* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

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

### AUG 3 1998 

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

STEVEN CARLO BASOLO,

Plaintiff-CounterDefendant-Appellant,

v. JAMES K. LUBING,

Defendant-CounterClaimant-Appellee. No. 97-8109 (D.C. No. 96-CV-1030-J) (D. Wyo.)

ORDER AND JUDGMENT *

Before KELLY , BARRETT , and HENRY , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The c ase is therefore ordered submitted without oral argument.1 Because plaintiff’s notice of appeal was filed more than thirty days after

judgment was entered, and no tolling motion was fil ed, we lack jurisdiction to review the underlying summary judgment. We have ju risdiction, however, to review the district court’s denial of plaintiff’s m otion for reconsideration, filed pursuant to Fed. R. Civ. P. 60(b). -2- Plaintiff appeals the district court’s denial of hi s motion for reconsideration of the summary judgment granted in favor of defendant on plaintiff’s legal malpractice claim. 1 We affirm. Defendant represented plaintiff in a divorce procee ding between August 1993 and June 1994. In June 1996, plaintiff brought this diversity malpractice action, alleging that defendant’s inadequate repres entation resulted in an unfavorable custody arrangement and property divisi on. Defendant moved for summary judgment, attaching an affidavit by opposing counsel in the divorce proceeding, who opi ned that defendant did a “very adequate job in handling the case” and that t here was no basis to conclude he violated the professional standard of care. See R. I, doc. 10, ex. A at 4. Plaintiff responded with several documents, attachi ng his own affidavit which contained allegations of attorney incompetence, an affidavit which purportedly cast doubt on opposing counsel’s veracity, and seve ral pages of hearing transcript. He did not, however, submit any expert evidence setting out the applicable standard of care or refuting the opinion that defen dant performed competently. On August 22, 1997, the district court granted defe ndant’s summary judgment-3-

motion, finding plaintiff failed to establish a gen uine issue of fact regarding his former attorney’s deviation from the applicable standard of care. Plaintiff filed a motion for reconsideration which was denied, and th is appeal followed. We review the denial of a Rule 60(b) motion for an abuse of discretion.
See White v. American Airlines, Inc. , 915 F.2d 1414, 1425 (1990). Summary judgment is proper when “the pleadings, depositions , answers to interrogatories, and admissions on file, together with the affidavit s, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c ). When a moving party makes a properly supported summary judgment motion, the n onmoving party has the burden of showing a genuine issue for trial, “by any of the kinds of evidentiary materials listed in Rule 56(c), except the mere ple adings themselves.” Celotex Corp. v. Catrett , 477 U.S. 317, 324 (1986). Here, in responding to defendant’s properly support ed summary judgment motion, plaintiff failed to submit evidence showing the applicable standard of care or a breach of that standard. He presented no expert testimony about the care a reasonably prudent attorney would exercise under similar circumstances, as is required in most professional negligence cases unde r Wyoming law. See Peterson v. Scorsine , 898 P.2d 382, 388-89 (Wyo. 1995); Moore v. Lubnau , 855 P.2d 1245, 1249 (Wyo. 1993). Further, given the tactical natu re of the alleged errors, this-4-

was not a case in which a layperson’s background an d common sense could establish the applicable standard of care. See Peterson , 898 P.2d at 383, 388-89 (implicitly rejecting plaintiff’s argument that err ors in divorce proceeding fell within a layperson’s common sense and experience); see generallyMoore , 855 P.2d at 1250-51 (describing tactical considerations in divorce proceeding). The transcript excerpts attached to plaintiff’s motion for judgment also were insufficient, as there was no evidence the decision to work out a property division after the hearing violated the applicable standard of care. Therefore, plaintiff failed to demonstrate a genuine issue of material f act under Rule 56. Although plaintiff’s pro se pleadings are to be con strued liberally, his pro se status does not excuse his obligation to comply with the rules of procedure.
See Ogden v. San Juan County , 32 F.3d 452, 455 (10th Cir. 1994). Further, because the case was not legally submissible to a j ury, plaintiff’s Seventh Amendment rights were not violated. See Fidelity & Deposit Co. v. United States ex rel. Smoot , 187 U.S. 315, 320 (1902); City of Chanute v. Will iams Nat. Gas
Co. , 955 F.2d 641, 657 (10th Cir. 1992), overruled on other grounds by Systemcare, Inc. v. Wang Labs. Corp , 117 F.3d 1137 (10th Cir. 1997). Finally, the district court’s September 12, 1997 de adline for designating expert witnesses did not affect plaintiff’s duty to demonstrate a factual dispute regarding the standard of care. If plaintiff felt unable to respond to the summary2 We do not address plaintiff’s argument that defendant violated Local Rule

78(b)(2)(D) (now codified at Local Rule 7.1(b)(2)(A )), as plaintiff did not raise this issue to the district court in his motion for reconsideration. See Sac & Fox Nation v. Hanson , 47 F.3d 1061, 1063 (10th Cir. 1995).

-5- judgment motion before the disclosure date, he shou ld have submitted an affidavit under Federal Rule of Civil Procedure 56(f), settin g out his reasons for not presenting his opposition. The district court thencould have denied the motion or ordered a continuance. Based on the foregoing, we conclude the district court did not abuse its discretion in denying plaintiff’s motion for reconsideration. 2 The judgment of the United States District Court fo r the District of Wyoming is AFFIRMED. All outstanding motions are d enied. The mandate shall issue forthwith.

Entered for the Court

Paul J. Kelly, Jr. Circuit Judge