UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

_________________________________

AMERICA WEST BANK MEMBERS, 

 Plaintiff - Appellant,

v.

THE STATE OF UTAH; G. 

EDWARD LEARY; UTAH 

DEPARTMENT OF FINANCIAL 

INSTITUTIONS, 

 Defendants - Appellees.

------------------------------

FEDERAL DEPOSIT INSURANCE 

CORPORATION, as Receiver for 

America West Bank, 

 Intervenor - Appellee.

No. 23-4091

(D.C. No. 2:16-CV-00326-CW)

(D. Utah)

_________________________________

ORDER AND JUDGMENT*

_________________________________

Before HARTZ, BACHARACH, and ROSSMAN, Circuit Judges.

_________________________________

* This order and judgment is not binding precedent, except under the 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

August 14, 2024

Christopher M. Wolpert

Clerk of Court

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The Utah Department of Financial Institutions seized America West 

Bank after concluding the Bank was in financial trouble. The Department then 

appointed the Federal Deposit Insurance Corporation (FDIC) as the Bank’s 

receiver. Plaintiff-Appellant America West Bank Members (AWBM)—the 

Bank’s sole owner—sued the Department, its commissioner G. Edward Leary, 

and the State of Utah, contending their actions violated AWBM’s state and 

federal constitutional rights.1 The district court granted summary judgment

for Appellees. AWBM now appeals, but most of its challenges are waived. 

Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

I2

AWBM’s claims implicate the process by which a bank is seized in 

Utah, so we begin by discussing in some detail the state-law framework for 

1 AWBM did not name the FDIC as a defendant. The FDIC intervened 

in the district court and in this appeal. Only the FDIC filed a response brief 

in this court, but pursuant to Federal Rule of Appellate Procedure 28(i), 

Utah, the Department, and Commissioner Leary joined the FDIC’s brief 

urging affirmance. We refer to Utah, the Department, Commissioner Leary, 

and the FDIC as “Appellees.”

2 We take the facts recited here from those the district court found 

uncontroverted in its summary judgment orders and the record before the 

district court at the time of its rulings. AWBM’s appellate appendix omits 

several relevant documents. Because these documents “are accessible from the 

district court docket,” we may “take judicial notice of” them. Bunn v. Perdue, 

966 F.3d 1094, 1096 n.4 (10th Cir. 2020). We do so where necessary, citing to 

the district court docket number and using the internal pagination of the 

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taking possession of a financial institution and appointing a receiver. We 

then describe the underlying factual and procedural background and turn 

to AWBM’s appellate challenges.

A

The Bank is chartered in Utah, where the Utah Department of 

Financial Institutions and its commissioner oversee the Bank’s activities.

The Department “regularly conduct[s] examinations of banks [in Utah] to 

determine their safety and soundness.” ECF 64 at 2. Utah law provides 

statutory criteria to gauge the health of a financial institution and allows 

the commissioner to take “supervisory actions” under certain 

circumstances. Utah Code Ann. § 7-2-1(1).3

One such supervisory action, relevant here, is taking “possession of 

[the] institution.” Utah Code Ann. § 7-2-1(3)(b). To take that step, the 

commissioner must—either before or within a certain time after taking 

document. See In re Syngenta AG MIR 162 Corn Litig. (Hossley-Embry Group 

II), --- F.4th ----, 2024 WL 3684788, at *2 n.2 (10th Cir. 2024) (taking judicial 

notice of “filings on this district court’s docket and on our own docket” where 

“necessary to inform our discussion”).

3 Utah Code Ann. § 7-2-1(1) lists twelve criteria. For example, if the 

commissioner finds “the institution is not in a safe and sound condition to 

transact its business,” Utah Code Ann. § 7-2-1(1)(a), or has “failed to 

maintain a minimum amount of capital,” Utah Code Ann. § 7-2-1(a)(f), he 

may act.

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possession—file an action in state court, which then gives “the court

supervisory jurisdiction to review the actions of the commissioner.” Utah 

Code Ann. § 7-2-2(1). The state court may “overrule” the commissioner’s 

actions if the court finds they were “arbitrary, capricious, fraudulent, or 

contrary to law.” Utah Code Ann. § 7-2-2(3)(b). As we will explain, 

Commissioner Leary determined the Bank met criteria in Utah Code Ann.

§ 7-2-1(1) and filed a verified petition seeking an “Order Approving 

Possession” of the Bank, which the Utah court granted. R.II at 351–54.

Utah law permits challenges to a possession order. “[W]ithin 10 days 

after the taking,” Utah Code Ann. § 7-2-3(1)(a) allows any “institution or 

other person . . . aggrieved by the taking” to “apply to the court to enjoin 

further proceedings.” The court is then required to “hear[] the allegations 

and proofs of the parties” and may “enjoin the commissioner from further 

proceedings” if the commissioner’s taking was “arbitrary, capricious, an 

abuse of discretion, or otherwise contrary to law.” Utah Code Ann. § 7-2-

3(1)(b). At the conclusion of this process, the court can “order the 

commissioner to surrender possession of the institution.” Utah Code Ann.

§ 7-2-3(1)(c).

After taking possession, the commissioner may appoint a “receiver or 

liquidator” to “exercise any or all the rights, powers, and authorities 

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granted to the commissioner” under Utah law. Utah Code Ann. § 7-2-1(4). 

