UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

________________ _________________ COLUMBIAN FINANCIAL CORPORATION, Plaintiff - Appellant,

v. MICHELLE W. BOWMAN, in her official capacity as Bank Commi ssioner of Kansas; DEPUTY BANK COMMISSIONER OF KANSAS, Defendants - Appellees. No. 18-3121 (D.C. No. 2:14-CV -02168-SAC-KGS) (D. Kan.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before BRISCOE , McKAY , and HOLMES , Circuit Judges.

________________ _________________ In this § 1983 action, Plaintiff C olumbian Financial Corporatio n alleges that it was denied procedural and substantiv e due process when Defendants, the Bank Commissioner of Kansas and the Deputy Bank Commissioner of Kansas, declared the Columbian Bank and Trust Company insolvent in 2 008. Defendants moved for summ ary judgment, or in the alternative for judgment on the pleadings. Defendants argu ed that res judicata barred Plaintiff’s suit because Plainti ff previously sought judicial r eview of Defendants’ actions

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata , and collateral estoppel.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 1 0th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### April 12, 2019
Elisabeth A. Shumaker Clerk of Court2 in Kansas state court. The district court agreed and granted D efendants’ motion. Plaintiff timely appealed. Exerc ising jurisdiction pursuant to 28 U.S.C. § 1291, we affirm.
I We discussed the underlying facts in a prior appeal. Like many financial instituti ons, The Columbi an Bank and Trust Company [(the “Bank”)] e xperienced financial difficulties during the 2007–2008 financial cr isis. These difficulties led the FDIC to conduct an onsite e xamination of the [B]ank and downgrade its supervisory rating; months later, the [B]ank ente red into a consent agreement with the FDIC and the state bank commission. The consent agreement statedthat the FDIC and the state bank commission “had reason to believe that the [B]ank had engaged in unsafe and unsound b anking practices,” and the FDIC and the state bank commission ordered the [B]ank to “cease and desist” from those practices. T he order stiffened regulatory oversight of the [B]ank, requiring written liquidity analyses, projections on sources of liqui dity and uses of funds, and revi ew and amendment of the [B]ank’s manage ment policies. The [B]ank’s analyses, projections, and policy amendments were to be submitt ed to the state bank commission and the FDIC for review and commen t. The [B]ank complied with these requirements. Notwithstanding the [B]ank’s compliance, the state bank commission declared the [B]ank in solvent [in August 2008], seiz ed the [B]ank’s assets, and appoint ed the FDIC as receiver. The s ame day, the FDIC sold many of the [ B]ank’s assets to a third party in a prearranged sale. Columbian Fin. Corp. v. Stork ( Columbian I ), 811 F.3d 390, 394 (10th Cir. 2016) (citation omitted). Defendants’ s eizure of the Bank begat over a decade of litigation in state and federal courts.3 A. Judicial Review in Kansas State Court The Bank and its sole shareholde r, Plaintiff Columbian Financia l Corporation, sought judicial review of the seizure in state district court i n September 2008. One of their arguments was that th e “Commissioner . . . intentionally deprived [them] of due process of law as required by the Fourteenth Amendment to the U nited States Constitution by seizing the [Ban k] without any notice or any he aring on whether the [Bank] was insufficiently capita lized or otherwise insolvent, a nd without following the procedures” required by st ate law. App. Vol. II at 450. The state district court agreed , finding that “[s]ome substanti ve post-deprivation review is required in order to constitutionally ground the deci sion” to seize a bank. Id. at 540 (citing Mathews v. Eldridge , 424 U.S. 319 (1976)). Accordi ngly, the state district court remanded the case to the Office of the State Bank Commiss ioner