UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

 

DAVE SHELDON; 

DARREN K. KEARNS, 

 Plaintiffs-Appellants, 

v. 

TARA KHANAL; ABU B. ATHAR; 

DAVID J. MELO, Esq., individually and 

as a firm; NETWORK MORTGAGE, 

INC.; SHAMS UDDIN, a/k/a Mohammed 

Shams Uddin, individually; WINZONE 

REALTY, INC.; JULIE S.C. WONG, 

individually; SWEENEY, GALLO, 

REICH & BOLZ, LLP; ROSEMARIE A. 

KLIE, Esq., individually; SAND 

CANYON CORPORATION, f/k/a 

Option One Mortgage Corporation; 

OPTION ONE MORTGAGE 

CORPORATION, 

 Defendants-Appellees. 

No. 10-3237 

(D.C. No. 2:10-CV-02412-CM-GLR) 

(D. Kan.)

 

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 

October 10, 2012

Elisabeth A. Shumaker 

Clerk of Court
- 2 - 

Before MURPHY, HARTZ, and GORSUCH, Circuit Judges. 

 

 This is the third lawsuit spawned by the aborted sale of a house in New York 

owned by plaintiffs Dave Sheldon and Darren Kearns1

 (Sellers). Sellers sued Tara 

Khanal, the potential buyer; her husband, Abu B. Athar; her attorney, David J. Melo, 

Esq.;2

 the real estate agents, Julie S.C. Wong and Winzone Realty, Inc. (Wong); 

mortgage company Network Mortgage Inc. and its broker, Shams Uddin (Uddin); 

mortgage lender Option One Mortgage Corp.;3

 and the attorneys who represented 

Khanal in subsequent New York state court proceedings, Rosemarie Klie, Esq. and 

the firm of Sweeney, Gallo, Reich & Bolz, L.L.P. (Klie). The district court 

dismissed on res judicata grounds all of Sellers’ claims, except their contract claim 

against Melo, which the court dismissed without prejudice because the same claim 

was then pending in another federal court. On appeal Sellers contend that the district 

court erred in denying their motion to remand the case to Kansas state court, from 

whence it was removed, and in dismissing their claims based on res judicata. We 

affirm the district court’s judgment in all respects except the merits dismissal of 

 

1

 Kearns, who is a licensed attorney, has filed the briefs on appeal both as counsel 

for Sheldon and as a pro se party. “While we ordinarily construe pro se pleadings 

liberally, the same courtesy need not be extended to licensed attorneys.” Mann v. 

Boatright, 477 F.3d 1140, 1148 n. 4 (10th Cir. 2007) (citation omitted). 

2

 Sellers sued Melo both “personally and individually” and “as a firm.” Aplt. App. 

at 110. Except where noted, our references to “Melo” include both capacities. 

3

 Option One has since changed its name to Sand Canyon Corp., but we will 

continue to refer to it by its previous name. 
- 3 - 

Sellers’ contract claim against Khanal. That portion of the judgment is reversed and 

remanded with instructions to the district court to modify the judgment to reflect that 

this claim is dismissed for lack of subject-matter jurisdiction. 

I. Procedural History 

In February 2007, following her cancellation of the real estate contract with 

Sellers, Khanal sued Sellers in New York state court (Sheldon I) to recover, among 

other things, the return of her $50,000 down payment. Khanal was unable to secure 

service on Kearns, but in September 2007 she obtained a judgment against Sheldon. 

See Khanal v. Sheldon, No. 2958/07, 2007 WL 2850994, at *2 (N.Y. Sup. Ct. Sept. 

19, 2007). The court held that the contract provided that the down payment would be 

returned to Khanal if she could not get a written mortgage commitment, and because 

she had produced a written denial from a mortgage lender (Option One), she was 

entitled to a return of the down payment. See id. Sheldon filed a motion to vacate 

the decision, and when it was denied, he appealed. 

 Meanwhile, in March 2007, Sellers filed a diversity complaint in federal court 

in Kansas4

 (Sheldon II) naming everyone who is a defendant in this case.5 Sellers 

asserted 14 claims for relief, including breach of contract, fraud, and other tortious 

conduct. In August 2008, while motions to dismiss Sellers’ complaint were pending, 

 

4

 Sheldon is a resident of Kansas and Kearns, who is a resident of Missouri, 

maintains an office in Kansas. 

