* This order and judgment is not binding precedent, e xcept under the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

### MAR 20 2000 

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

RICHARD E. NORTON and CAROLYN A. NORTON,

Plaintiffs-Appellants,

v. STEPHEN CURTIS; BOYD MAZER; CARMEN MAZER,

Defendants-Appellees, and WESTSTAR ESCROW CO.,

Defendant. No. 99-2116 (D.C. No. CIV-95-679/DJS/LCS)

(D. N.M.)

ORDER AND JUDGMENT *

Before BALDOCK , HENRY , and MURPHY , Circuit Judges.1 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)(2); 10th Cir. R. 34.1(G). T he case is therefore ordered submitted without oral argument. -2- This diversity action arises out of a dispute betwe en the buyers and the sellers of a mobile home park in New Mexico. 1 Plaintiffs Richard and Carolyn Norton purchased the property in November 1993 fromdefendants Boyd and Carmen Mazer, who were represented in the transacti on and subsequent proceedings by attorney Stephen Curtis. Weststar E scrow Co. acted as the escrow agent for the transaction. Under the terms of the contract, in addition to mak ing payments on the purchase of the property, the Nortons were requiredto contribute money to two reserve accounts subject to joint control of the No rtons and Mazers. The contract provided that if the Nortons defaulted on any of va rious provisions in the contract, the Mazers could send them written notice , and if the Nortons failed to cure the default within thirty days, the Mazers cou ld either declare due and payable all amounts remaining to be paid under the contract or terminate the Nortons’ rights to the property and retain all sums previously paid as liquidated damages. If the Mazers elected to terminate the No rtons’ rights to the property, the contract provided that a recordable affidavit o f uncured default delivered to the escrow agent “shall be conclusive proof for the Escrow Agent and any-3-

subsequent Purchaser or encumbrancer for value of s uch uncured default and election of termination.” R. Vol. I, Doc. 3, Ex. A at 11. Among the documents held by Weststar was a special warranty deed execut ed by the Nortons to the Mazers, and the contact provided that “[i]f the Sel lers or their agents deliver an Affidavit of Uncured Default and Election of Ter mination . . . to the Escrow Agent, then the Escrow Agent shall release and deli ver the escrow documents to the Sellers. The Escrow Agent shall be entitled to rely on such Affidavit as conclusive proof of termination.” Id. at 13. In 1994, Carmen Mazer audited the mobile home park’ s books to see if the Nortons were making appropriate payments into the two reserve accounts. Based on the results of Carmen’s audit, Curtis senta demand letter to the Nortons stating that they were in default and requesting th at they cure the default. The Nortons disputed the results of the audit and attempted to work with the Mazers and Curtis to resolve the dispute. As part of the effort to resolve the dispute, the Nortons worked out an agreement with Curtis, whereb y the Mazers would forbear exercising their termination rights under the contr act for each week that the Nortons paid $5,000 into Curtis’ trust account. OnApril 27, 1995, Curtis sent the Nortons a letter setting forth what he believed to be the terms of the agreement they had reached. The Nortons did not agree with a ll the terms in the letter, including that the weekly amounts paid would be for feited if the default was not-4-

cured. Nonetheless, the Nortons made the weekly payments to stave off litigation with the Mazers. In June 1995, the Nortons learnedthat Curtis had withdrawn some of the money from the trust account to pay his attorney fees, and that he intended to do so again. They then refused to make any further payments and sent Curtis a letter demanding that he return all their money, which by then totaled $35,000. Curtis did not return the money. Once th e Nortons stopped making the weekly payments, the Mazers recorded an affidavit o f uncured default, served a copy on Weststar, and demanded that Weststar releas e the escrow documents to them. On June 26, 1995, everyone filed suit. Weststar fi led an interpleader action in state court naming both the Mazers and the Norto ns as defendants. Curtis filed an action in state court on behalf of the Mazers ag ainst Weststar. Richard Norton filed the present diversity action in federal court , protesting the Mazers’ attempts to declare a default under the contract based on a faulty audit and Curtis’ actions with regard to the money paid into his trust accoun t. The next day, Curtis sought a preliminary injunction in the Mazers’ state courtaction requiring Weststar to release the escrow documents to the Mazers. The st ate court was informed that the Nortons disputed the underlying default and that Weststar had filed an interpleader action, but Curtis argued that the con tract provisions regarding release of the escrow documents were mandatory once the Mazers presented2 The Nortons also alleged claims against Weststar, b ut none of those claims