Here, the FDIC was appointed as the Bank’s receiver. The FDIC is a federal 

agency “created by Congress to promote stability and restore and maintain 

confidence in the nation’s banking system.” Fed. Deposit Ins. Corp. v. Bank 

of Boulder, 865 F.2d 1134, 1136 (10th Cir. 1988), on reh’g, 911 F.2d 1466 

(10th Cir. 1990). “To achieve this objective, [the] FDIC insures bank 

deposits” and pays “depositors when an insured bank fails.” Id. The

Financial Institutions Reform, Recovery, and Enforcement Act (FIRREA) 

also permits the FDIC to act as a receiver for any “depository institution” it

insures. See 12 U.S.C. § 1821(c)(1) (“[T]he Corporation may accept 

appointment and act as conservator or receiver for any insured depository 

institution . . . .”). Once the FDIC is appointed, FIRREA grants it all “rights 

titles, powers, and privileges of the insured depository institution, and of 

any stockholder, member, accountholder, depositor, officer, or director of 

such institution with respect to the institution and the assets of the 

institution.” 12 U.S.C. § 1821(d)(2)(A)(i) (the Succession Clause).

B 

The Bank was formed in May 2000, and, at all relevant times, was wholly 

owned by AWBM. In 2007, the Department and the FDIC raised concerns 

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about the Bank’s financial health and then conducted an examination.4 The 

Department and the FDIC produced a report finding the Bank’s condition had 

“deteriorated significantly” and was “deficient.” ECF 64 at 2. The report 

concluded the Bank was overinvolved in the real estate market, lacked 

adequate capital, and had inexperienced and underperforming leadership. 

Discussions about these concerns continued with the Bank for over a year. 

The Bank’s last examination was in February 2009. The report that 

followed concluded the Bank was “insolvent,” and assigned it the “lowest 

possible [Risk Management Composite] rating.” ECF 64 at 5. The rating 

indicated the Bank “exhibit[ed] extremely unsafe and unsound practices or 

conditions . . . and [was] of the greatest supervisory concern.” ECF 64 at 5. 

In April 2009, the Department informed the Bank that it was considering 

possession proceedings. Douglas Durbano, Chairman of the Bank’s board, 

asked to “be informed in advance of any” supervisory actions and to have “the 

opportunity to attend [the hearing] and present evidence.” R.II at 270. Mr. 

4 Utah Code Ann. § 7-1-314(1) permits the commissioner to “examine 

or cause to be . . . examined every depository institution” subject to the 

Department’s jurisdiction. The examination must include inquiries into, 

among other things, “the condition and resources of the institution,” “the 

mode of conducting and managing of its affairs,” and the “actions of its 

directors and officers.” Id. § 7-1-314(2). Federal law directs the FDIC to 

conduct similar examinations. See 12 U.S.C. § 1817. 

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Durbano acknowledged, however, “such proceedings can be ex-parte.” R.II at

270.5

A few weeks later, on May 1, 2009, Commissioner Leary filed an ex parte

petition under Utah Code Ann. § 7-2-2 seeking an order “approving the taking 

of possession of” the Bank. R.II at 344. Commissioner Leary alleged the Bank 

“failed to maintain a minimum amount of capital,” the Bank was or was “about 

to become insolvent,” and the Bank’s “officers or directors have failed or refused 

to comply with the terms of a legally authorized order of the Commissioner.”

R.II at 345–46. 

The state court held an ex parte hearing the same day. The Department 

informed the court that Mr. Durbano had asked to attend the hearing, but the 

court explained he “was not entitled to notice of or presence at the [h]earing.” 

ECF 64 at 10. The court then heard argument on the petition. Commissioner 

Leary was the only witness. He testified to “each action in the petition,” 

5 The parties seem to agree Utah law allowed ex parte proceedings 

under these circumstances. See Oral Arg. at 2:28 (AWBM’s counsel stating 

the Utah court “heard the matter, as it was entitled to, ex parte”). However, 

AWBM appears to claim that an ex parte proceeding constitutes in 

inadequate and unconstitutional pre-seizure deprivation process. The 

district court found this challenge barred by the Rooker-Feldman doctrine, 

and as we will explain, AWBM waived any contrary argument by 

inadequately briefing the issue on appeal. 

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concluding the Bank was insolvent and the “loss” from its failure was 

“estimated in excess of 8 million dollars.” ECF 64 at 11. 

At the conclusion of the hearing, the state court granted the petition. The 

court determined the “Bank is not in a safe or sound condition to transact 

business,” “failed to maintain a minimum amount of capital,” “is or is about to 

become insolvent,” and “failed or refused to comply with the terms of a legally 

authorized order issued by the Commissioner.” R.II at 351–52. These findings, 

the court explained, constituted “grounds for taking possession under [the] 

Utah Code.” R.II at 351–53. 

Commissioner Leary appointed the FDIC as receiver immediately after 

taking possession. Later that day, he provided copies of the state court petition 

and possession order to AWBM. It is undisputed AWBM never invoked the 

procedures established by Utah Code Ann. § 7-2-3 to challenge the Bank’s 

seizure. 