5

 Sellers also sued several other parties, not involved in the present action, on claims 

arising out of Sellers’ purchase of the property at a sheriff’s sale. 
- 4 - 

the court transferred the case to the United States District Court for the Eastern 

District of New York (the Eastern District). Following a conference in the Eastern 

District, all the pending motions to dismiss were withdrawn without prejudice, 

discovery was stayed, and the court set a schedule for defendants’ responsive 

pleadings. Melo, Uddin, Wong, Klie, and Option One filed new motions to dismiss, 

and Khanal filed an answer. Thereafter the Eastern District entered an order 

reiterating that discovery was stayed as to all parties until the motions to dismiss 

were resolved. 

On September 30, 2009, the Eastern District entered a lengthy order 

dismissing each of Sellers’ claims. See Sheldon v. Khanal, No. 08-cv-3676, 2009 

WL 3233093 (E.D.N.Y. Sept. 30, 2009). The court dismissed Sellers’ contract claim 

against Melo under Fed. R. Civ. P. 12(b)(1) for lack of subject-matter jurisdiction, 

because there was not a sufficient amount in controversy. See id. at *6. It dismissed 

the remaining claims against Melo and all the claims against the other defendants 

under Rule 12(b)(6) for failure to state a claim for relief. See id. at *8-16. Although 

the court recognized that neither Athar nor Khanal had filed a motion to dismiss, it 

concluded that Sellers’ claims against them should still be dismissed for failure to 

state a claim. See id. at *8 (Athar), *19 (Khanal). Relying on the New York state 

court’s judgment in favor of Khanal in Sheldon I, the court alternatively dismissed 

Sellers’ claims against Melo, Uddin, and Klie because they were barred by collateral 

estoppel and it alternatively dismissed Sellers’ claims against Khanal because they 
- 5 - 

were barred by res judicata. See id. at *18-19. Sellers appealed the Eastern District’s 

decision to the Second Circuit. 

 On June 8, 2010, while Sellers’ appeal was pending before the Second Circuit, 

a New York state appellate court reversed the judgment against Sheldon in Sheldon I

and remanded the matter for further proceedings. See Khanal v. Sheldon, 74 A.D.3d 

894, 894-96 (N.Y. App. Div. 2010). The court held that Sheldon had provided a 

reasonable excuse for his failure to respond to Khanal’s summary-judgment motion 

and had advanced a “potentially meritorious defense” to her claims. Id. at 896. 

 Rather than await the outcome of their appeal to the Second Circuit or of the 

remanded proceedings in New York state court, Sellers filed the current action 

(Sheldon III) on June 24, 2010, in Kansas state court. They alleged 14 claims for 

relief similar to those alleged in Sheldon II. On July 22 Option One filed a notice of 

removal to the United States District Court for the District of Kansas (the Kansas 

District Court), and all the defendants except Athar either joined in or consented to 

the removal. On July 27 Sellers filed a motion to remand, contending the removal 

was improper, and Option One filed in the Kansas District Court a motion to dismiss, 

arguing that Sellers’ claims were barred by both res judicata and the statute of 

limitations. Several weeks later, Sellers filed in the Kansas District Court a motion 

to amend their complaint. 

On September 3, 2010, the Kansas District Court (1) denied Sellers’ motion 

for remand; (2) set aside the Clerk’s default entered against Khanal, Melo, and Klie; 
- 6 - 

(3) granted Option One’s motion to dismiss on the basis of res judicata; (4) sua 

sponte dismissed Sellers’ claims against all the other defendants; and (5) denied as 

moot Sellers’ motion to amend the complaint. Sellers have appealed, challenging 

both the denial of their motion to remand and the dismissal of their claims on res 

judicata grounds. 

III. Denial of the Motion to Remand 

 “This court has jurisdiction over a denial of a motion to remand to state court 

when coupled with the appeal of a final judgment.” Huffman v. Saul Holdings Ltd. 

P’ship, 194 F.3d 1072, 1076 (10th Cir. 1999) (internal quotation marks omitted). 