for a post-seizure hearing. The Bank Commissioner presided over the hearing and, in April 2012, granted summary judgment in favor of the Office of the State Bank Commi ssioner after finding that it acted lawfully in declar ing the Bank insolvent and appo inting the FDIC as receiver. The Bank and Plaintiff again sou ght judicial review. They argu ed that (1) “[t]he Commissioner’s actions, or the sta tute or rule and regulation o n which the Commissioner’s actions are based, violated the Due Process Clau se on its face or as applied by allowing the Commiss ioner to seize a solvent, adequa tely capitalized bank;” and (2) “[t]he Commissioner viola te[d] the Due Process Clause b y failing to provide a timely and adequate hearing fo r the deprivation of [Plaintiff’s ] liberty or property.” App.4 Vol. III at 598. The Commissione r moved to dismiss the petitio n for judicial review as moot. The state district cour t agreed, finding that it “lack[e d] jurisdiction to issue an opinion” “[b]ecause [i t could not] . . . pr ovide the [Plaintiff ] with any relief.” Id. at 617. Plaintiff appealed from the state district court’s order dismis sing the petition for judicial review. In the Kansas Court of Appeals, Plaintiff arg ued that the state “district court’s ruling, denying judicial review of the Commissioner’s s eizure order, leaves the Commissioner with unfettered and un checked discretion to depriv e citizens of property, in derogation of the fundamental and bedrock princip[les] under lying due process of law.” Id. at 631. Plaintiff raised, as one of its “Issues to be Decided on Appeal,” the question of whether the Commissi oner’s seizure of the Bank, bas ed on a “novel interpretation” of state law, “ den[ied] [Plaintiff] due process of law in violation of [the] Fourteenth Amendment to the U nited States Constitution.” Id. at 633. In its briefing before the Kansa s Court of Appeals, Plaintiff a rgued that the Commissioner denied it notice of the seizure by relying on “a n ovel interpretation of its own regulation in the course of acivil enforcement action.” Id. at 651. Plaintiff maintained that this “grant[ed] to the Commissioner unfettered and unchecked discretion on the proper interpretation of the statute and . . . violate[d ] due process.” Id. at 652 (quotation marks omitted). Plain tiff also argued that the stat e courts had jurisdiction over its petition for judicial review bec ause the lack of “judicial review of a state bank closure . . . would create serious constitu tional implications as it wo uld deny banks and their shareholders their fundamenta l right to due process.” Id. at 661.5 The Kansas Court of Appeals “affi rm[ed] the district court’s de nial of relief because the Bank and [Plainti ff] . . . failed to meet their bur den of proving the invalidity of the Commissioner’s action unde r the Kansas Judicial Review A ct.” Columbian Bank & Tr. Co. v. Splichal , 329 P.3d 557, 2014 WL 3732013, at *1 (Kan. Ct. App. 2014) (pe r curiam) (unpublished table deci sion). Reviewing Plaintiff’s du e process arguments de novo, the Kansas Court of Appeal s held that post-seizure proces s “was necessary to provide due process to” Plaintiff. Id. at *9. The court explain ed that, “[c]learly, [Plaintiff] should be entitled to notice and an opportunity to be heard, which was provided to them when they recei ved review from the Commissione r and the Kansas courts under the KJRA.” Id. The court further noted that “ it was the [first state] distri ct court’s remand of the judicial re view action [to the Commission ] which led to the substantive post-deprivation re view that is required to constit utionally ground the Commissioner’s decision to close t he Bank, to seize its assets, and to appoint a receiver.”
Id. at *13 (citing Mathews , 424 U.S. 319). The Supreme Court of Kansas de nied Plaintiff’s petition for rev iew in June 2015. Plaintiff did not file a petition for a writ of certiorari in t he United States Supreme Court.