is at issue on appeal. -5- Weststar with the recorded affidavit of uncured def ault. The state court agreed and ordered Weststar to release the documents to th e Mazers. Once Weststar released the escrow documents, it dismissed its int erpleader action. The Mazers also dismissed their action against Weststar. Rich ard Norton made no attempt to seek relief from the state court ruling in state co urt. Instead, he amended his complaint in the present action to seek additional relief related to the state court proceedings. Carolyn Norton later joined the present action as aparty-plaintiff and in their third amended complaint, the Nortons alleged two federal and eleven state claims against the Mazers and Curtis: 1) illegal s eizure of property without due process in violation of 42 U.S.C. § 1983; 2) da mage to business reputation through state action in violation of 42 U.S.C. § 19 83; 3) breach of contract; 4) breach of fiduciary duty; 5) fraud and fraudulen t misrepresentation; 6) negligence and negligent misrepresentation; 7) c ivil conspiracy; 8) breach of the implied covenant of good faith and fair deal ing; 9) prima facie tort; 10) conversion; 11) interference with business relations; 12) defamation; and 13) promissory estoppel. 2 The district court granted summary judgment to Cu rtis on the two § 1983 claims, concluding there was no s howing he acted under color-6-

of state law. The court also granted Curtis summary judgment on the claims for interference with business relations and defamation . The Nortons stipulated to the dismissal of their claims against the Mazers fo r interference with business relations and defamation, and the Mazers moved for partial summary judgment on the remaining claims, except those for breach of contract, breach of the implied covenant of good faith and fair dealing, an d promissory estoppel. The district court granted the Mazers’ partial summary judgment motion ten months later, after the Nortons failed to respond. The ca se then proceeded to trial against the Mazers on three remaining claims and against Cu rtis on nine remaining claims. The Nortons lost on all claims at trial. The Nortons now appeal, raising three issues. Firs t, they contend that the preliminary injunction issued by the state court wa s void because it was entered in violation of state and federal law. Second, the y contend that the Mazers’ seizure of the mobile home park through the state c ourt preliminary injunction violated their right to due process. Finally, the Nortons contend that the district court abused its discretion in granting the Mazers’ motion for partial summary judgment based on the Nortons’ failure to file a re sponse to the motion. Our resolution of the Nortons’ first argument is hi ndered by the fact that they fail to state where in the record this issue w as raised and ruled on, as required by 10th Cir. R. 28.2(C)(2). Our review of the record shows the Nortons-7-

did not seek any declaratory relief in their third amended complaint. The Nortons did raise the validity of the state court injunctio n in a motion seeking judgment as a matter of law on what the Nortons termed the defe ndants’ affirmative defenses, but they fail to explain how the district court’s r efusal to declare the state court judgment void affected their claims. In any event, the district court had no jurisdictio n to review the validity of the state court judgment. “The Rooker-Feldman doct rine bars ‘a party losing in state court . . . from seeking what in substance wo uld be appellate review of the state judgment in a United States district court, b ased on the losing party’s claim that the state judgment itself violates the loser’s federal rights.’” Kiowa Indian Tribe v. Hoover , 150 F.3d 1163, 1169 (10th Cir. 1998) (quoting Johnson v. De Grandy , 512 U.S. 997, 1005-06 (1994) (alteration in original); see also Van Sickle v. Holloway , 791 F.2d 1431, 1436 (10th Cir. 1986) (“Federal di strict courts do not have jurisdiction over challenges to state-court decisions in particular cases arising out of judicial proceeding s even if those challenges allege that the state court’s action was unconstitutional. ” (quotation omitted)). “Generally, a federal district court cannot review matters actually decided by a state court, nor can it issue any declaratory rel ief that is inextricably intertwined with the state court judgment.” Kiowa Indian Tribe , 150 F.3d at 1169 (citation and quotations omitted).-8-

We turn, then to the Nortons’ contention that the M azers’ seizure of the mobile home park through the state court proceeding s violated the Nortons’ right to notice and an opportunity to be heard. Again, t he Nortons fail to tell us where this issue was raised and ruled on in the district court. Therefore, we are left once again to guess as best we can what particular ruling of the district court the Nortons are challenging. To the extent the Nortons are attempting to challenge the district court’s failure to declare the state c ourt proceedings invalid, the Nortons’ challenge fails for the same reasons state d above. To the extent the Nortons are attempting to challenge the district co urt’s disposition of their § 1983 due process claims against the Mazers and Curtis, t heir challenge fails because they have made no showing of state action necessaryto establish a § 1983 claim. One of the elements a plaintiff must prove to estab lish a § 1983 claim is that the defendant acted under color of state law. See Adickes v. S. H. Kress & Co. , 398 U.S. 144, 150 (1970). Even if we assume thatthe state court proceedings violated the Nortons’ right to due proc ess, “there still must be action ‘under color of law’ to make [their] claim cognizab le under 42 U.S.C. § 1983.” Torres v. First State Bank , 588 F.2d 1322, 1325 (10th Cir. 1978). In Torres , we held that a private party’s use of a state courtto obtain an ex parte order, even if it violated the § 1983 plaintiff’s right to due process, was not sufficient to establish state action. Id. at 1325-26. The Nortons made no showing in distri ct-9-

