UNITED STATES CO URT OF APPEALS FOR THE TENTH CIRCUIT

HOLLI LUNDAHL, a/k/a Holli Telford, Plaintiff - Appellant,

v. THE HOME DEPOT, INC.; CITIBANK, N.A., Defendants - Appellees. No. 14-8001 (D.C. No. 2:13-CV-00222-SWS) (D. Wyo.)

ORDER AND JUDGMENT *

Before McHUGH , McKAY , and O’BRIEN , Circuit Judges.
Plaintiff Holli Lundahl, proceeding pro se, 1 appeals from the district court’s order denying her motion for sanctions under Fed. R. Ci v. P. 11 against defendants

* After examining the briefs and appella te record, this pa nel has determined unanimously that oral argument would not mate rially assist the de termination 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 This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel. It may be cite d, however, for its persuasi ve value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
1 Ms. Lundahl is under filing re strictions, as described in Johnson v. Stock , No. 03-4219, 2005 WL 1349963, at *3-4 (10th Cir. June 8, 2005). This court granted her permission to proceed pro se in this case by order issued February 5, 2014. FILED United States Court of Appeals Tenth Circuit 

### December 3, 2014
Elisabeth A. Shumaker Clerk of Court- 2 - Home Depot, Inc., and Citibank N.A based on her assertion they wrongfully removed the case from state court. We have ju risdiction under 28 U.S.C. § 1291 and affirm. I. Background Ms. Lundahl filed a pro se lawsuit in Wyoming state court in July 2013, against Home Depot, Citibank (collectively, the “Defe ndants”), and three credit reporting agencies. She alleged she receive d an incorrect refund on her Home Depot credit card, which is issued by Citibank. She did not serve, and later voluntarily dismissed, the credit reporting agencies. The state court entered default judgment against the Defendants on Septem ber 23, 2013, after they fa iled to file an answer. On October 1, 2013, the Defendants removed th e suit to federal c ourt, asserting the district court’s original fe deral question jurisdiction. See 28 U.S.C. §§ 1331, 1441(a). The Defendants also sought to set aside the Wyoming default judgment under Fed. R. Civ. P. 60(b )(4), claiming they had not b een properly served in state

court. The Defendants asserted that Ms. Lunda hl’s complaint included two federal claims. First, her co mplaint alleged she had been asse ssed interest on her credit card “in violation of . . . the federal and stat e usury laws; thus c onstituting illegal loan sharking on Home Depot[’s] and Citibank’s behalf.” R. Vol. 1, at 17, Compl. ¶ 13. The Defendants noted that Citibank is a na tional bank and cited the Supreme Court’s “‘longstanding and consis tent construction of the Nati onal Bank Act as providing an exclusive federal cause of action fo r usury against national banks.’” Id . at 7, Notice- 3 - of Removal (quoting Beneficial Nat’l Bank v. Anderson , 539 U.S. 1, 10 (2003);

see 12 U.S.C. §§ 85-86 (interest rate and usury provisions re lating to national banks). Second, Ms. Lundahl’s complaint alleged sh e was entitled to co mpensatory damages because she had been subject ed to an increased mortga ge rate “as a result of defendants[’] willful viola tions of the Wyoming Consum er Protection Act and the [f]ederal [Fair] Credit Re porting Act, [15 U.S.C. §§ 1681-1681x (“FCRA”)].” R. Vol. 1, at 19, Compl. ¶ 20. Ms. Lundahl moved to remand the action to state court, arguing that the sole claim asserted against the Defendants wa s a violation of Wyoming law; that the FCRA claim was asserted only against the three credit reporting agencies, which she had dismissed; and that her complaint me ntioned usury under federal law only in passing. She also moved to strike the De fendants’ motion to set aside the default judgment and requested sanctions or cont empt damages in the amount of $20,000 under 28 U.S.C. § 1447(c) and Fed. R. Civ. P. 11 based on their wrongful removal of the case from state court. The district court held a hearing on th e parties’ motions. It stated it had “carefully reviewed and re-re viewed the complaint” a nd reviewed the law with respect to the FCRA. R. Do c. 32, (“Hr’g Tr.”), at 7. 2 The court concluded that,