B. Section 1983 Actio n in Federal Court While Plaintiff’s appeal was pendi ng in the Kansas Court of App eals, Plaintiff filed this § 1983 action in the U nited States District Court fo r the District of Kansas. Plaintiff sought equitable relie f for alleged violations of its procedural and substantive due process rights. Defendants moved to dismi ss. In response, “the district court ordered dismissal [of the equitable clai ms] without prejudice under Younger v. Harris , 401 U.S.6 37 (1971),” because state court re view of Plaintiff’s petition for judicial review was ongoing. Columbian I , 811 F.3d at 393 (parallel c itation omitted). Plaintiff appea led, but “the state proceeding terminated while th[e] appeal was pending .” Id. Therefore, “we vacate[d] dismissal of the equita ble claims and remand[ed] thes e claims to the district court so that it c[ould] reconsid er them without the need to ab stain now that the state proceedings ha[d] ended.” Id. at 395. On remand, Plaintiff filed its Fir st Amended Complaint, which i s the operative pleading in this appeal. Plainti ff again alleged violations of its procedural and substantive due process rights by the Bank Commissioner of Kans as and the Deputy Bank Commissioner of Kansas, ac ting in their official capacitie s. Plaintiff sought “an injunction requiring Defendants to provide [Plaintiff] a hearin g before a neutral judge or magistrate at which it may pursu e injunctive relief sufficient to remedy the injuries [Plaintiff] has suffered arising from the issuance of the Decla ration [of insolvency], the seizure of the Bank, and the appo intment of the FDIC as receive r.” App. Vol. I at 34. Defendants again moved to dismi ss. The district court granted Defendants’ motion to dismiss, finding that Plaintiff’s claims were barred by soverei gn immunity. Columbian Fin. Corp. v. Stork (Columbian II) , 216 F. Supp. 3d 1267, 1275 (D. Kan. 2016). Plaintiff appealed for a second tim e. We again reversed after concluding that Ex parte Young , 209 U.S. 123 (1908), applied. We reasoned that Plaintiff had alleged an ongoing “violation of its due process rights . . . because it [ claimed that it] still has not received a meaningful hearing.” Columbian Fin. Corp. v. Stork ( Columbian III ), 702 F. App’x 717, 720 (10th Cir. 2017). We noted that Plaintiff “seek s a hearing before an7 impartial hearing officer after s ufficient opportunity for disc overy.” Id. (footnotes omitted). We ultimately conclude d that Plaintiff had “identif[ ied] injuries that could be redressed by its requested relief—specifically, a new hearing w ith adequate procedural protections—which could overturn the insolvency fi nding and res tore the Bank’s charter.” Id. at 723. On remand, Defendants moved for s ummary judgment, or in the alt ernative for judgment on the pleadings, on th e bases of res judicata and col lateral estoppel. Defendants also moved to stay di scovery pending the district co urt’s decision on their dispositive motion. The magistr ate judge initially denied Defe ndants’ motion to stay discovery, but the district cour t sustained Defendants’ objecti on to the magistrate judge’s order and stayed discovery pend ing its decision on Defendants’ dispositive motion. The district court then granted Def endants’ dispositive motion, fin ding that res judicata barred the district court from adjudicating Plaintiff’s due process cl aims. Plaintiff timely appealed, challenging the district court’s rulings on the dispo sitive motion and the motion to stay discovery.
II “The district court’s ‘applicati on of res judicata to the facts [of a case] is a pure question of law subject to de novo review.’” 1 City of Eudora v. Rural Water Dist. No. 4 ,

1 As the parties acknowledge, it is unclear whether the district court analyzed Defendants’ dispositive motion as a motion for summary judgment or a motion for judgment on the pleadings. The ans wer to this question determi nes whether we accept the facts as alleged i n Plaintiff’s complaint, BV Jordanelle, LLC v. Old Republic Nat’l Title Ins. Co. , 830 F.3d 1195, 1200 (10t h Cir. 2016) (motion for (continued . . .)8 875 F.3d 1030, 1035 (10th Cir. 2017) (ellip sis omitted) (quotin g Plotner v. AT&T Corp. , 224 F.3d 1161, 1168 (10th Cir. 2000)). “Fede ral courts must gi ve a state court judgment the same preclusive effect as would its originating state.” Campbell v. City of Spencer , 777 F.3d 1073, 1077– 78 (10th Cir. 2014). In Kansas, “the doctr ine of res judicata will bar a successive suit [ when] th e following four elements [are] . . . met: ‘(a) the same claim; (b) the same parties; (c ) claims that were or could have been raised; and (d) a final judgment on the merits.’” Cain v. Jacox , 354 P.3d 1196, 1199 (Kan. 2015) (quoting In re Tax Appeal of Fleet , 272 P.3d 583, 589 (Kan. 2012)). Even