UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

_________________________________

PAULA A. MITCHELL, 

 Plaintiff - Appellant,

v.

THE BANK OF NEW YORK MELLON, 

a New York chartered bank; BRAD 

DEHAAN; HILLARY MCCORMACK; 

BRIGHAM LUNDBERG; LUNDBERG & 

ASSOCS, PC, a Utah professional 

corporation; NUVENTURE GROUP, LLC, 

a Utah limited liability company, 

 Defendants - Appellees,

and

STATUTORY BENEFICIARY DOES, 

1-1000; REPURCHASING DOE; DOES 

1001-2000, 

 Defendants.

No. 19-4098

(D.C. No. 2:18-CV-00636-CW)

(D. Utah)

_________________________________

ORDER AND JUDGMENT*

_________________________________

* After examining the briefs and appellate record, this panel has determined 

unanimously that oral argument would not materially assist in 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

November 2, 2020

Christopher M. Wolpert

Clerk of Court
2

Before TYMKOVICH, Chief Judge, HOLMES and MORITZ, Circuit Judges.

_________________________________

Paula A. Mitchell appeals from the district court’s judgment dismissing her 

federal claims under Federal Rule of Civil Procedure 12(b)(6) and declining to 

exercise supplemental jurisdiction over her state-law claims. Defendant The Bank of 

New York Mellon (Bank) has filed a motion for monetary sanctions under Federal 

Rule of Appellate Procedure 38 and 10th Circuit Rule 46.5 against both Ms. Mitchell

and her current appellate counsel on the ground that the appeal is frivolous and was 

brought as a delay tactic. We agree with the Bank that the appeal is frivolous, but 

only with respect to her current appellate attorney’s briefing and filing of an 

appendix. Therefore, exercising jurisdiction under 28 U.S.C. § 1291, we affirm the 

district court’s judgment and amended judgment, grant the Bank’s motion for 

monetary sanctions against Ms. Mitchell’s current appellate counsel, deny the motion 

for sanctions against Ms. Mitchell, and remand to the district court for the limited 

purpose of determining the amount of the monetary award.

I. Background

In 2006, Ms. Mitchell obtained a loan secured by a deed of trust on real 

property that was her residence. In 2010, the Bank, claiming it had obtained a 

beneficial interest under the trust deed, pursued nonjudicial foreclosure against 

Ms. Mitchell. In 2011, Ms. Mitchell sought to prevent foreclosure by filing an action 

in Utah state district court against the Bank and others, which the parties here refer to 

as Mitchell I. Among other things, she contended that the Bank lacked any beneficial 
3

interest in the trust deed. The court ruled against Ms. Mitchell on all of her claims, 

concluding, among other things, that the Bank was now the beneficiary of the trust 

deed and had foreclosure authority. Ms. Mitchell appealed and later filed a motion to 

dismiss her appeal for lack of jurisdiction, arguing that Mitchell I was not final. The 

Utah Court of Appeals denied that motion, ruling that the district court had “resolved 

all causes of action raised in the litigation.” Aplee. App., Vol. 1 at 181. It later 

affirmed Mitchell I, see Mitchell v. ReconTrust Co. NA, 373 P.3d 189, 193 (Utah 

App. 2016), and the Utah Supreme Court denied certiorari, see Mitchell v. 

ReconTrust Co, 387 P.3d 508, 508 (Utah 2016).

While the appeal of Mitchell I was pending, the Bank initiated a judicial 

foreclosure proceeding in Utah state district court, which the parties refer to as 

Mitchell II. In that case, Ms. Mitchell filed a counterclaim contesting the finality of 

Mitchell I. The Mitchell II court dismissed the counterclaim and granted summary 

judgment to the Bank, concluding that the Bank was entitled to judicially foreclose 

on Ms. Mitchell’s property. Ms. Mitchell appealed the Mitchell II ruling to the Utah 

Court of Appeals.