2 The transcript of the November 22, 2013, hearing was filed in the district court on April 24, 2014, after the pr imary volumes of the record on appeal were filed. The transcript is also part of the record on appeal pursuant to 10th Cir. R. 11.2(A) (“In a (continued)- 4 - “while [it could] certainly see the basis that the defenda nts in this action sought removal, upon review and based upon the subsequent dismissa l of the consumer credit reporting agency defenda nts,” there was not a federa l question that was fairly presented. Id . at 7-8. 3 The district court noted that while paragraph 20 of Ms. Lundahl’s complaint broadly sought da mages against “defenda nts” for violation of the FCRA, paragraph 5 of the complain t, which discussed her FCRA claim in detail, was asserted only agains t the credit reporting agencies. Id . at 8. Thus, notwithstanding Ms. Lundahl’s broad use of the term “defendants” in paragraph 20, the district court concluded that, in the c ontext of paragraph 5, Ms. Lundahl’s FCRA claim was not asserted agains t Home Depot or Citibank. Id . As to the federal usury claim, the district court noted that Ms. Lundahl’s prayer fo r relief on the final page of her complaint did not actually claim a ny damages tied to usury interest. Id . at 8-9. The district court described its decisi on to remand as a “close call” because Ms. Lundahl’s complaint was dr afted in generalities and faile d to separate the claims for relief. Id . at 9.

pro se appeal . . . the distri ct court clerk must forward th e record to th e circuit clerk [which] must include any transcript that has been filed . . . .”).
3 The transcript of the November 22, 20 13 hearing was filed in the district court April 24, 2014, after the record on appeal wa s filed, but it is part of the record on appeal pursuant to 10th Cir. R. 11.2(A) (“[i]n a pro se appeal . . . the district court clerk must forward th e record to the circuit clerk [whi ch] must include any transcript that has been filed . . . .”).- 5 - “[B]ased upon the lack of specificity ” in Ms. Lundahl’s complaint and the court’s conclusion that the Defendants had a “good faith basis” to seek removal, the district court declined to impose any damages or sanc tions for filing a notice of removal, as Ms. Lundahl had requested. Id . The district court remanded the case to state court and ruled the De fendants’ Rule 60(b)(4) mo tion seeking to vacate the state’s default judgment was moot. II. Discussion Ms. Lundahl appeals the district cour t’s denial of sanc tions under Rule 11. 4 Under Rule 11, a signer of a pleading “cer tifies that to the be st of the person’s knowledge, information, and belief, form ed after an inquiry reasonable under the circumstances,” the pleading “is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increas e in the cost of litigation” and that “the claims, defens es, and other legal contentions are warranted by existing law or by a nonfrivolous argument for extendi ng, modifying, or reversing existing

4 Ms. Lundahl’s brief does not challenge the district court’ s dismissal of her request for costs and expenses incu rred as a result of the removal under 28 U.S.C. § 1447(c), though she makes a few passing references to § 1447(c). Awards under § 1447(c) are left to the district court’s wide discretion, and there is no presumption in favor of a § 1447(c) award wh en a case is remande d to state court. Martin v. Franklin Capital Corp ., 546 U.S. 132, 136-41 (2005) (noting that “awarding fees simply because the party di d not prevail could di scourage all but the most airtight claims, for se ldom can a party be sure of ultimate succes s”) (bracket and internal quotation marks omitted). “[W]hen an objectively reasonable basis exists [for seeking removal], fees should be denied.” Id . at 141. As a pro se litigant, we construe Ms. Lundahl’s br ief liberally; thus, to the ex tent that she preserved her § 1447(c) claim for appellate review, we find no abuse of the district court’s discretion in denying her request.- 6 - law or for establishing new law. ” Fed. R. Civ. P. 11(b). Th is certification standard is one of “[objective] reasonablen ess under the circumstances.” Bus. Guides, Inc. v. Chromatic Commc’ns Enters., Inc ., 498 U.S. 533, 551 (1991) (emphasis omitted). If a court determines that a party has violated Rule 11(b), it may, in its discretion, impose sanctions. Fed. R. Civ. P. 11(c) (“[T]he court may impose an appropriate sanction. . . .”) (emphasis adde d)). “This court reviews the district court’s refusal to impose Rule 11 sa nctions for abuse of discretion.” Brown v. Eppler , 725 F.3d 1221, 1228 n.3 (10th Cir. 20 13). Under this standard, reversal would be appropriate only if the district court “based its ruling on an erroneous view of the law or on a clearly erroneous assessment of the evidence.” Cooter & Gell v. Hartmarx Corp. , 496 U.S. 384, 405 (1990). Ms. Lundahl argues that: (1) Rule 11 sanctions were mandatory because the Defendants’ basis for removal was a sh am; (2) Rule 11 sanctions were proper because the Defendants’ action amounted to economic extortion; and (3) Rule 11 sanctions were mandatory b ecause removal of the stat e suit was barred by the Rooker-Feldman doctrine. 5 Contrary to the premise of her arguments, sanctions