when these four element s are met, res judicata “does not apply when the party against whom the earlier decision is asserted did not have a full a nd fair opportunity to litigate the claim.” Kremer v. Chem. Constr. Corp. , 456 U.S. 461, 481–82 & n.22 (1982) (quotation marks omitted). Plaintiff does not dispute that this § 1983 action involves the same parties as the prior state proceedings. Nor doe s Plaintiff contest that the K ansas Court of Appeals entered a final judgment on th e merits. Rather, Plaintiff argu es that res judicata is inapplicable because its due pro cess claims were not ripe until the end of the judicial review process in state court; th e arguments it raised in the s tate judicial review proceedings are different from those raised in this § 1983 acti on; and it did not have a full and fair opportunity to litigate in state court. (cont’d) judgment on the pleadings), or ex amine the record for a genuine dispute of material fact, Clark v. Colbert , 895 F.3d 1258, 1261 (10th Ci r. 2018) (motion for summary judgment). The difference is imm aterial for this appeal, which turns on the extent to which Plaintiff raised, or could have raised, its due process c laims during the judicial review proceedings in Kansas state court.9 Plaintiff is correct that it need ed to exhaust available state remedies before filing its § 1983 action, but this exha ustion requirement does not dep rive the state judgment of preclusive effect. “In procedur al due process claims, the depr ivation by state action of a constitutionally protected inter est in ‘life, liberty, or prope rty’ is not in itself unconstitutional; what is uncons titutional is the deprivation o f such an interest without due process of law .” Zinermon v. Burch , 494 U.S. 113, 125 (19 90). “The constitutional violation actionable under § 1983 is not complete when the depr ivation occurs; it is not complete unless and until the St ate fails to provide due proces s.” Id. at 126. “[T]o determine whether a constitutional violation has occurred, it i s necessary to ask what process the State provided, andwhether it was constitutionally adequate.” Id. However, “once [a] state court proceeding is finally resolved, [a] litigant may not be able to challenge the result en tered in that state proceedin g in federal court because of preclusion principles.” B. Willis, C.P.A., Inc. v. BNSF Ry. Corp. , 531 F.3d 1282, 1300 n.21 (10th Cir. 2008) (citing San Remo Hotel, L.P. v. C ity & Cty. of San Francisco , 545 U.S. 323, 341–46 (2005)). “[E]ven when [a] plai ntiff would hav e preferred not to litigate in state court,” “[t]he relev ant question . . . is not whether the plaintiff has been afforded access to a federal forum; rather, the question is whether the state court” judgment precludes the plaintiff’s federal claims. Id. (quoting San Remo Hotel , 545 U.S. at 342). Therefore, Plaintiff’s exhausti on argument does not alter our r es judicata analysis. The claims alleged in this § 19 83 action are not different from those asserted in state court because Plaintiff twi ce raised its due process clai ms in the state judicial review10 proceedings. 2 The Kansas Judicial Review Act allows a state court to set as ide agency action “if it determines . . . [t]he agency action, or the stat ute or rule and regulation on which the agency action is bas ed, is unconstitutional on its fa ce or as applied.” Kan. Stat. § 77-621(c). Plaintiff argued, i n both of its petitions for ju dicial review, that it was denied due process when Defendant s seized the Bank based on a n ovel interpretation of state law and without providing an adequate hearing. 3 Even if Plaintiff had not actually raised its due process claims under the KJRA, res judicata appl ies to “claims that . . . could have been raised” ina prior proceeding. Cain , 354 P.3d at 1199. “Res judicata requires that all the grounds andtheories upon which a cause o f action or claim is founded . . . be asserted in one ac tion or they will be barred in any subsequent action.” Colo. Interstate Ga s Co. v. Beshears , 24 P.3d 113, 123 (Kan. 2001).

2 Plaintiff also argue s that its “due proces s claims hinge on fa cts that developed after the State Proc eedings began.” Aplt. Br. at 36. These facts include “whether the hearing [Plaintiff] received was reasonably prompt , whether it offered a meaningful remedy, whether [Plai ntiff] had an adequate opportun ity to meet the evidence against it, whether the C ommissioner was a biased hear ing officer, and whether the Commissioner’s novel interpretation of the Kansas B anking Code deprived Columbian of its right to fair notice.” Id. All of these facts were known to Plaintiff when it filed its s econd petition for judicial review in state district court. Therefore, Plaintiff could have sought judicial review on these grounds.

