956 F.2d 963, 965 (10th Cir. 1992) (quotation andalterations omitted). “Unless the balance is strongly in favor of the mov ant the plaintiff’s choice of forum should rarely be disturbed.” Id . (quotation and alteration omitted). The “party moving to transfer a case pursuant to § 1404 (a) bears the burden of establishing that the existing forum is inconvenient.” Id . (quotation omitted). “Merely shifting the inconvenience from one side to the other, however, obviously is not a permissible justification for a change of venue.” Id . at 966. Leung did not present any evidence other than her o wn inconvenience as a reason for the requested change in venue. She clai ms that she should be given preference as to the place of venue because she is not represented by counsel. Even if we were not already skeptical of this factual assertion, see, supra, n.1, we find no authority for giving preference to a defend ant’s choice of venue merely because of his or her pro se status. We conclude that the district court did not abuse its discretion in denying Leung’s motion to transfer this action.3 Because Leung had failed to appear for the court he aring at which the

district court made these comments, the court order ed that a transcript of the court’s rulings be sent to Leung by certified mail. -6- III The district court entered a default judgment again st Leung after she failed to comply with numerous court orders. During the d iscovery stage of this litigation, Leung failed to cooperate in the prepar ation of a court-ordered stipulated scheduling and discovery order, failed t o appear at a properly noticed and court-ordered deposition, failed to appear at acourt-ordered hearing relating to a discovery motion that she had filed, and faile d to timely respond to written discovery. After Leung failed to appear at the court-ordered h earing on her discovery motion, the district court expressed its displeasur e that Leung had failed to comply with the court’s orders and outlined the bas is for its belief that Leung was misrepresenting her pro se status to the court. (Appellee’s App. at 170–71; see also, supra, n.1 .) Stating on the record that, because of Leung’s delays, denials, and refusals to recognize the jurisdiction of the c ourt, it was no longer “going to tolerate this kind of conduct from [Leung]” (Appell ee’s App. at 171), the district court instructed FIG that if there were “any furthe r failures on the part of [Leung] to comply with the orders of this Court, to move for the entry of default.” ( Id .) 3-7-

By pretrial order of September 14, 2000, the distri ct court set December 18, 2000, as the trial date. On December 1, 2000, Leun g sought a continuance of the trial date, claiming she was seeking local counsel to represent her in the filing of dispositive pretrial motions. The district court d enied her motion because the date for filing such motions had long since passed. However, Leung then represented to FIG that she was selecting counsel t o represent her at trial and FIG stipulated to a motion to continue the trial. Havi ng granted the motion, the district court ordered Leung’s counsel to enter an appearance by January 18, 2001, and be ready for trial not later than March 1 8, 2001. Counsel not having made an appearance of behalf of Leung by the courtordered deadline, the district court then set a hearing for the entry of default and determination of damages pursuant to its earlier or der that “[f]ailure to comply fully with either of these conditions shall result in the entry of default.” ( Id. at 214.) Appellant filed a motion for reconsiderationtwo days before the hearing date. She claimed she had “inadvertently” failed t o meet the court’s deadline, had diligently attempted to secure local counsel, and w as in the process of retaining counsel in Illinois. ( Id . at 218–19.) Leung did not appear at the court-or dered hearing for entry of default and determination of d amages. The district court-8-

denied her motion for reconsideration, entered default judgment against her, and set damages at $481,621.65, based on admissions mad e by Leung in her deposition. The Federal Rules of Civil Procedure authorize default judgments against a party who fails to obey a scheduling or pretrial order of the court. See Fed. R. Civ. P. 16(f) and 37(b)(2)(C). We review the entry of default judgment for abuse of discretion under the totality of the circumstances. M.E.N. Co. v. Control Fluidics, Inc. , 834 F.2d 869, 872 (10th Cir. 1987). “Because a d efault judgment is a harsh sanction, due process requires that ‘failure’ is a sufficient ground only when it is the result of wilfullness, b ad faith, or some fault of petitioner rather than inability to comply.” Id . (quotation and alteration omitted). “We have defined a willful failure as ‘any intentio nal failure as distinguished from involuntary noncompliance. No wrongful intent need be shown.’” Id. at 872–73 (quoting In re Standard Metals Corp ., 817 F.2d 625, 628 (10th Cir. 1987). Based on our careful review of the record, we are s atisfied that Leung wilfully and intentionally failed to comply with nu merous scheduling and pretrial orders of the district court and that she was aware of the possible consequences of her failure to do so. We find no abuse of the district court’s discretion entering default judgment against Leung.-9-

We DENY Leung’s motion to strike FIG’s supplemental append ix. The judgment is AFFIRMED

.

ENTERED FOR THE COURT

Carlos F. Lucero Circuit Judge