1

After the Bank purchased the property at a sheriff’s sale, Ms. Mitchell filed the 

instant action in federal district court against the Bank, the law firm that represented 

1 The parties inform us that recently, the Utah Court of Appeals concluded that 

Mitchell II was not final because the state district court had not disposed of 

Ms. Mitchell’s third-party claims. Accordingly, the Utah Court of Appeals dismissed 

the appeal and remanded the case to the state district court. As discussed below, that 

ruling has no consequences for our disposition of this appeal.
4

the Bank in Mitchell II and several of the firm’s attorneys (collectively, Lundberg 

Defendants), NuVenture Group, LLC, and various “Doe” defendants. She generally 

alleged that the Bank did not own her mortgage and had no right to foreclose. She 

asserted two federal claims for violations of due process under 42 U.S.C. § 1983 and 

one federal claim for violations of the Fair Debt Collection Practices Act (FDCPA), 

15 U.S.C. §§ 1692 to 1692p. She also asserted numerous state-law claims. She

sought declaratory relief effectively undoing the foreclosure sale and quieting title in 

her favor, injunctive relief, and damages in the form of attorney’s fees.

The Bank moved to dismiss the complaint under Federal Rules of Civil 

Procedure 12(b)(1) and 12(b)(6). The Bank also filed state-law counterclaims against 

Ms. Mitchell for unlawful detainer, ejectment, and trespass, and a third-party 

complaint against unknown defendants for ejectment and trespass. Ms. Mitchell 

moved to dismiss the counterclaims, which arose from her continued possession of 

the property after the sheriff’s sale.2

After a hearing, the district court dismissed with prejudice all three of 

Ms. Mitchell’s federal claims under Rule 12(b)(6) for failure to state a claim upon 

which relief can be granted, declined to exercise supplemental jurisdiction over her 

2 The Lundberg Defendants also filed a motion to dismiss, which the district 

court granted. NuVenture Group answered the complaint and filed a crossclaim 

against the Bank, which the district court dismissed without prejudice for lack of 

jurisdiction. The district court’s disposition of the case as to these defendants is not 

at issue in this appeal; Ms. Mitchell expressly elected not to proceed with her appeal 

as to the Lundberg Defendants, see Aplt. Opening Br. at 1, and her appellate briefs 

do not mention NuVenture.
5

state-law claims, and dismissed the Bank’s counterclaims without prejudice under the 

Colorado River doctrine.

3

 Ms. Mitchell appeals.

II. Discussion

A. Standard of review

We review de novo the district court’s dismissal of a complaint under 

Rule 12(b)(6). Albers v. Bd. of Cty. Comm’rs, 771 F.3d 697, 700 (10th Cir. 2014). 

“To survive a motion to dismiss, a plaintiff must plead facts sufficient to state a claim 

to relief that is plausible on its face.” Id. (internal quotation marks omitted). “[W]e 

must accept all the well-pleaded allegations of the complaint as true and must 

construe them in the light most favorable to the plaintiff.” Id. (internal quotation 

marks omitted).

B. § 1983 claims

In her two § 1983 claims, Ms. Mitchell alleged that the Bank violated her due 

process rights by persuading the Mitchell II court that the Mitchell I proceedings

(including the Utah Court of Appeals’ decision in that case) were final and therefore 

res judicata as to her counterclaims, which led to the adverse rulings in Mitchell II. 

To show the required element of state action, Ms. Mitchell argued that the Bank 

3 The Colorado River doctrine applies to “situations involving the 

contemporaneous exercise of concurrent jurisdictions . . . by state and federal 

courts.” Colo. River Water Conservation Dist. v. United States, 424 U.S. 800, 817 

(1976). The district court applied the Colorado River doctrine here because the Bank 

was litigating substantially the same issues (unlawful detainer, ejectment) in a 

parallel case it had filed in Utah state court after the sheriff’s sale, which the state 

court stayed pending resolution of Ms. Mitchell’s claims in this action. The district 

court’s Colorado River ruling is not at issue in this appeal.
6

acted jointly with the Mitchell II judge. See Wittner v. Banner Health, 720 F.3d 770, 

773 (10th Cir. 2013) (“A § 1983 claim requires a plaintiff to show both the existence 

of a federally-protected right and the deprivation of that right by a person acting 

under color of state law.”). The district court rejected that position because 

Ms. Mitchell had not alleged that any state officials conspired or acted jointly with 

the Bank in deciding to rule against her in Mitchell II, or that the Bank had an 

understanding or an agreed plan with the state judge. See id. at 777 (explaining that 

the joint-action test “ask[s] whether state officials and private parties have acted in 

concert in effecting a particular deprivation of constitutional rights” (internal 

quotation marks omitted)).