“[W]e review a district court’s determination of the propriety of removal de novo.” 

Id. “[T]here are two types of improperly removed cases: those in which the federal 

court has no subject matter jurisdiction and those with defects in the removal 

procedure itself.” Id. “A defect in subject matter jurisdiction can never be waived[;] 

. . . [a] procedural defect, however, does not involve the subject matter jurisdiction 

of the court and may be waived.” Id. at 1076-77. In their motion to remand, Sellers 

contended there were both jurisdictional and procedural defects in the removal. 

A. Alleged Jurisdictional Defect 

 Sellers argued that the Kansas District Court lacked subject-matter jurisdiction 

over the removed action because the Eastern District had ruled in Sheldon II that 

Sellers’ contract claim against Melo did not meet the required amount in controversy 

and hence there was no federal diversity jurisdiction over the claim. Sellers argued 
- 7 - 

that if the Kansas District Court lacked jurisdiction over the claim against Melo, the 

case could not be removed to federal court. Sellers reurge this argument on appeal. 

To be sure, jurisdictional rulings can have preclusive effect, in that “dismissals 

for lack of jurisdiction preclude relitigation of the issues determined in ruling on the 

jurisdiction question.” Park Lane Res. L.L.C. v. U.S. Dep’t of Agric., 378 F.3d 1132, 

1136 (10th Cir. 2004) (internal quotation marks omitted). But even if the Kansas 

District Court lacked jurisdiction over the contract claim against Melo,6

 the other 

claims could still be removed. The removal statute authorizes the removal from state 

court of “any civil action . . . of which the district courts of the United States have 

original jurisdiction.” 28 U.S.C. § 1441(a). “[A] district court has original 

jurisdiction of a civil action for purposes of § 1441(a) as long as it has original 

jurisdiction over a subset of the claims constituting the action.” Exxon Mobile Corp. 

v. Allapattah Services, Inc., 545 U.S. 546, 563 (2005). Thus, even if there are claims 

in the action over which the Kansas District Court lacks original jurisdiction because 

they fall short of the required amount in controversy, the entire action can be 

removed to federal court under §1441(a) so long as the Kansas District Court has 

 

6

 Perhaps the Eastern District’s ruling that Sellers’ contract claim against Melo did 

not meet the required amount in controversy would have precluded relitigation of that 

issue in Sheldon III at the time it was removed to federal court. But the preclusive 

effect of the Eastern District’s jurisdictional ruling was lost when the Second Circuit 

resolved the appeal from the Eastern District’s judgment without affirming that 

ruling. See Sheldon v. Khanal, 396 F. App’x 737, 739-40 (2d Cir. 2010); 18A 

Charles Alan Wright, et al., Federal Practice & Procedure § 4432, at 63-64 & n.24 

(2d ed.). 
- 8 - 

original jurisdiction over one claim. That the court may not have original jurisdiction 

over all the claims “is of no moment.” Id. at 559. There may be a question whether 

the federal court can exercise supplemental jurisdiction over the other claims; but 

Sellers do not raise such a challenge. 

B. Alleged Procedural Defects 

 Sellers also challenged the propriety of the removal on two procedural 

grounds. First, they argued that removal was improper because Athar did not consent 

to the removal. If a case is removed based solely on federal diversity jurisdiction, 

“all defendants who have been properly joined and served must join in or consent to 

the removal of the action.” 28 U.S.C. § 1446(b)(2)(A) (emphasis added). Option 

One argued that Athar’s consent was not necessary because Athar was only a nominal 

party, he had not been served at the time the case was removed, and, in any event, 

Option One had been informed that he was dead. The Kansas District Court 

concluded that Athar’s consent to removal was not necessary because he had not 

been served at the time Option One filed its notice of removal. On appeal Sellers 

argue that Athar was not simply a nominal party and that the Kansas District Court 

should have remanded the case to state court because he did not join in the removal. 

We reject the argument as contrary to the clear statutory language requiring only 

served defendants to consent to removal. 