C 

In June 2011, a few years after the FDIC was appointed as receiver, 

AWBM first challenged the Bank’s seizure in Utah state court by suing the 

State of Utah, the Department, Commissioner Leary, and the Department’s 

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supervisor of banks.6 See Am. W. Bank Members, L.C. v. State, 342 P.3d 224, 

227 (Utah 2014). In March 2016, AWBM filed an amended complaint in 

state court, this time naming as defendants only the State of Utah, the 

Department, and Commissioner Leary. The defendants removed to federal 

court shortly thereafter. About two years later, AWBM filed the Second 

Amended Complaint—the operative pleading before us. AWBM asserted seven 

causes of action, but only two relate to this appeal. 

First, AWBM alleged a pre-seizure procedural due process claim under 

the Utah Constitution. It claimed “seizing the Bank without a basis for finding 

that any of the twelve statutory preconditions to seizure [under Utah law] 

existed” and making “false statements and material omissions” during state 

court proceedings deprived it of procedural due process. R.I at 132 ¶¶ 133–34, 

134 ¶ 147. Second, based on the same allegations, AWBM asserted a related 

civil rights claim under 42 U.S.C. § 1983 against Commissioner Leary, alleging 

he deprived AWBM of procedural due process under the Fourteenth 

Amendment by seizing the Bank “without notice and a hearing.” R.I at 140. 

6 Relevant to the claims before us, AWBM alleged “due process required 

a pre-seizure hearing.” Am. W. Bank Members, L.C. v. State, 342 P.3d 224, 

237 (Utah 2014). The state court dismissed AWBM’s claims. Id. at 227. The 

Utah Supreme Court ultimately affirmed dismissal, but ordered AWBM’s preseizure procedural due process claim dismissed without prejudice because the 

“defect in that claim [was] a failure to plead the claim at an adequate level 

of detail.” Id. at 237. 

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Summary judgment litigation followed. For context, we now discuss 

some of those proceedings and then detail the litigation history resulting in the 

order on appeal—the 2022 order granting Appellees’ motion for summary 

judgment. 

1 

In early 2019, AWBM moved for partial summary on its pre-seizure 

procedural due process claim and the related § 1983 claim against 

Commissioner Leary.7 Both claims were based on the allegedly inadequate 

process used to seize the Bank. AWBM insisted Commissioner Leary’s petition 

“contained nothing more than conclusory statements that were completely 

devoid of factual support or evidence” to support taking possession. ECF 45 at 

16. That, in “combination with an ex parte hearing in which the Commissioner 

simply regurgitated the same conclusory statements, resulting in [the state 

court] rubber stamping the conclusions of the Commissioner,” meant AWBM’s 

“due process rights, as well as [its] civil rights, were violated.” ECF 45 at 16. 

Appellees opposed the motion, maintaining there was no deprivation of 

procedural due process. Appellees also argued AWBM impermissibly sought 

“to have this federal court review an order of the state court.” ECF 62 at 45–

7 AWBM also moved for partial summary judgment as to its 

substantive due process claim, which is not at issue in this appeal. 

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46; see also ECF 62 at 58 (“Did [J]udge Morris make a mistake signing the 

order? That’s really not a proper question before [the court] . . . . It’s 

inappropriate . . . in federal court [to] second guess a state court’s ruling.”). 

Appellees did not reference the Rooker-Feldman doctrine, but, as we explain,

that is how the district court understood their argument. 

The “Rooker-Feldman doctrine,” the district court explained, 

“establishes, as a matter of subject-matter jurisdiction, that only the United 

States Supreme Court has appellate authority to review a state-court 

decision.” ECF 64 at 18 (quoting Merrill Lynch Bus. Fin. Servs., Inc. v. Nudell, 

363 F.3d 1072, 1074–75 (10th Cir. 2004)). According to the district court,

AWBM’s procedural due process challenge based on the ex parte nature of the 

state court possession proceedings and the sufficiency of the evidence

supporting the seizure were attacks on the state court’s possession order and 

thus barred by the Rooker-Feldman doctrine. But to the extent AWBM’s 

procedural due process claim rested on Commissioner Leary’s alleged 

misrepresentations and omissions during the possession hearing, the district 

court reasoned, those allegations were “independent from the [state court] 

Order itself” and thus were not barred by Rooker-Feldman. ECF 64 at 22. The 

district court denied summary judgment on that aspect of the claim because, 

viewing the evidence in favor of the non-movant at that procedural stage, the 

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possession order was based on the 2009 Report concluding the Bank was 

failing—and not on Commissioner Leary’s statements. ECF 64 at 32 & n.14. 

Litigation continued in the district court for several years, with both 

parties engaging in extensive discovery.

2 

In May 2022, AWBM again moved for summary judgment on its 

procedural due process claim and related § 1983 cause of action. This time, 

AWBM appeared to renounce its challenge to the allegedly “flawed 

examinations process employed by Defendants to seize the Bank.” R.II at 199. 

“Instead,” said AWBM, its “motion and memorandum focus exclusively on 

Defendants’ violation of procedural due process and deprivation of civil rights 

for failing to provide notice and a meaningful opportunity to be heard either

before or after the seizure of the Bank, as is clearly required by the due process 

clauses of the United States and Utah Constitutions.” R.II at 199–200

(emphasis added). AWBM contended, for the first time, the immediate 

appointment of the FDIC “terminated any meaningful opportunity for postseizure relief.” R.II at 200 (emphasis added). 

In their opposition, Appellees insisted AWBM “completely abandoned 

the premise of its original” summary judgment motion. ECF 284 at 18. 