On appeal, Ms. Mitchell provides only a cursory argument regarding the 

district court’s ruling on her joint-action theory, which is also referred to as “joint 

participation,” see Barnard v. Young, 720 F.2d 1188, 1189 (10th Cir. 1983). First, 

she contends that the district court “ignored the concept of joint participation.” Aplt. 

Opening Br. at 16. This statement is patently incorrect; as just explained, the district 

court concluded that Ms. Mitchell had advanced no allegations supporting joint 

participation. Second, Ms. Mitchell provides two quotes from judicial decisions

concerning joint participation. The first is from Lugar v. Edmondson Oil Co., 

457 U.S. 922, 934 (1982):

If the creditor-plaintiff violates the debtor-defendant’s due process rights by 

seizing his property in accordance with statutory procedures, there is little 

or no reason to deny to the latter a cause of action under the federal statute, 

§ 1983, designed to provide judicial redress for just such constitutional 

violations.
7

The second quote is from a vacated district-court case quoting Lugar:

The Supreme Court has “consistently held that a private party’s joint 

participation with state officials in the seizure of disputed property is 

sufficient to characterize that party as a ‘state actor’ for purposes of the 

Fourteenth Amendment.”

Jordan v. Fox, Rothschild, O’Brien & Frankel, 787 F. Supp. 471, 475 (E.D. Pa. 

1992) (quoting Lugar, 457 U.S. at 941), vacated, 20 F.3d 1250 (3d Cir. 1994).

Reduced to its essence, Ms. Mitchell’s entire challenge to the district court’s 

rejection of her joint-participation theory consists of two quotations from Lugar

unaccompanied by any analysis relating those quotations to this case or explaining 

why she thinks the district court erred in its analysis.4

 Despite the case citations, we 

consider the issue waived based on the total lack of analysis. See Bronson v. 

Swensen, 500 F.3d 1099, 1104-05 (10th Cir. 2007) (explaining that “we routinely . . . 

decline[] to consider arguments . . . inadequately presented . . . in an appellant’s 

opening brief” and declining to review appellate arguments consisting of no more 

than “cursory statements, without supporting analysis and case law”); see also United 

4 Ms. Mitchell also makes the summary assertion that the district court erred 

by not discussing other ways a private actor can be deemed a state actor for § 1983 

purposes. See Aplt. Opening Br. at 2. But the district court found that she had 

exclusively relied on the joint-action test and “confine[d] its analysis” to the 

joint-action test. Aplt. App. at 64 (brackets and internal quotation marks omitted). 

Our review of her opposition to the Bank’s motion to dismiss confirms the district 

court’s finding. See Aplee. App., Vol. 3 at 614-15 (summarily discussing only 

“‘joint participation’”). And here, Ms. Mitchell does not discuss the matter further, 

address any other theories, or argue plain error. She has therefore waived appellate 

review of any other theories she may have had in mind. See Richison v. Ernest Grp., 

Inc., 634 F.3d 1123, 1131 (10th Cir. 2011) (“[T]he failure to argue for plain error and 

its application on appeal . . . surely marks the end of the road for an argument for 

reversal not first presented to the district court.”).
8

States v. Chavez, 976 F.3d 1178, ___, No. 17-8096, 2020 WL 5807864, at *19 n.18 

(10th Cir. Sept. 30, 2020) (suggesting that waiver applies where appellant fails to 

“meaningfully engage” with an issue by providing only “a few cursory sentences . . . 

accompanied by a single case citation” that generically recites the relevant standard).

Moreover, the Bank provides a cogent analysis explaining the inapplicability 

of Lugar (and, for that matter, Jordan, despite Ms. Mitchell’s complete failure to say 

anything relevant about Jordan). See Bank’s Resp. Br. at 19-23. Ms. Mitchell 

provides no counterargument in her reply brief; in fact, her reply brief does not 

address her § 1983 claims at all. Instead, she claims to have reserved an alleged 

“right to oral argument” on all issues, “including replying to each of [the Bank’s] 

arguments in its Response Brief.” Aplt. Reply Br. at 3. But there is no unqualified 

“right” to oral argument. See Fed. R. App. P. 34(a)(2) (explaining that a three-judge 

panel can dispense with oral argument if the panel “unanimously agrees that oral 

argument is unnecessary” for any of three enumerated reasons). If Ms. Mitchell 

wanted to respond to the Bank’s arguments, she should have done so in her reply. 