3 Plaintiff argues that Kansas co urts follow the primary right/p rimary wrong approach to res judicata and th at, under such an approach, its claim that the Bank was improperly seized is distinct fro m its claim that it was denied due process. We do not reach Plaintiff’s argument about t he primary right/primary wron g approach because Plaintiff neither raised the ar gument in the district court nor argues for plain error review on appeal. Richison v. Ernest Grp. , 634 F.3d 1123, 1130–31 (10th Cir. 2011). Regardless, Plaintiff’s asserti on that it did not previously ra ise its due process claims in the state judicial review pro ceedings is plainly contradicte d by the petitions for judicial review that Plaintiff filed in Kansas state court.11 Finally, Plaintiff had a full a nd fair opportunity to litigate its due process claims in
Kansas state court. “A State ma y not grant preclusive effect i n its own courts to a constitutionally infirm judgment , and other state and federal c ourts are not required to accord full faith and credit to such a judgment.” Kremer , 456 U.S. at 482 (footnote omitted). “But . . . state proceed ings need do no more than sa tisfy the minimum procedural requirements of the F ourteenth Amendment’s Due Proce ss Clause in order to qualify for the full faith and credit guaranteed by federal law .” Id. at 481. “The fact that [a plaintiff] failed to avail hi mself of the full procedures pr ovided by state law does not constitute a sign of their inadequacy.” Id. at 485. Plaintiff relies on Scroggins v. Kansas , 802 F.2d 1289 (10th Cir. 1986), to support its argument that it di d not have a full and fair oppor tunity to litigate its due process claims in the judicial r eview proceedings in Kansas sta te court. In Scroggins , the plaintiff was fired from his job and contested the terminat ion in a state administrative proceeding. He wa s not precluded from subsequen tly litigating a Title VII retaliatory discharge clai m in federal court because, when he sought review of the administrative decision in s tate court, “the character of j udicial review was both narrow and conclusory.” Id. at 1293. Plaintiff’s reliance on Scroggins is misplaced because the Kansas state courts’ review of Plaintiff’s due process claims w as neither narrow norconclusory. As just discussed, the KJRA allows a sta te court to set a side agency ac tion as unconstitutional. Kan. Stat. § 77-621(c). When a plaintiff ra ises a constitutional claim under the KJRA, Kansas stat e courts review the claim de n ovo. Hemphill v.12 Kan. Dep’t of Revenue , 11 P.3d 1165, 1167, 1170 (K an. 2000). In response to Plaintiff’s first petition for j udicial review, the Kansas dist rict court found that Plaintiff was due additional pro cess and remanded for a post-se izure hearing. When the Kansas Court of Appeals a ddressed Plaintiff’s second petiti on for judicial review, it explained that it “ha[d] unlim ited review” over Plaintiff’s “alleged due process violations.” Columbian Bank & Tr. Co. , 2014 WL 3732013, at *9. Therefore, res judicata barred Plaintiff from r elitigating its due process cla ims once the Kansas Court of Appeals concluded that Plaintiff was provided adequate “notice and an opportunity to be heard . . . when [Plaintiff] received review from the Commissioner and the Kansas courts.” Id.
III Plaintiff argues that the district court erred by ordering a st ay of discovery pending its decision on Defendants’ dispo sitive motion. We review the district court’s decision to stay discovery for an abuse of discretion. Diaz v. Paul J. Kennedy Law Firm , 289 F.3d 671, 674 (10th Cir. 2002). The d istrict court did not abuse it s discretion because the facts that Plaintiff sought to develop in discovery were not essentia l to answering the question of whether res judicata barred Plaintiff’s § 1983 action. United States v. Supreme Court of New Mexico , 839 F.3d 888, 904 –06 (10th Cir. 2016); see also Fed. R. Civ. P. 56(d) (explaining that a non-movant can seek to defer consideration o f a motion for summary judgment by “show[ing] . . . tha t, for specified reasons, it ca nnot present facts essential to justify its opposition”). Plain tiff acknowledged, in its oppos ition to Defendants’ dispositive motion, that discovery was not essential to its arg uments. Plaintiff argued that13 it “should be allowed to conduct d iscovery before judgment [wa] s granted,” but stated that it “c[ould] show through te stimony” that it had been depri ved of “its due process rights.” App. Vol. II at 324. Mor eover, to decide whether Pla intiff’s claims were precluded by prior litigation in s tate court, the district cour t needed to examine the nature and scope of the prior litigati on. Discovery would not have al tered the district court’s analysis.
IV We AFFIRM.

Entered for the Court
Mary Beck Briscoe Circuit Judge