 Sellers also challenged the removal on the ground that Option One failed to 

include with its notice of removal the required copies of all the summonses served on 
- 9 - 

defendants. A defendant who wishes to remove a case from state to federal court 

must, within 30 days after receipt of the complaint, file a notice of removal in federal 

court “together with a copy of all process, pleadings, and orders served upon such 

defendant . . . in such action.” 28 U.S.C. § 1446(a), (b). Option One was served 

with the complaint on June 28 and filed its notice of removal on July 22. It failed to 

include copies of the summonses with its notice of removal.7

But immediately after Sellers raised the defect in their motion to remand on 

July 27, Option One filed in the Kansas District Court copies of all the state-court 

pleadings, including the summonses. In its response to Sellers’ motion to remand, 

Option One argued that its July 27 filing cured the original defect. Sellers’ reply did 

not address the sufficiency of Option One’s attempt to cure the defect; it simply 

reiterated their argument that the failure to include the summonses with the notice of 

removal necessitated a remand. The Kansas District Court concluded that no remand 

was warranted because Option One had filed all the necessary state-court pleadings, 

including the summonses that Sellers contended were missing. 

 Sellers renew on appeal their argument that the omission of the summonses in 

the notice of removal required a remand. We reject the argument. A removing 

defendant’s failure to attach to its notice of removal the required state-court 

documents--in particular, a summons--is a procedural defect that can be cured, either 

 

7

 Although the parties failed to include a copy of the notice of removal in their 

appendices, we may take judicial notice of it as well. 
- 10 - 

before or after the 30-day removal period. See Countryman v. Farmers Ins. Exchg., 

639 F.3d 1270, 1273 (10th Cir. 2011) (per curiam). 

For the first time on appeal, Sellers argue that Option One’s cure was 

insufficient to avoid a remand and that Melo did not properly join in the removal 

petition. We need not address these belated arguments. Nonjurisdictional defects 

must be raised within 30 days after the filing of the notice of removal or they are 

waived. See 28 U.S.C § 1447(c); Huffman, 194 F.3d at 1077; 14C Charles Alan 

Wright, et al., Federal Practice & Procedure § 3739 (4th ed.) (“After the expiration 

of the 30-day period following the filing of the removal notice, the right to object to 

nonjurisdictional defects in the removal process is considered waived.”) (collecting 

cases). Moreover, there are no unusual circumstances here that would lead us to 

depart from our general rule that we will not consider an argument that was not 

raised in the district court. See United States v. Jarvis, 499 F.3d 1196, 1202 

(10th Cir. 2007) (this court will consider an argument not raised in district court only 

in “the most unusual circumstances” (internal quotation marks omitted)). 

III. Dismissal of Claims on Res Judicata Grounds 

We review de novo the district court’s conclusions of law on the applicability 

of res judicata. Nwosun v. Gen. Mills Restaurants, Inc., 124 F.3d 1255, 1257 

(10th Cir. 1997). “[F]ederal common law governs the claim-preclusive effect of a 

dismissal by a federal court sitting in diversity.” Semtek Int’l Inc. v. Lockheed 

Martin Corp., 531 U.S. 497, 508 (2001). Under federal law the preclusive effect of a 
- 11 - 

federal diversity court’s judgment usually should be determined by applying “the law 

that would be applied by the state courts in the State in which the federal diversity 

court sits.” Id. In this case, that is the law of New York, where the Eastern District 

sits. 

“In New York, res judicata, or claim preclusion, bars successive litigation 

based upon the same transaction or series of connected transactions if: (i) there is a 

judgment on the merits rendered by a court of competent jurisdiction, and (ii) the 

party against whom the doctrine is invoked was a party to the previous action, or in 

privity with a party who was.” People ex rel. Spitzer v. Applied Card Sys., Inc., 

894 N.E.2d 1, 12 (N.Y. 2008) (citations omitted) (internal quotation marks omitted)). 

 Sellers made several arguments in the Kansas District Court why res judicata 

should not bar their claims, and they repeat those arguments on appeal. First, Sellers 

argue that res judicata should not apply because, after the Eastern District issued its 

decision in Sheldon II, the New York state appellate court set aside Khanal’s 

judgment against Sheldon in Sheldon I. But in ruling that Sellers’ claims were barred 

by res judicata, the Kansas District Court did not rely on either the New York state 

trial court’s original ruling in Sheldon I or on the Eastern District’s alternate-ground 

dismissal in Sheldon II. Rather, the Kansas District Court relied on the Eastern 

District’s determination that Sellers failed to state any claims for relief, 8 which was 

 

8

 As mentioned earlier, the Eastern District did not dismiss the contract claim against 

Melo in Sheldon II on the ground that it failed to state a claim for relief, and the 

(continued) 
- 12 - 

not affected by the New York state court’s subsequent reversal of the original 

judgment in Sheldon I. 