See Ross v. Univ. of Tulsa, 859 F.3d 1280, 1292 n.10 (10th Cir. 2017) (deeming an 

argument “waived because it was presented for the first time at oral argument”).

Nonetheless, we have reviewed the issue and agree with the Bank’s analysis. 

By its own terms, Lugar is limited to its factual context—cases involving 

prejudgment property deprivations. See Lugar, 457 U.S. at 939 n.21 (“The holding 

today . . . is limited to the particular context of prejudgment attachment.”). The 

Supreme Court has reaffirmed that Lugar is inapplicable beyond ex parte 
9

prejudgment proceedings. See Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 58 

(1999) (acknowledging that Lugar made clear that “its language must not be torn 

from the context out of which it arose” and therefore declining to extend Lugar

where defendants made “no effort” to seize the plaintiffs’ property “by an ex parte 

application to a state official”). Consistent with Lugar, the Jordan court concluded 

that “private attorneys, acting on their client’s behalf, who invoke the machinery of 

the state to effect an ex parte seizure of property can be found to be state actors under 

§ 1983.” 787 F. Supp. at 477.

5

 Such is not the case here. Ms. Mitchell’s 

due-process allegations concerned a judicial foreclosure suit that she litigated at 

length, not a prejudgment deprivation, ex parte or otherwise.

Furthermore, Lugar does not apply where a plaintiff asserts that a private actor 

abused a state process in an effort to seize disputed property. See Lugar, 457 U.S. 

at 942 (concluding that although joint participation occurs “when the State has

created a system whereby state officials will attach property on the ex parte

application of one party to a private dispute,” it does not occur when a plaintiff 

“allege[s] only misuse or abuse of the statute”). In this case, Ms. Mitchell alleged 

that the Bank abused the judicial-foreclosure process by making misrepresentations 

to the Mitchell II court about the finality of Mitchell I and urging the Mitchell II court 

5 Despite vacating Jordan on other grounds, the Third Circuit affirmed the 

district court’s ruling on this point. See Jordan v. Fox, Rothschild, O’Brien & 

Frankel, 20 F.3d 1250, 1267 (3d Cir. 1994).
10

to apply Mitchell I as res judicata against her counterclaims. That does not amount to 

joint participation under Lugar.

Ms. Mitchell neither addressed the limitations on Lugar’s applicability nor 

presented any argument for extending Lugar beyond those limitations. Her wholly 

inadequate briefing, coupled with the readily apparent inapplicability of the cases 

(Lugar and Jordan) she baldly relies on, leads us to the conclusion that the appeal of 

the district court’s dismissal of her § 1983 claims is frivolous. We therefore have no 

trouble affirming the district court’s dismissal of her § 1983 claims.6

C. FDCPA claim

Ms. Mitchell fares even worse with respect to the district court’s dismissal of 

her FDCPA claim. Although she lists an issue directed at one of the district court’s 

rationales for dismissing part of the claim, she provides no supporting argument. 

And what argument she does provide concerns a statute-of-limitations issue the 

district court decided in her favor and a ruling the district court expressly avoided 

making.

6 We note also that Ms. Mitchell did not provide any argument on the fourth 

issue listed in her statement of issues, which claims the district court “erred in 

dismissing the due process challenges which were not brought under Section 1983 

(i.e., as a claim for damages), but rather were seeking declaratory judgments that 

[Ms.] Mitchell’s due process rights had been violated, and were being violated, 

rendering the judicial foreclosure action null and void.” Aplt. Opening Br. at 2. By 

failing to provide any argument on this issue, Ms. Mitchell has waived it. See

Christian Heritage Acad. v. Okla. Secondary Sch. Activities Ass’n, 483 F.3d 1025, 

1031 (10th Cir. 2007) (“Where an appellant lists an issue, but does not support the 

issue with argument, the issue is waived on appeal.”).
11

In her complaint, Ms. Mitchell alleged that the Bank violated three FDCPA 

provisions: (1) 15 U.S.C. § 1692g(a)’s requirement that a debt collector must send a 

debt validation notice within five days of its initial communication about the debt; 

(2) § 1692e’s prohibition on false representations in debt collection, based on the 

Bank’s representations to the court in Mitchell II about the finality of Mitchell I; and 

(3) § 1692f(6)’s prohibition on unlawful means of repossessing a debtor’s property. 