AWBM’s second motion for summary judgment, Appellees explained, was 

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“devoid of evidence or argument of any fraud upon the state court.” ECF 284 

at 18. Instead, “AWBM present[ed] a new legal argument,” ECF 284 at 22, that 

the post-seizure appointment of the FDIC foreclosed its ability to “challenge 

the Utah court’s decision ordering possession of the Bank to [the Department] 

and [the] FDIC.” ECF 284 at 24 (quoting ECF 258 at 13–14 (AWBM’s second 

partial motion for summary judgment)). We will refer to this challenge as 

AWBM’s Post-Seizure Claim. 

Appellees moved for summary judgment a few weeks later. Relevant 

here, they contended AWBM lacked “standing” because its claims belonged to 

the FDIC under FIRREA’s Succession Clause. R.III at 501–02.

The district court scheduled oral argument limited to the standing issue. 

At the hearing, AWBM focused only on its standing to pursue the Post-Seizure 

Claim. See, e.g., R.III at 646 (“[T]his complaint is about the harm they caused 

at the moment of seizure.”). “[O]nce the FDIC [was] appointed receiver,” 

AWBM argued, the “state court ha[d] no jurisdiction” to review the Utah 

court’s possession order, depriving AWBM of a post-seizure opportunity to be 

heard. R.III at 649. AWBM insisted this claim was not covered by the 

Succession Clause. 

In a colloquy with AWBM’s counsel, the district court asked “[w]here do 

you plead this [Post-Seizure Claim] in your complaint?” R.III at 650. AWBM 

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identified several paragraphs discussing Appellees’ actions before, and during, 

the state court proceedings.8 But the district court saw no allegation that 

AWBM was “precluded from objecting” to the seizure under Utah Code Ann. § 

7-2-3(1)(a). R.III at 656. In response, AWBM maintained its claim “is inherent 

in the complaint if it’s not directly stated in there.” R.III at 657. The district 

court raised the same issue with Appellees, stating “[w]hat I’m struggling with 

. . . is the [post-seizure] theory that counsel have argued doesn’t seem to be the 

theory that’s argued in the complaint.” R.III at 663. Appellees’ response was 

unequivocal: “[i]t is not [in the complaint],” and “it is also not the basis on 

which [AWBM has] been litigating this case for the past several years.” R.III 

at 663. 

8 AWBM specifically relied on paragraphs “133, 134 through 136, 178, 

192, 234, 251, et cetera”—to establish the Post-Seizure Claim. R.III at 656.

But paragraphs 133 through 136 allege a pre-seizure deprivation. R.I at 132 

¶ 133 (“Commissioner Leary and UDFI violated this clearly established law 

by seizing the Bank without a basis for finding that any of the twelve 

statutory preconditions to seizure existed.”); R.I at 132 ¶ 134 (“[T]he false 

statements and material omissions made by Commissioner Leary and UDFI 

to the court would constitute a violation of procedural due process.”); R.I at 

140 ¶ 192 (“Commissioner Leary acted intentionally and deliberately in 

depriving AWBM of its property without notice or a hearing.”). Paragraphs 

178, 234, and 251 do not relate to the procedural due process or § 1983

claims.

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The district court granted Appellees’ motion for summary judgment and 

dismissed the case with prejudice.9 The district court made three rulings

relevant to the issues on appeal. 

First, the district court reiterated its prior conclusion that the RookerFeldman doctrine barred AWBM’s challenge based on the ex parte nature of 

the state court possession proceedings and the sufficiency of the evidence 

supporting the possession order.10 But the district court determined RookerFeldman did not bar AWBM’s procedural due process and related civil rights 

claims insofar as they challenged “Commissioner Leary’s purported failure to 

disclose material information to the state court judge” during the possession 

hearing. R.III at 696.

Second, the district court declined to consider AWBM’s Post-Seizure 

Claim, reasoning it was not found “anywhere in AWBM’s second amended 

complaint.” R.III at 695 n.5. 

9 The district court denied as moot AWBM’s cross-motion for summary 

judgment. 

10 We understand AWBM, in its second motion for summary judgment,

abandoned its procedural due process challenge based on the evidentiary 

foundation for the possession order. R.II at 199–200 (“This motion and 

memorandum are without regard to Defendants’ motives and/or the 

assertedly flawed examinations process employed by Defendants to seize 

the Bank.”). This claim is therefore not relevant to the issues before us on 

appeal. 

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Third, the district court ruled AWBM lacked prudential standing to 

advance any remaining pre-seizure deprivation claim. “While the State 

couches its argument in terms of standing,” the district court explained, “the 

argument concerns what is sometimes referred to as ‘prudential standing,’ 

which ‘encompasses various limitations, including the general prohibition on a 

litigant’s raising another person’s legal rights.’” R.III at 691 n.3 (quoting 

Brumfiel v. U.S. Bank, 618 F. App’x 933, 936 (10th Cir. 2015)). The district 

court concluded AWBM’s claims based on Commissioner Leary’s 

misrepresentations—which survived the Rooker-Feldman dismissal—“f[ell] 

within the scope of FIRREA’s succession clause and thus were assumed by the 

FDIC upon its appointment as receiver.” R.III at 696. 

This timely appeal followed. 

II

AWBM urges reversal on three grounds. First, AWBM attempts to 

argue against the district court’s application of the Rooker-Feldman doctrine. 

