* This order and judgment is not binding precedent, e xcept under the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 8 2001 

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

BIOGENICS, INC., a Utah corporation, Plaintiff-Counter-ClaimDefendant-Appellee,

v. GAIUS KAZEN, an individual; DONNA KAZEN, an individual; THE POPULAR ASSEMBLY OF SOVEREIGN KAZENS, also known as P.A.S.K., an artificial business entity, Defendants-CounterClaimants-Appellants, and UNITED STATES OF AMERICA, a sovereign, Additional adverse claimant to Interpleaded Res,

Defendant. No. 99-4146 (D.C. No. 96-CV-892-B) (D. Utah)

ORDER AND JUDGMENT *-2-

Before HENRY , BRISCOE , and MURPHY , Circuit Judges.

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. Plaintiff Biogenics, Inc., referred to in these pro ceedings as E’ola, filed suit against defendants Gaius Kazen, Donna Kazen and The Popular Assembly of Sovereign Kazens, also known as P.A.S.K. Defendant s filed counterclaims against plaintiff. The United States was brought i nto the suit by interpleader because it claims an interest in monies owed from p laintiff to defendants. Federal jurisdiction is based on diversity of citizenship, federal question and the federal government’s tax claim. See 28 U.S.C. §§ 1331, 1332, 1346. Plaintiff’s claims against defendants are not before us. The districtcourt granted summary judgment in plaintiff’s favor on defendants’ counte rclaims and certified the case for appeal, pursuant to Fed. R. Civ. P. 54(b), leav ing for later resolution the interpleader claims. Defendants appeal the distric t court’s summary judgment on their counterclaims. Our jurisdiction arises from 28 U.S.C. § 1291.-3-

We do not repeat the district court’s recitation of the underlying facts. Briefly, E’ola entered into an agreement for distri bution of its nutritional and beauty products with Gaius Kazen and Donna Kazen as part of a multilevel marketing system. Later, in 1996, the Kazens forme d P.A.S.K., a corporate entity, and assigned their E’ola distributorship to it. The business relationship between plaintiff and defendants ended when E’ola t erminated it, invoking the Policies and Procedures Manual and the Distributor Agreement between the parties. Defendants challenge the district court’s rulings on their claims that E’ola breached the distributorship agreement and th at they were otherwise damaged. E’ola has filed a motion to dismiss the claims of D onna Kazen and P.A.S.K. on the ground that they have not filed bri efs in this appeal, pursuant to Fed. R. App. P. 31(c). After the notice of appeal was filed by defendants’ attorney, the attorney was granted leave to withdraw. The appellate briefs were signed only by Mr. Kazen, pro se. Mr. Kazen is nota licensed attorney. Therefore, he may not represent Donna Kazen or P.A.S.K. in this appeal. See Rowland v. California Men’s Colony , 506 U.S. 194, 201-02 (1993) (reiterating long-standing rule that “a corporation may appear i n the federal courts only through licensed counsel”); cf. Valley Forge Christian Coll. v. Ams. United for Separation of Church & State, Inc., 454 U.S. 464, 474 (1982) (holding party can1 In his reply brief, Mr. Kazen attempts to include a dditional issues, in effect

challenging all of the district court’s holdings. We decline to address the expanded issues for two reasons: (1) we generally do not address matters raised for the first time in the reply brief, Lyons v. Jefferson Bank & Trust , 994 F.2d 716, 724 (10th Cir. 1993), and (2) Mr. Kazen has no t presented any argument or authority to support the expanded issues other thanto reiterate his version of the (continued...) -4- assert only his own legal rights and cannot rest hi s claim on rights of others). The motion to dismiss the claims of Donna Kazen and P.A .S.K. is granted, although we note that the issues raised in Mr. Kazen’s openi ng brief affect only him. We review de novo the district court’s grant of sum mary judgment, viewing the record in the light most favorable to the party opposing summary judgment. McKnight v. Kimberly Clark Corp. , 149 F.3d 1125, 1128 (10th Cir. 1998). Summary judgment is appropriate if there is no genu ine issue of material fact and the moving party is entitled to judgment as a matte r of law. Celotex Corp. v.
Catrett , 477 U.S. 317, 322 (1986); Fed. R. Civ. P. 56(c). There is no dispute that Utah state law controls the issues raised here base d on diversity. We must reach the same conclusion the state’s highest court wouldreach. Blanke v. Alexander , 152 F.3d 1224, 1228 (10th Cir. 1998). In applying Utah law, we afford no deference to the district court’s legal rulings. S ee Salve Regina Coll. v. Russell , 499 U.S. 225, 238-39 (1991). Mr. Kazen raises two issues on appeal: (1) E’ola p laced undue hardship on him by unlawfully depriving him of his business, and (2) E’ola slandered him. 11 (...continued)

underlying facts, Phillips v. Calhoun , 956 F.2d 949, 953-54 (10th Cir. 1992) (party must support argument with legal authority). -5- The undue hardship claim apparently is presented fo r the first time in this appeal so we do not address it. SEC v. Thomas , 965 F.2d 825, 827 (10th Cir. 1992) (party challenging judgment must provide references to record to carry burden of proving error); Rademacher v. Colo. Ass’n of Soil C onservation Dists. Med. Benefits Plan , 11 F.3d 1567, 1572 (10th Cir. 1993) (this court g enerally will not consider issue on appeal not raised in district cou rt). Mr. Kazen’s pro se status “does not excuse the obligation of any litigant to comply with the fundamental requirements of the Federal Rules of Civil and Appellate Procedure.” Ogden v. San Juan County , 32 F.3d 452, 455 (10th Cir. 1994) (citation omitt ed). Moreover, Mr. Kazen has not presented any authoritythat Utah law recognizes a cause of action for undue hardship cau sed by unlawfully depriving one of his business. “Despite the liberal construc tion afforded pro se litigants, the court will not construct arguments or theories” for a pro se litigant. Drake v. City of Fort Collins , 927 F.2d 1156, 1159 (10th Cir. 1991) (citation om itted). To the extent his claim of undue hardship for lost business challenges the district court’s ruling on his claim of intentional interfer ence with prospective economic relations, we affirm that court’s ruling for substa ntially the same reasons given in-6-

its December 7, 1998 memorandum opinion and order. R. Vol. V, doc. 117, at
10-11. Turning to Mr. Kazen’s other issue, his slander cla im is based on a letter dated November 12, 1996 from E’ola to its distribut ors. The district court correctly characterized this claim as one for defam ation and granted summary judgment in favor of E’ola. We affirm the summary judgment for substantially the same reasons given by the district court. Id. doc. 117, at 11-12. The motion to dismiss the claims of Donna Kazen andP.A.S.K. is granted. The judgment of the United States District Court fo r the District of Utah is AFFIRMED. The mandate shall issue forthwith.

Entered for the Court

Michael R. Murphy Circuit Judge