The district court dismissed the claim based entirely on pleading failures in 

Ms. Mitchell’s complaint. After first rejecting the Lundberg Defendants’ argument 

that the § 1692g claim was barred by a statute of limitations, the district court 

dismissed the § 1692g claim because “Ms. Mitchell entirely fail[ed] to identify 

any document that constitutes an ‘initial communication’ under § 1692g(a),” Aplt. 

App. at 68. The court dismissed the § 1692(e) claim because Ms. Mitchell made only 

a conclusory allegation that the Bank “made knowing misrepresentations to the 

[state] Courts as to the status of Mitchell I regarding res judicata and finality in order 

to obtain the judicial sale.’” Id. at 70 (brackets in original) (quoting id. at 48, ¶ 213). 

And the court dismissed the § 1692(f)(6) claim because Ms. Mitchell had alleged that 

the foreclosure sale was a judicial foreclosure sale, but § 1692(f)(6) applies only to 

nonjudicial foreclosures. See id. at 71. The district court expressly declined to 

determine whether the Bank was a debt collector under the FDCPA. See id. at 66.

In her statement of issues, Ms. Mitchell claims the district court erred in its 

ruling that she had advanced only conclusory allegations in support of her claim that 

the Bank had made misrepresentations to the Mitchell II court. See Aplt. Opening Br. 
12

at 2. But she provides no argument on this point. See generally id. at 17-19. She has 

therefore waived review of the district court’s disposition of the § 1692(e) claim. See

Christian Heritage Acad. v. Okla. Secondary Sch. Activities Ass’n, 483 F.3d 1025, 

1031 (10th Cir. 2007). Instead, she argues she sufficiently alleged that the Bank was 

a debt collector within the meaning of the FDCPA, see Aplt. Opening Br. at 17-18, 

and that the § 1692g statute of limitations had not run, see id. at 18-19. As noted, the 

district court expressly avoided deciding whether the Bank was a debt collector, and 

it ruled in Ms. Mitchell’s favor on the limitations issue. Ms. Mitchell’s arguments 

regarding the dismissal of her FDCPA claim are frivolous because they are irrelevant 

to the district court’s ruling and inadequate to merit appellate review. We therefore 

affirm the dismissal of the FDCPA claim.

D. Procedural arguments 

In her statement of issues, Ms. Mitchell asserts that, in dismissing her claims 

against the Bank under Rule 12(b)(6), the district court committed several procedural

errors: (1) “employ[ing] an improper and heightened pleading standard,” Aplt. 

Opening Br. at 1; (2) disregarding facts alleged in her complaint while adopting the 

Bank’s statement of facts and the arguments and exhibits the Bank provided in 

support of its motion to dismiss; (3) “mischaracterizing factual allegations as 

conclusory statements,” id. at 2; and (4) “applying affirmative defenses to causes of 

action,” id. But in her argument, she merely recites at length the relevant pleading 

and dismissal standards then summarily contends, without analysis or citation to the 

record, that the district court “did not cite to a single fact stated in the Complaint,” 
13

“only repeated the Causes of Action,” and “referenced 37 facts and supporting 

documents stated in the Motions to Dismiss.” Id. at 16. Ms. Mitchell’s contentions 

are insufficient to garner appellate review, see Chavez, 976 F.3d at ___, 2020 WL 

5807864, at *19 n.18; Bronson, 500 F.3d at 1099, 1104-05, but they are also based on 

apparent misreadings or misinterpretations of the district court’s order.

First, the district court recited the same essential pleading standard that 

Ms. Mitchell sets forth in her opening brief, see Aplt. App. at 61, and as our analysis 

of the dismissal of Ms. Mitchell’s federal claims makes plain, the district court 

applied that standard. Ms. Mitchell develops no contrary argument.