Second, AWBM insists the district court erroneously refused to consider the 

Post-Seizure Claim. Third, AWBM maintains it has prudential standing to 

advance its Post-Seizure Claim, insisting the district court’s contrary ruling 

is based on an erroneous application of FIRREA’s Succession Cause. None of 

these arguments is availing, as we explain.

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A

We begin with AWBM’s arguments about the dismissal of its claims 

based on the Rooker-Feldman doctrine. Appellees contend AWBM waived the 

issue by failing to brief it adequately on appeal. We agree. 

“The Rooker-Feldman doctrine precludes a losing party in state court 

who complains of injury caused by the state-court judgment from bringing a 

case seeking review and rejection of that judgment in federal court.” In re 

Miller, 666 F.3d 1255, 1261 (10th Cir. 2012). “[T]he type of judicial action 

barred by Rooker-Feldman [] consists of a review of the proceedings already 

conducted by the ‘lower’ tribunal to determine whether it reached its result in 

accordance with law.” Bolden v. City of Topeka, Kansas, 441 F.3d 1129, 1143 

(10th Cir. 2006). “We review the application of the Rooker-Feldman doctrine 

de novo.” In re Miller, 666 F.3d at 1260. 

Recall, the district court found the Rooker-Feldman doctrine barred 

AWBM’s procedural due process challenges to the ex parte nature of the 

possession proceedings and the allegedly inadequate factual foundation for the 

possession order. These claims, the district court reasoned, “complain[] of 

injuries caused by the state proceedings granting” Commissioner Leary’s 

petition, and the Rooker-Feldman doctrine thus applied. ECF 64 at 20. The 

“only claim [the court] has jurisdiction to hear,” the district court explained,

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“is the claim that AWBM’s rights were violated as a result of Commissioner 

Leary’s purported failure to disclose material information to the state court 

judge that would have prevented entry of the order of possession.” R.III at

696 (emphasis added). The district court explained these claims were “not 

barred under Rooker-Feldman” because they challenge “the actions of the 

Defendants—not Judge Morris’ Order.” ECF 64 at 22; see also R.III at 696.

On appeal, AWBM’s challenge to the district court’s Rooker-Feldman 

ruling appears only in a footnote in its opening brief. AWBM’s argument states,

in full,

AWBM wishes to further clarify that despite the district court 

having surmised that AWBM is seeking to have a federal court 

review of the state court decision leading to the Order of 

Possession, such is not the case. AWBM emphatically asserts that 

the Rooker-Feldman doctrine as discussed in the district court 

Memorandum Decision and Order is not applicable in this case. 

AWBM’s action is not seeking to challenge the state court’s 

decision to issue an order authorizing [the Department] to take 

possession of Bank. Instead, AWBM’s action is for violation of its 

procedural due process rights and is based upon the fundamental 

and unchallenged premise that procedural due process requires 

notice and an opportunity to be heard in either a pre- or postseizure hearing when the government seizes property. 

Opening Br. at 29 n.8. Our law is clear: “Arguments raised in a perfunctory 

manner, such as in a footnote, are waived.” United States v. Berry, 717 F.3d 

823, 834 n.7 (10th Cir. 2013) (emphasis added) (quoting United States v. 

Hardman, 297 F.3d 1116, 1131 (10th Cir. 2002) (en banc)). And this argument

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appears in a section of the opening brief dedicated to a different issue.11 We 

have no trouble concluding, on the record before us, AWBM did not 

adequately present on appeal the issue it contends warrants reversal. 

In its reply brief, AWBM invites us to overlook the waiver. AWBM is

correct that, mostly, “whether issues should be deemed waived is a matter of 

discretion.” In re Syngenta AG MIR 162 Corn Litig., 61 F.4th 1126, 1182 (10th 

Cir. 2023) (quoting United States v. Walker, 918 F.3d 1134, 1153 (10th Cir. 

2019)). Here, AWBM contends “the interests of justice” support excusing its 

waiver because it “did not intentionally abandon its issues” and “the issues are 

fully briefed.” Reply Br. at 26. We are not persuaded.

According to AWBM, it “argued against the Rooker-Feldman doctrine [in 

its opening brief] regardless of the labels or nomenclature used” by contending 

it did “not seek recission of the Order of Possession.” Reply Br. at 24–25. But 

this is not sufficient. AWBM does not explain the district court’s ruling, why it 

11 AWBM did not include the district court’s Rooker-Feldman order 

and most of the relevant district court briefing on the issue in its appellate 

appendix. “A party who seeks to reverse the decision of a district court must 

provide an adequate record for this court to determine that error was 

committed.” Travelers Indem. Co. v. Accurate Autobody, Inc., 340 F.3d 1118, 

1119 (10th Cir. 2003). And our local rules require an appellant to include 

“the order from which the appeal is taken,” 10th Cir. R. 10.4(C)(6), 

“pertinent . . . opinions [and] orders of [the] district judge,” 10th Cir. R. 

10.4(C)(4), and “the motion,” “relevant portions” of “supporting documents,” 

and the parties’ briefing, 10th Cir. R. 10.4(D)(2).

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was wrong, the claims affected, or even the standard governing our review. 