court that either Curtis or the Mazers acted under color of state law, and they make no argument regarding state action on appeal. Therefore, to the extent the Nortons are attempting to challenge the disposition of their § 1983 due process claims, their challenge is without merit. The Nortons’ final challenge is to the district cou rt’s disposition of the Mazers’ motion for partial summary judgment. The d istrict court granted the motion in accordance with D.N.M. LR-Civ. 7.5(b) whi ch provides that the “[f]ailure to serve (or file, if required by these rules) a response in opposition to any motion constitutes consent to grant the motion. ” When a district court deems a summary judgment motion confessed due to a party’ s failure to respond, we review that ruling for an abuse of discretion. See Miller v. Department of Treasury , 934 F.2d 1161, 1162 (10th Cir. 1991). In determi ning whether the district court abused its discretion, we consider t hree factors: “(1) the degree of actual prejudice to the defendant; (2) the amount o f interference with the judicial process; and (3) the culpability of the litigant.” Id. “[O]nly when these aggravating factors outweigh[] the judicial system’ s strong predisposition to resolve cases on their merits” is it appropriate to deem a summary judgment motion confessed for failure to respond. Id. (quotation omitted). The record shows that the Mazers filed their motion for partial summary judgment on May 8, 1997. On June 20, 1997, the Maz ers filed a reply,-10-

suggesting, as the Nortons contend on appeal, that the Nortons prepared a response which they served on the Mazers. The No rtons failed to file any response with the court, however. Pursuant to D.N. M. LR-Civ. 7.4(c) and 7.6(a), the Nortons were required to both file and serve onall parties a response to the Mazers’ summary judgment motion within fourteen day s of service of the motion. Trial in the case was set for April 6, 1998. On orabout March 16, the court contacted Richard Norton by phone “and informed him that he had failed to file a response and requested that it be filed immediate ly as the case was set for trial in three weeks.” R. Vol. V, Doc. 201 at 1. When t he Nortons still had not filed a response a week later, the court entered its orde r granting the motion pursuant to D.N.M. LR-Civ. 7.5(b). On March 25, 1998, the N ortons and Curtis filed a joint motion to have the April 6 trial date vacat ed, which the court granted. The trial was eventually rescheduled to begin March 8, 1999. On March 2, 1999, less than one week before the new trial date, and almost one year after the district court granted the Mazer s’ motion for partial summary judgment, the Nortons filed a motion under Fed. R. Civ. P. 60(b) seeking to set aside the grant of partial summary judgment. As gr ounds for their motion, the Nortons contended that they had served a response t o the motion on the Mazers and they believed the Mazers’ attorney had provided a copy of that response to the court before its March 23 order. The Nortons a lso contended that they-11-

received no written notification of their failure t o file a response and they could not recall any telephonic notice from the court. F inally, the Nortons argued that material issues of fact existed that would preclude a grant of summary judgment on the merits, as evidenced by their own summary ju dgment motion filed the day before the Mazers’ motion. The Nortons filed theirresponse to the partial summary judgment motion in conjunction with their Rule 60(b) motion, but they provided no explanation for their failure to file aresponse before that time. The district court denied the Nortons’ Rule 60(b) m otion. The court concluded that the motion, filed on the eve of tria l, was not filed within a reasonable time. Moreover, the court concluded t hat the Nortons had not shown excusable neglect or any other reason justifying re lief from judgment under Rule 60(b). The Nortons do not appeal the districtcourt’s denial of their Rule 60(b) motion; they appeal only the initial gra nt of partial summary judgment. Nonetheless, their statements in the Rule 60(b) mot ion are relevant to our assessment of the three aggravating factors. Based upon our assessment of those factors, we conc lude the district court did not abuse its discretion in granting the motion for partial summary judgment. First, the Mazers suffered actual prejudice from th e Nortons’ delay. Although the Mazers filed their motion almost eleven months befo re trial, the Nortons’ delay required the Mazers to wait until two weeks before trial to know whether the-12-

scope of the trial would be limited to only three c ontract-related claims or would include a host of other non-contract claims. Simil arly, the Nortons’ failure to respond during the ten months preceding trial inter fered with the judicial process, as did their failure to seek any relief from the ju dgment for almost a year, until the eve of the rescheduled trial. Finally, the Nortons appear to be entirely culpable for the delay. Although they were proceed ing pro se, the record shows that Richard Norton was a practicing attorney in Ne w Mexico for many years and the volume of pleadings filed by the Nortons shows that they were well aware of the procedural requirements for responding to motio ns. Further, the Nortons waited almost a year to seek relief from the judgme nt and then they offered no explanation for their previous failure to file a re sponse. Under the circumstances, we conclude the district court did not abuse its di scretion in granting the Mazers’ motion for partial summary judgment.-13-

The judgment of the United States District Court fo r the District of New Mexico is AFFIRMED.

Entered for the Court

Michael R. Murphy Circuit Judge