Second, although the district court referred to documents the Bank appended to 

its motion to dismiss, which consisted of copies from the state court records and 

property records in Mitchell I, Mitchell II, and the related appeals, the court did not 

rely on facts from those documents in its legal analysis of the federal claims. 

Instead, it recited facts from those documents (as have we) only to provide context 

for Ms. Mitchell’s claims in this action. But even if it had relied (or did rely) on the 

state court records as a basis for dismissing the federal claims, that was entirely 

permissible. See, e.g., Porter v. Ford Motor Co., 917 F.3d 1246, 1248 n.2 (10th Cir. 

2019) (“A court may look to documents subject to judicial notice in deciding a 

motion to dismiss. And records from a related case may be judicially noticed.” 

(citation omitted)).

Third, Ms. Mitchell fails to identify which allegations she claims the district 

court mischaracterized as conclusory or which allegations she thinks the district court
14

should have referred to in its dismissal order. Based on our independent review of 

the district court’s decision, we conclude that the district court properly characterized 

Ms. Mitchell’s allegations on dispositive elements of her federal claims as either 

conclusory or wholly nonexistent and did not overlook any material factual 

allegations in the complaint.

Fourth, Ms. Mitchell fails to identify any affirmative defenses the district court 

applied, and in fact the court relied on none.7

In sum, Ms. Mitchell’s facially deficient argument regarding the district 

court’s alleged procedural errors is frivolous.

E. Reply brief argument

In her reply brief, Ms. Mitchell does not reply to any of the Bank’s arguments. 

She instead informs us that since the Bank filed its response brief, the Utah Court of 

Appeals has concluded that Mitchell II is not final (because the state district court 

had not disposed of Ms. Mitchell’s third-party claims) and therefore remanded the 

case to the state district court.8

 She contends that in light of this ruling, and based on 

7 In the conclusion of her opening brief, Ms. Mitchell states that she “has 

sufficiently alleged that Defendants Hall, Cooley and Rampton stepped outside their 

prosecutorial roles by being actively involved in the investigation and in speaking to 

the media” and that she “has also alleged harm.” Aplt. Opening Br. at 19-20. 

Because none of the defendants in this case are named Hall, Cooley, or Rampton, this 

statement apparently refers to some other case her appellate counsel may have been 

involved with.

8 The Bank has provided this same information in a letter filed pursuant to 

Federal Rule of Appellate Procedure 28(j).
15

allegations in her complaint that Mitchell II is not final, we should “rule on the issues 

of the Utah Federal District Court’s decision on [her] quit claim [sic], wrongful 

foreclosure and due process state law claims.” Aplt. Reply Br. at 4. However, the 

only decision the federal district court made about these state-law claims was to 

decline to exercise supplemental jurisdiction over them, and Ms. Mitchell provides 

no argument that the court erred in doing so. Furthermore, the district court’s 

dismissal of Ms. Mitchell’s federal claims did not turn on whether Mitchell II was 

final. Ms. Mitchell’s request for a ruling on these state-law claims is therefore 

frivolous.

III. Motion for sanctions

The Bank has filed a motion under Federal Rule of Appellate Procedure 38 and 

10th Circuit Rule 46.5 seeking monetary sanctions against both Ms. Mitchell and her 

current appellate attorney, Mark Shurtleff. Mr. Shurtleff began representing 

Ms. Mitchell after her initial appellate counsel withdrew but before briefing began.9

 

The Bank asserts that the appeal is frivolous and brought for an improper purpose, 

that is, “not to obtain adjudication on the merits but to delay [the Bank’s] state-court 

eviction suit” against Ms. Mitchell. Mot. at 2. In support of those assertions, the 

Bank points to (1) the “frivolous position” Mr. Shurtleff presented in his “cursory 

briefing,” id.; (2) the “endless extension requests” both he and prior counsel sought 

9 The Bank states that it does not seek sanctions against Ms. Mitchell’s initial 

appellate counsel because after withdrawing from this appeal, he received a discharge 

in a Chapter 7 bankruptcy proceeding.
16

in this appeal, id.; (3) the fact that this action was Ms. Mitchell’s third attempt to 

litigate the same fundamental issues, often asserting identical causes of action “in 

nearly identical language,” id. at 3; and (4) the fact that in Mitchell I and Mitchell II, 

she similarly sought (through initial appellate counsel, who also represented her in 

those cases) many extensions of time and engaged in other delay tactics, such as 

filing multiple motions for reconsideration, arguing that judgments were not final, 

and moving to dismiss her appeal of Mitchell I for lack of jurisdiction. The Bank 

asks us to remand this case to the district court to determine the appropriate size of 

the monetary award, including reasonable attorney’s fees.