“[T]his court is not in the business of filling in the gaps” made by “insufficient 

arguments.” United States v. McBride, 94 F.4th 1036, 1045 (10th Cir. 2024); In 

re Syngenta AG MIR 162 Corn Litig., 61 F.4th at 1203 (“Where litigants do not 

advance a meaningful theory of error, we ‘will not go hunting’ for it.” (quoting 

Voulgaris v. Array Biopharma, Inc., 60 F.4th 1259, 1265 (10th Cir. 2023))); 

Rodriguez v. IBP, Inc., 243 F.3d 1221, 1227 (10th Cir. 2001) (“This court will 

not make arguments for [appellant] that he did not make himself.”). 

Next, AWBM maintains we should review the Rooker-Feldman challenge

because it was discussed in the reply brief. An appellant typically cannot raise 

an argument “in cursory fashion in his Opening Brief and then develop[] [it] in 

his Reply Brief.” United States v. Martinez, 92 F.4th 1213, 1233 n.4 (10th Cir. 

2024). And we are disinclined to address appellate arguments untested by the 

adversarial process. Hill v. Kemp, 478 F.3d 1236, 1251 (10th Cir. 2007)

(explaining our waiver rules do not “compel us to undertake . . . self-directed 

research or pursue late and undeveloped arguments, and we exercise caution 

in doing so, especially in complex cases where (as here) highly competent 

counsel have represented the parties throughout all stages of the 

proceedings”); see id. (explaining “without the benefit of a response from 

appellee to an appellant’s late-blooming argument, [we] would run the risk of 

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an improvident or ill-advised opinion, given our dependence . . . on the 

adversarial process for sharpening the issues for decision” (quoting Headrick

v. Rockwell Int’l Corp., 24 F.3d 1272, 1278 (10th Cir. 1994))).

Accordingly, we must conclude AWBM has waived any appellate 

challenge to the district court’s Rooker-Feldman ruling by failing to brief it 

adequately on appeal. 

B

AWBM next challenges the grant of summary judgment to Appellees 

on its remaining procedural due process and related civil rights claims. We 

generally review a decision granting summary judgment “de novo, applying 

the same standard as the district court.” E.W. v. Health Net Life Ins. Co., 

86 F.4th 1265, 1294 (10th Cir. 2023). Here, AWBM’s allegation of error is 

that the district court refused to consider its Post-Seizure Claim.12 When 

discussing the Post-Seizure Claim, the district court explained it would “not 

address the merits of AWBM’s new argument where it was never properly 

pleaded or briefed in response to the State’s motion.” R.III at 696 n.5. In 

support of reversal, AWBM makes two arguments. First, AWBM insists it 

pled the Post-Seizure Claim in the operative complaint, and second, to the 

12 Recall, the Post-Seizure Claim alleges the immediate appointment 

of the FDIC deprived AWBM of a post-deprivation opportunity to be heard.

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extent its allegations were unclear, its summary judgment briefing “sufficed 

to preserve the issue and tee it up for decision by the district court.” 

Opening Br. at 30. We discern no error.

1 

AWBM first insists it pled a Post-Seizure Claim, and the district court 

erroneously concluded otherwise. We disagree.

Federal Rule of Civil Procedure 8(a)(2) “requires only ‘a short and plain 

statement of the claim showing that the pleader is entitled to relief,’ in order 

to ‘give the defendant fair notice of what the . . . claim is and the grounds upon 

which it rests.’” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting 

Conley v. Gibson, 355 U.S. 41, 47 (1957)). Generally, “to state a claim in federal 

court, a complaint must explain what each defendant did to him or her; when 

the defendant did it; how the defendant’s action harmed him or her; and, what 

specific legal right the plaintiff believes the defendant violated.” Nasious v. 

Two Unknown B.I.C.E. Agents, at Arapahoe Cnty. Just. Ctr., 492 F.3d 1158, 

1163 (10th Cir. 2007). “After all, these are, very basically put, the elements 

that enable the legal system to get weaving—permitting the defendant 

sufficient notice to begin preparing its defense and the court sufficient clarity 

to adjudicate the merits.” Id. 

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Guided by these principles, we agree with the district court that AWBM 

failed to allege the Post-Seizure Claim. AWBM claimed Appellees violated its 

procedural due process rights by “seizing the Bank without a basis for finding 

that any of the twelve statutory preconditions to seizure existed,” in violation 

of “clearly established law” requiring a pre-seizure hearing. R.I at 132–133. 

The focus of the complaint was on a pre-seizure deprivation of procedural due 

process. R.I at 131 ¶ 126 (“[O]ne of the fundamental . . . premises of allowing 

seizure without a prior hearing is that the seizing official strictly adheres to 

the statutory requirements.”); R.I at 134 ¶ 145 (“No reasonable Commissioner 

would believe that he or she could, without notice and a hearing and without 

strictly complying with statutory requirements, brazenly seize a financial 

institution.”). The complaint nowhere alleged the immediate appointment of 

the FDIC deprived AWBM of a post-seizure opportunity to be heard.

We thus agree with the district court that AWBM’s Post-Seizure Claim 

was never alleged. 

2 

AWBM next insists, even if its complaint is deficient, the district court 

should have considered statements in its summary judgment briefing to 

“clarify allegations in [the] complaint whose meaning is unclear.” Opening 

Br. at 30 (quoting Pegram v. Herdrich, 530 U.S. 211, 230 n.10 (2000)). In 

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support, AWBM relies on Pegram v. Herdrich, where the Supreme Court

noted, in a case involving a motion to dismiss under Federal Rule of Civil 

Procedure 12(b)(6), “we may use [plaintiff’s] brief to clarify allegations in 

her complaint whose meaning is unclear.” 530 U.S. at 230 n.10. This general 

rule does not apply here, where the allegations are not unclear but absent.