We do note, however, that while the present appeal has been pending, the 

Second Circuit reversed the Eastern District’s dismissal of Sellers’ contract claim 

against Khanal and remanded that claim for further proceedings. Sheldon v. Khanal, 

396 F. App’x 737, 740 (2d Cir. 2010). Consequently, the res judicata effect of the 

Eastern District’s initial dismissal of that claim no longer exists. See, e.g., Sage 

Realty Corp. v. Proskauer Rose LLP, 251 A.D.2d 35, 39 (N.Y. App. Div. 1998) (once 

court’s decision is reversed, it has no preclusive effect). 

Ordinarily, this would lead us to reverse the Kansas District Court’s dismissal 

of the contract claim against Khanal and remand the matter to the Kansas District 

Court for further proceedings. But after the Second Circuit remanded the contract 

claim against Khanal to the Eastern District, the Eastern District concluded that the 

claim did not meet the required amount in controversy and dismissed it for lack of 

subject-matter jurisdiction. Sheldon v. Khanal, No. 08-cv-3676, 2011 WL 3876970, 

at *9-10 (E.D.N.Y. Aug. 31, 2011). Sellers did not appeal that decision. 

 

Kansas District Court did not dismiss the like claim in Sheldon III on res judicata 

grounds. Rather, the Kansas District Court dismissed the claim without prejudice on 

the ground that the Eastern District’s decision was then pending before the Second 

Circuit, which might conclude the Eastern District did have subject-matter 

jurisdiction over the claim and remand it for further proceedings. Sellers do not 

challenge the dismissal of their contract claim against Melo by the Kansas District 

Court. Our discussion is therefore limited solely to the dismissal of Sellers’ other 

claims on res judicata grounds. 
- 13 - 

Under the doctrine of collateral estoppel, a party may not relitigate a 

jurisdictional issue that was decided against it in prior proceedings. See DirecTV 

Latin Am., LLC v. Pratola, 94 A.D.3d 628, 628-29 (N.Y. App. Div.), leave to appeal 

denied, ___ N.E.2d ___, No. 2012-599, 2012 WL 4017464 (N.Y. Sept. 13, 2012); 

Keeler v. W. Mtn. Corp., 105 A.D.2d 953, 954-55 (N.Y. App. Div. 1984); see also 

Park Lane Res. L.L.C. v. U.S. Dep’t of Agric., 378 F.3d 1132, 1136 (10th Cir. 2004) 

(“[D]ismissals for lack of jurisdiction preclude relitigation of the issues determined 

in ruling on the jurisdictional question.” (internal quotation marks omitted)). 

Accordingly, if we were to reverse the Kansas District Court’s dismissal of the 

contract claim against Khanal and remand it to the Kansas District Court for further 

proceedings, the Kansas District Court would have to dismiss the claim for lack of 

jurisdiction. Rather than remand for further proceedings, we will simply remand 

with directions to the Kansas District Court to modify its judgment to reflect that the 

contract claim against Khanal is dismissed for lack of subject-matter jurisdiction. 

 Sellers also argue that the claims should not be barred by res judicata because 

the complaint they filed in Sheldon III “has substantive differences from the prior 

Amended Complaint that was dismissed” by the Eastern District. Aplt. Opening Br. 

at 21 22. Sellers do not, however, explain what the substantive differences are 
- 14 - 

between the two complaints9

 nor how those differences would avoid the bar of res 

judicata. Res judicata “applies not only to claims actually litigated but also to claims 

that could have been raised in the prior litigation.” In re Hunter, 827 N.E.2d 269, 

274 (N.Y. 2005). Our review of the complaint filed in this action does not reveal any 

new claims that Sellers could not have raised in Sheldon II. 