We agree with the Bank, but only as to some of Mr. Shurtleff’s actions in this 

appeal. We therefore grant the motion and impose sanctions against him (but not 

against Ms. Mitchell) under Rule 38.

10

Rule 38 provides that “[i]f a court of appeals determines that an appeal is 

frivolous, it may, after a separately filed motion or notice from the court and 

reasonable opportunity to respond, award just damages and single or double costs to 

the appellee.” Rule 38’s phrase “just damages” includes “attorney’s fees.” Braley v. 

Campbell, 832 F.2d 1504, 1510 (10th Cir. 1987) (en banc).

Before we may impose sanctions under Rule 38, we must afford the relevant 

party “notice and opportunity to be heard.” Id. at 1513. As relevant here, where “a 

party has already made a motion . . . that sanctions be imposed, and identified the 

10 Rule 38 provides a sufficient basis for our sanction award, so we need not 

consider sanctions under 10th Cir. R. 46.5(C).
17

party or counsel it wants to be sanctioned, the notice requirements are satisfied, so 

long as the court gives the person against whom sanctions are requested an 

opportunity to file a brief or otherwise be heard before imposing sanctions.” 

Id. at 1515. The Bank filed its motion on June 2, 2020, five months ago. Yet despite 

more than an adequate opportunity to respond to the motion, neither Ms. Mitchell nor 

Mr. Shurtleff has done so. Accordingly, Rule 38’s due-process requirement has been 

met.

As for the scope of our sanctions award, we recognize that an appeal may be 

frivolous as filed or as argued. Finch v. Hughes Aircraft Co., 926 F.2d 1574, 

1578-79 (Fed. Cir. 1991); see Braley, 832 F.2d at 1513-14. An appeal is frivolous as 

filed when “the judgment by the tribunal below was so plainly correct and the legal 

authority contrary to appellant’s position so clear that there really is no appealable 

issue.” Finch, 926 F.2d at 1579. In a frivolous-as-argued appeal, “genuinely 

appealable issues may exist,” but “the appellant’s contentions in prosecuting the 

appeal are frivolous.” Id. 

We consider this appeal to be frivolous as Mr. Shurtleff argued it. A party 

may argue an appeal frivolously by “mak[ing] no attempt to address the elements 

requisite to obtaining reversal,” advancing “irrelevant arguments,” “failing to explain 

how the lower tribunal erred or to present clear or cogent arguments for overturning 

the decision below,” and “cit[ing] inapplicable or irrelevant authorities.” Id. In the 

appellate briefs he filed, Mr. Shurtleff has done all of these things. As a general 

matter, he presented no clear or cogent arguments that the district court erred either 
18

with respect to dismissing the claims or in the procedures it followed. More 

specifically, his challenge to dismissal of the due process claims was both cursory 

and based on inapplicable or irrelevant authorities regarding joint action. And he 

made only cursory and irrelevant arguments about the FDCPA claim and did not 

attempt to address the elements required to obtain reversal of that claim. As the Bank 

puts it, parts of his briefs “read[] as though [their] author simply has not read the 

order he is appealing.” Mot. at 9.

We do not consider this appeal frivolous as filed, and therefore we decline to 

impose sanctions against Ms. Mitchell.11 As the Bank notes, the underlying suit was 

Ms. Mitchell’s third attempt to contest the Bank’s right to foreclose on her home. In 

those attempts, she often asserted identical causes of action, and through prior 

counsel she sought many extensions of time to file papers with the courts, including 

this court. But this appeal arose from the district court’s dismissal of federal claims 

she had not attempted to litigate before. And although Mr. Shurtleff waived review 

of some of those claims and otherwise presented only frivolous arguments, we 

decline to say the appeal was brought solely as a delay tactic or, at least at the time of 

filing, that “there really [was] no appealable issue,” Finch, 926 F.2d at 1579. Nor do 

we think the Bank has shown, in either its motion or its oppositions to two of the 

requests for extensions of time to file briefs that Mr. Shurtleff filed (which he largely 

11 Because Ms. Mitchell filed this appeal through her initial appellate counsel, 

Mr. Shurtleff could not be responsible for filing a frivolous appeal.
19

based on serious health issues) were an attempt to unnecessarily delay resolution of 

this appeal.