Rather, “[a]n issue raised for the first time in a motion for summary 

judgment may properly be considered a request to amend the complaint, 

pursuant to Federal Rule of Civil Procedure 15.” Pater v. City of Casper, 646 

F.3d 1290, 1299 (10th Cir. 2011). We “construe the district court’s refusal to 

address [a] new issue as a denial of plaintiffs’ request” to amend the complaint.

Id. In this posture, we generally “will not reverse the court’s decision [not 

to consider a new issue advanced at summary judgment] absent an abuse 

of discretion.” Id. (quoting Minter v. Prime Equip. Co., 451 F.3d 1196, 1204–

05 (10th Cir. 2006). The parties do not cite this authority—neither did the 

district court—but in the interest of fully adjudicating AWBM’s appellate 

challenges, we discuss these more relevant legal principles here.

Rule 15, governing the amendment of pleadings, provides district courts 

should grant leave to amend “when justice so requires.” Fed. R. Civ. P. 15(a). 

“As a general rule, a plaintiff should not be prevented from pursuing a claim 

merely because the claim did not appear in the initial complaint.” Pater, 646 

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F.3d at 1299. However, a court properly denies leave to amend when “a late 

shift in the thrust of the case will [ ] prejudice the other party in maintaining 

his defense upon the merits.” Id. (alteration in original) (quoting Evans v. 

McDonald’s Corp., 936 F.2d 1087, 1090–91 (10th Cir. 1991)). Indeed,

“untimeliness alone is a sufficient reason to deny leave to amend . . . when the 

party filing the motion has no adequate explanation for the delay.” Frank v.

U.S. W., Inc., 3 F.3d 1357, 1365–66 (10th Cir. 1993). And when “the party 

seeking amendment kn[ew] or should have known of the facts upon which the 

proposed amendment is based but fail[ed] to include them in the original 

complaint,” a court appropriately denies leave to amend. Las Vegas Ice & Cold 

Storage Co. v. Far W. Bank, 893 F.2d 1182, 1185 (10th Cir. 1990) (quoting State 

Distrib., Inc. v. Glenmore Distilleries Co., 738 F.2d 405, 416 (10th Cir. 1984)).

A district court may also “withhold leave to amend if the amendment would be 

futile.” Chilcoat v. San Juan Cnty., 41 F.4th 1196, 1218 (10th Cir. 2022).

Amendment is futile if “the complaint, as amended, would [still] be subject to 

dismissal.” Full Life Hospice, LLC v. Sebelius, 709 F.3d 1012, 1018 (10th Cir. 

2013) (quoting Bradley v. Val-Mejias, 379 F.3d 892, 901 (10th Cir. 2004)). We 

review futility determinations de novo. Cohen v. Longshore, 621 F.3d 1311, 

1314–15 (10th Cir. 2010).

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Applying these standards, we discern no reversible error in the district 

court’s refusal to consider the Post-Seizure Claim.

First, AWBM’s Post-Seizure Claim, at least on the arguments before us, 

is likely unavailing as a matter of law. It is undisputed Utah law provided a 

post-seizure process to seek the Bank’s return. Utah Code Ann. § 7-2-3

(explaining a person “aggrieved by the taking” may challenge it, and, if 

successful, the court must “order the commissioner to surrender possession of 

the institution”). Indeed, AWBM affirmatively alleged “a post-seizure 

injunction is available to one whose financial institution has been seized.” R.I 

at 137 ¶ 168. There is no question AWBM never tried to use this process. 

AWBM simply decided, “[i]mmediately after the seizure of the Bank,” that to 

“petition the court to undo the seizure would not provide any meaningful 

relief.” R.I at 138 ¶ 173; see also R.I at 137 ¶ 168 (alleging the return of the 

Bank “would not restore the public’s confidence in the Bank which had been 

wrongfully destroyed by Commissioner Leary’s actions”). “Having ignored the 

available procedures,” AWBM is in “no position to argue that they are 

unconstitutional.” Weinrauch v. Park City, 751 F.2d 357, 360 (10th Cir. 1984). 

We are likewise unpersuaded by AWBM’s argument that federal law—12 

U.S.C. § 1821(j)—deprived the Utah courts of jurisdiction to overrule the order 

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of possession as soon as Commissioner Leary appointed the FDIC as receiver.13

We are aware of no court applying § 1821(j) in the manner AWBM suggests, 

and AWBM cites no authority to support its position.14

Second, AWBM raised the Post-Seizure Claim eleven years after first 

challenging the Bank’s seizure in state court, four years after the operative

complaint was filed, and two years after the district court ruled on AWBM’s 

partial summary judgment motion. We have affirmed the denial of leave to 

amend even when the request was made much earlier. Las Vegas Ice & Cold 

Storage Co., 893 F.2d at 1185 (denying a motion to amend filed “approximately 

13 That statute provides, “[e]xcept as provided in this section, no court 

may take any action . . . to restrain or affect the exercise of powers or functions 

of the Corporation as a conservator or a receiver.” 12 U.S.C. § 1821(j).