 In addition, Sellers argued in the Kansas District Court and now argue on 

appeal that res judicata should not apply because they were not given a full and fair 

opportunity to litigate their claims in the Eastern District. “The rationale underlying 

[the] principle [of res judicata] is that a party who has been given a full and fair 

opportunity to litigate a claim should not be allowed to do so again.” Id.; see also 

Kremer v. Chem. Constr. Corp., 456 U.S. 461, 480-81 & n.22 (1982) (res judicata 

does not apply if the party against whom it is asserted did not have a full and fair 

opportunity to litigate its claims in the earlier proceeding; the “[r]edetermination of 

issues is warranted if there is reason to doubt the quality, extensiveness, or fairness of 

procedures followed in prior litigation” (internal quotation marks omitted)). “[T]he 

question as to whether a party had a full and fair opportunity to litigate a prior 

determination, involves a practical inquiry into the realities of litigation.” Gilberg v. 

Barbieri, 423 N.E.2d 807, 809 (N.Y. 1981) (internal quotation marks omitted). 

 

9

 In the Kansas District Court, Sellers argued that the two complaints were different 

because the current complaint “has more specificity as to what actually transpired in 

the case.” Aplt. App. at 179. 
- 15 - 

 Sellers contend that they were denied a full and fair opportunity to litigate 

their claims in the Eastern District because they were denied discovery before the 

court ruled on the motions to dismiss. But discovery is not necessary to resolve a 

motion to dismiss for failure to state a claim for relief; “[t]he court’s function on a 

Rule 12(b)(6) motion is not to weigh potential evidence that the parties might present 

at trial, but to assess whether the plaintiff’s . . . complaint alone is legally sufficient 

to state a claim for which relief may be granted,” Peterson v. Grisham, 594 F.3d 723, 

727 (10th Cir. 2010) (internal quotation marks omitted). One purpose of requiring 

that a complaint state a plausible claim for relief is “to avoid ginning up the costly 

machinery associated with our civil discovery regime on the basis of a largely 

groundless claim.” Kan. Penn Gaming, LLC v. Collins, 656 F.3d 1210, 1215 

(10th Cir. 2011) (internal quotation marks omitted). 

 The Eastern District appropriately limited discovery to preserve judicial 

resources while the motions to dismiss were pending, and the Sellers have not shown 

that this limitation was unfair. If Sellers thought the Eastern District had abused its 

discretion by limiting discovery, the appropriate forum for them to challenge that 

limitation was in the Second Circuit. Sellers have not shown that they were denied 

the opportunity to litigate their claims fully and fairly in the Eastern District. 

IV. Other Requests for Relief 

 Sellers also argue on appeal that the evidence they obtained through discovery 

in Sheldon I following the remand from the New York state appellate court would 
- 16 - 

justify relief under Fed. R. Civ. P. 60(b). Sellers request that this court grant them 

Rule 60(b) relief and “allow plaintiffs to have a trial on the merits against all parties 

and all claims.” Aplt. Opening Br. at 25; see also id. at 26 (“[P]laintiffs request that 

the Court of Appeals separately employ Rule 60 to vacate any portion of the ruling 

that is based upon Res Judicata.”). The simple answer to this request is that the 

Federal Rules of Civil Procedure apply to the district courts, not to the courts of 

appeals. See Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 406 (1990); Fed. R. 

Civ. P. 1 (“These rules govern the procedure in all civil actions and proceedings in 

the United States district courts . . . .” (emphasis added)). 

 Finally, Sellers contend, in a single sentence of their opening brief, that 

“[s]everal of the defendants are in default and therefore the Clerk’s default should be 

reinstated against same.” Aplt. Opening Br. at 27. This statement, which does not 

advance any reasoned argument as grounds for appeal, is insufficient to invoke 

appellate review. See Reedy v. Werholtz, 660 F.3d 1270, 1274 (10th Cir. 2011).
- 17 - 

V. Conclusion 

 The judgment of the Kansas District Court is affirmed in part, reversed in part, 

and remanded with instructions to the Kansas District Court to modify its judgment 

to dismiss Sellers’ contract claim against defendant Tara Khanal for lack of 

subject-matter jurisdiction. 

 Entered for the Court 

 Harris L Hartz 

 Circuit Judge