Consequently, we conclude that Rule 38 sanctions are warranted solely against 

Mr. Shurtleff, because the frivolousness of this appeal stems from his actions alone. 

Our “duty . . . is to impose sanctions and compensating awards of expenses, 

including attorney’s fees, in a manner designed to solve the [judicial] management 

problem. If the fault lies with the attorneys, that is where the impact of the action 

should be lodged.” Braley, 832 F.2d at 1511 (internal quotation marks omitted). 

Applying this test, we conclude that, under Rule 38, the Bank is entitled reasonable 

attorney’s fees and double the costs it incurred in filing its response brief and the 

motion for sanctions.

12

We also conclude that, under Rule 38, the Bank is entitled to double the costs 

(but not any attorney’s fees) it incurred in filing a supplemental appendix. The 

appendix Mr. Shurtleff filed included only the district court’s docket entries, 

Ms. Mitchell’s complaint, and the district court’s memorandum decision granting the 

motions to dismiss. As we explain, that was wholly inadequate under our local rules.

“An appellant represented by retained counsel must electronically file an 

appendix sufficient for considering and deciding the issues on appeal.” 10th Cir. 

12 Although Rule 39(a) sets out rules on the taxation of appellate costs, 

those rules do not apply if “the law provides or the court orders otherwise,” 

Fed. R. App. P. 39(a). By authorizing this court to award an appellee “single or 

double costs,” Fed. R. App. P. 38, Rule 38 “provides . . . otherwise.” Our decision 

today also “provides . . . otherwise.”
20

R. 30.1(B)(1); see also Lincoln v. BNSF Ry. Co., 900 F.3d 1166, 1189 (10th Cir. 

2018) (“The duty to file an appendix that complies with the requirements set out by 

the Federal Rules of Appellate Procedure and our Local Rules falls squarely on the 

appellant.”). The requirements for an appellant’s appendix are the same as those set 

out in 10th Cir. R. 10.4 “for the contents of a record on appeal.” 10th Cir. 

R. 30.1(B)(1). Mr. Shurtleff failed to include two documents Rule 10.4 requires in 

all cases: the answer to the operative complaint and the notice of appeal. See

10th Cir. R. 10.4(C)(2), (C)(7). More importantly, because this “appeal is from an 

order disposing of a motion,” namely, the Bank’s motion to dismiss, Mr. Shurtleff 

was required to also include in the appendix “the [Bank’s] motion [to dismiss], 

relevant portions of affidavits, depositions and other supporting documents 

(including any supporting briefs, memoranda, and points of authority), filed in 

connection with that motion,” and “any responses and replies filed in connection with 

that motion.” 10th Cir. R. 10.4(D)(2). He failed to do so. The Bank is therefore 

entitled to recover its costs related to its supplemental appendix, which included all 

of the filings Mr. Shurtleff omitted. See Lincoln, 900 F.3d at 1191 (permitting an 

appellee “to recover all of its appellate costs, including costs related to the 

supplemental appendix” it filed, because the appellant’s appendix failed to comply 

with rules governing the appendix).
21

IV. Conclusion

The district court’s judgment and amended judgment are affirmed.13 We grant 

the Bank’s motion for sanctions against Mr. Shurtleff and award the Bank attorney’s 

fees and double costs pursuant to Rule 38, subject to the limitations set out above. 

We deny the Bank’s motion for sanctions against Ms. Mitchell. We remand to the 

district court for the limited purpose of determining the amount of the monetary 

award.

Entered for the Court

Jerome A. Holmes

Circuit Judge

13 In its amended judgment, the district court merely clarified that dismissal of 

the Bank’s counterclaim against Ms. Mitchell was without prejudice.