* This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and collateral estoppel. The court

generally disfavors the citation of orders and judgments; nevertheless, an order

and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.

F I L E D

United States Court of Appeals

Tenth Circuit

JUL 13 2000

PATRICK FISHER

Clerk

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

J.O. TOBIN, LTD., a Horse Syndicate

of the Commonwealth of Kentucky,

Plaintiff-Appellant,

v.

CROWN WEST FARMS, INC.,

a Canadian corporation; BRIAN

KOZACK; LEROY BROWN;

KAREN BROWN,

Defendants-Appellees.

No. 99-2261

(D.C. No. CIV-97-1706)

(D. N.M.)

ORDER AND JUDGMENT *

Before BRORBY , ANDERSON , and MURPHY , Circuit Judges.

After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore

ordered submitted without oral argument.
-2-

Plaintiff appeals from the district court ’s order dismissing its amended

complaint without prejudice. Pla intiff contends that the dismissal was bas ed on

its alleged failure to comply with a local rule allowing fourteen days to respond

to a motion to dismiss served on it by defendants Crown West Farms, Inc. and

Brian Kozak (Crown & Kozak). It asserts error due to the district court ’s failure

to consider the factors set out in Murray v. Archambo , 132 F.3d 609, 611

(10th Cir. 1998), and an unidentified conflict with the Federal Rules of Civil

Procedure. Plaintiff alleges irreparable prejudice because the statute of

limitations has now run on its claims against defendants.

Plaintiff also contends that it did not violate the local rule in question,

D.N.M. Local Rule 7.6, on the theory that the allowed time for response could

have run from the magistrate judge’s ruling granting defendants Crown &

Kozak’s motion for extension of time to respond, despite the fact that the ruling

acknowledged the motion to dismiss had been filed earlier and stated that the

court deemed the motion to dismiss a timely response to the amended complaint. 

See Appellant’s App., tab 14. Based on its contention that its response to the

motion was timely, plaintiff also argues that the district court was “statutorily and

constitutionally” required to consider its response to the motion to dismiss before

ruling. See Appellant’s Br. at 7. Finally, plaintiff argues that the district court
2 The jurisdictional defects complained of included personal jurisdiction over

defendants generally and under RICO specifically, improper venue, failure to

state a claim under RICO, failure to allege required specific elements under

RICO, and lack of standing. See Appellant’s App., tab 18, at 1-2.

-3-

could not have dismissed its complaint as to defendants Lee Roy and Karen

Brown because they did not join the motion to dismiss.

All of these arguments are foreclosed by the district court ’s ruling granting

defendants Crown & Kozak’s motion to dismiss. The ruling concludes that

plaintiff’s response to the motion to dismiss was untimely and therefore in

violation of the local rule in question. However, it also concludes, based on the

district court ’s review of the motion and relevant law, “that the jurisdictional

defects complained of are well founded and that the motion is generally well

taken.” 2 Appellant’s App., tab 18, at 2. Because plaintiff does not challenge the

district court ’s conclusion that the amended complaint was jurisdictionally

defective, its arguments on appeal cannot prevail. See Murrell v. Shalala , 43 F.3d

1388, 1390 (10th Cir. 1994). The court’s jurisdictional ruling is an independent

and alternative basis for dismissal which supports the court’s dismissal of the

amended complaint as to all defendants.
-4-

The judgment of the United States District Court for the District of

New Mexico is AFFIRMED.

Entered for the Court

Stephen H. Anderson

Circuit Judge