5 Ms. Lundahl failed to raise this issue—that removal was improper because federal review of the state court’s default judgment was barred by the Rooker-Feldman doctrine—in the district court. Her argument is without merit in any event. “The Rooker –Feldman doctrine arose out of [ 28 U.S.C. § 1257(a)], and provides that only the Supreme Court has juri sdiction to hear appeals from final state court judgments.” Bear v. Patton , 451 F.3d 639, 641 (10th Cir. 2006). But removal does not constitute an appeal, de facto or otherwise, of the st ate court proceedings; rather it is a continuation of the proceedings and “[t] he jurisdiction exercised on (continued)- 7 - under Rule 11 are discretionary; not mandatory. See 5A C. Wright & A. Miller, Federal Practice and Procedure (3d ed.), § 1331 at 476 (explaining that under the 1993 amendments to Rule 11, “[t]he district court now ha s discretion in determining whether or not to apply sanctions for a Ru le 11 violation and no longer is mandated to do so as was true under the 1983 amendment”); Brown , 725 F.3d at 1228 & nn.2 & 3 (rejecting as meritless the ar gument that “[a] trial court abuses its discretion when it refuses to impose sanctions . . . for a clear violation of Rule 11”). Ms. Lundahl claims it was “undisputed” th at she asserted only state law claims against the Defendants. Aplt. Opening Br. at 6. But this is factually incorrect: her complaint facially alleged federal claims against Home Depot and Citibank; the Defendants disputed her claim that she asserted only stat e law claims against them; and the district court characterized that di spute as a “close call,” Hr’g Tr. at 9. Ms. Lundahl argues removal was frivolous b ecause only credit reporting agencies can be liable under the FCRA. But she did not raise this argument below, arguing only that her complaint did not allege a fede ral claim against th e Defendants. She supported this argument by misquoting her co mplaint, omitting the FCRA allegations against “defendants” in paragraph 20. Compare R. Vol. 1, at 19, Compl. ¶ 20, with id . at 256. Moreover, Ms. Lundahl’s disc ussion of her complaint on appeal is selective; she makes no mention of the alle gation in her complaint that Home Depot

removal is original not appellate.” Freeman v. Bee Mach. Co. , 319 U.S. 448, 452 (1943).- 8 - and Citibank, specifically , engaged in illegal loan shar king in violati on of federal usury laws. Id . at 17, Compl. ¶ 13. The Supreme Court has ruled that circui t courts are to apply an abuse of discretion standard when reviewing all aspect s of a district court’s Rule 11 decision, including its determination “t hat a litigant’s position is factually well grounded and legally tenable for Rule 11 purposes.” Cooter & Gell , 496 U.S. at 403-05. Here, the district court determined th at its decision to remand was a “close call,” and that it could “certainly see the basis” for Defenda nts’ removal, part icularly given the deficiencies and generalities in Ms. Lundahl’s complaint. Hr’g Tr. at 7-9. Based upon our review of the record, we see no a buse of the district court’s discretion to deny Ms. Lundahl’s reque st for sanctions. Affirmed.

Entered for the Court
Carolyn B. McHugh Circuit Judge