14 As Appellees point out, at least one of our sister circuits has rejected 

AWBM’s interpretation. Resp Br. at 52–54; Hindes v. F.D.I.C., 137 F.3d 148, 

168 (3d Cir. 1998) (finding § 1821(j) barred a federal court from removing the 

FDIC as receiver because “there is an adequate procedure available” under 

Pennsylvania law “to challenge the appointment”). Moreover, AWBM appears 

to suggest appointing the FDIC as receiver somehow “dispossess[ed] the UDFI 

of the Bank and its assets and preempt[ed the] application of Utah Code § 7-2-

3.” Opening Br. at 3; see also Oral Arg. at 3:00–3:06 (suggesting the 

Department foreclosed post-seizure relief by “transferring” the Bank to the 

FDIC). AWBM cites no authority supporting this assertion, and Utah law 

appears to refute it directly. See Utah Code Ann. § 7-2-1(4) (“Upon taking 

possession of an institution . . . the commissioner is vested by operation of 

law with the title to and the right to possession of all assets . . . . While in 

possession of an institution . . . the commissioner or any receiver . . . may 

exercise any or all of the rights, powers, and authorities granted to the 

commissioner . . . .” (emphasis added)).

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a year and a half after the complaint was filed, 9 months after partial summary 

judgment was entered and only a few months before the case was scheduled 

for trial”). Finally, AWBM has never suggested the Post-Seizure Claim relies 

on previously unavailable information. Instead, it appears the theory of the 

case shifted from a pre-seizure deprivation to a post-seizure deprivation. Pater, 

646 F.3d at 1299 (explaining a plaintiff cannot simply wait until “the last 

minute to ascertain and refine the theories on which they intend to build their 

case” (quoting Evans, 936 F.2d at 1091)).

The district court thus did not err by declining to consider AWBM’s PostSeizure Claim, advanced for the first time at summary judgment. 

C

Finally, AWBM challenges the district court’s grant of summary 

judgment based on FIRREA’s Succession Clause. As we will explain, waiver 

forecloses this appellate challenge.

Appellees moved for summary judgment arguing, under the Succession 

Clause, the FDIC inherited the right to bring AWBM’s claims.15 Because 

15 When the FDIC is appointed as a receiver, FIRREA’s Succession 

Clause grants it “all rights, titles, powers, and privileges of the [Bank], and of 

any stockholder . . . of such [Bank] with respect to the [Bank] and the assets of 

the [Bank].” 12 U.S.C. § 1821(d)(2)(A)(i). Because we find AWBM waived any 

challenge to the district court’s Succession Clause analysis, we do not discuss 

this statute, or its proper interpretation, further.

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AWBM attempted to assert a claim belonging to the FDIC, Appellees 

contended AWBM lacked “standing.” R.III at 691. 

The district court held AWBM’s claims based on Commissioner Leary’s 

alleged misrepresentations during the state court possession proceedings were 

covered by FIRREA’s Succession Clause. Those claims, in the district court’s 

view, sought to assert rights of AWBM as the Bank’s “stockholder” with respect 

to the Bank and the Bank’s assets—and thus succeeded to the FDIC. R.III at 

696. The district court thus concluded AWBM lacked prudential standing. 

“Under the prudential standing doctrine, a party may not ‘rest its claims’ on 

the rights of third parties where it cannot ‘assert a valid right to relief of its 

own.’” Hill v. Warsewa, 947 F.3d 1305, 1309–10 (10th Cir. 2020) (quoting 

Wilderness Soc’y v. Kane County, 632 F.3d 1162, 1170 (10th Cir. 2011) (en 

banc)).

On appeal, AWBM insists it has prudential standing to bring the PostSeizure Claim. Opening Br. at 16 (“[T]he right of AWBM to seek redress for 

the violation of a constitutional right, and specifically here, the right to a postseizure hearing after the seizure of its property, must be regarded as beyond 

the scope of § 1821(d)(2)(A).” (emphasis added)). But AWBM’s appellate 

challenge is based on a fundamental misunderstanding of the district court’s 

ruling. 

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According to AWBM, the district court held it “lacked ‘prudential 

standing’ to assert any of its claims”—which AWBM takes to include the PostSeizure Claim. Opening Br. at 4 (emphasis added). But recall, the district court 

determined AWBM did not even allege a Post-Seizure Claim. R.III at 696 n.5 

(district court stating it “will not address the merits of [the Post-Seizure Claim] 

where it was never properly pleaded or briefed in response to the State’s motion 

[for summary judgment]”). When it comes to prudential standing, the district 

court considered only whether AWBM’s claims challenging Commissioner 

Leary’s alleged misrepresentations succeeded to the FDIC. And as Appellees 

persuasively argue, “nowhere in its opening brief does AWBM mention that

claim.” Resp. Br. at 46.

By failing to address the only prudential standing ruling the district 

court made—that the claim concerning Commissioner Leary’s alleged 

misrepresentations succeeded to the FDIC—AWBM has waived any appellate 

challenge to it. EEOC v. C.R. Eng., Inc., 644 F.3d 1028, 1050 n.18 (10th Cir. 

2011) (“Because [appellant] has failed to present any argument or authority in 

support of this particular . . . claim, we decline to further consider it on 

appeal.”).

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III

We AFFIRM the district court’s grant of summary judgment. 

Entered for the Court

Veronica S. Rossman

Circuit Judge

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