UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

 

BONNIE BAKER, individually, and on 

behalf of the Estate of Joel Baker, 

 Plaintiff-Appellant, 

v. 

ALLIED CHEMICAL CORPORATION; 

GENERAL CHEMICAL 

CORPORATION; HONEYWELL 

INTERNATIONAL, INC.; 

CONNECTICUT GENERAL LIFE 

INSURANCE COMPANY; GUARDIAN 

LIFE INSURANCE; JOHN DOES; 

JANE DOES, 

 Defendants-Appellees. 

No. 11-8110 

(D.C. No. 2:11-CV-00130-ABJ) 

(D. Wyo.)

 

ORDER AND JUDGMENT*

 

Before HARTZ, ANDERSON, and EBEL, Circuit Judges. 

 

 

*

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

unanimously that oral argument would not materially assist the determination 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 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 

November 29, 2012

Elisabeth A. Shumaker 

Clerk of Court
- 2 - 

 Bonnie Baker, proceeding pro se, appeals from several district court orders 

entered in favor of defendants. Exercising jurisdiction under 28 U.S.C. § 1291, we 

affirm. 

BACKGROUND 

 Ms. Baker’s husband, Joel Baker, was seriously injured in a work-related 

accident on September 8, 1975, resulting in him becoming a quadriplegic. He died 

from pneumonia more than thirty-three years after the accident. 

 His former employer, Allied Chemical Corp., allegedly provided group life 

insurance issued by Connecticut General Life Insurance Co. and Guardian Life 

Insurance Co. After his death, Ms. Baker, as heir and beneficiary, sought to collect 

the life insurance benefits. Connecticut General approved only a $2,000 payment, 

denying the remainder of the claimed amount. Guardian denied her claim in total. 

Thereafter, beginning her pattern of filings in the district court, Ms. Baker 

filed a lengthy complaint, with attachments, against Allied Chemical, General 

Chemical Corp., Honeywell International, Inc., Connecticut General, and Guardian. 

She referred to the Employee Retirement Income Security Act of 1974 (ERISA) and 

asserted various claims of theft, conversion, and misappropriation of life insurance 

benefits; personal injury and wrongful death; breach of contracts; fraud; and failure 

to deal in good faith. 
- 3 - 

Honeywell and its predecessor Allied Chemical moved to dismiss under 

Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim for relief.1

 They 

alleged, among other things, that (1) they were not proper parties to an ERISA claim 

because they were not the administrator of or decision-maker regarding the life 

insurance plan; and (2) all state-law claims were preempted by ERISA. They served 

the motion on Ms. Baker through the court’s electronic case filing system (ECF). 

Connecticut General also filed a Rule 12(b)(6) motion to dismiss, serving Ms. Baker 

the same way, and arguing that ERISA preempted the state-law claims. 

 Ms. Baker filed an amended complaint, asserting the same claims she asserted 

in the complaint. Allied Chemical, Honeywell, and Connecticut General moved to 

dismiss the amended complaint for the same reasons they asserted in their first 

motions. They served their motions on Ms. Baker by ECF. She responded to these 

motions several times over the course of the proceedings. 

The district court clerk’s office informed Ms. Baker that pro se parties may not 

file documents through ECF. After receiving this information, she filed notice that 

defendants had improperly served her by ECF, despite admitting that she used her 

PACER account to access the filings. Two days later, Ms. Baker filed notice that she 

would not file a motion to compel defendants to properly serve their previous filings 

 

1

 The motion to dismiss indicated that Allied Chemical was no longer an 

existing corporation, and Honeywell was its successor. 
- 4 - 

as they had begun to do so, although she later filed an amended notice that 

defendants failed to serve her properly. 

Thereafter, the magistrate judge granted Guardian’s request for an extension of 

time to file a response to the amended complaint. Ms. Baker twice opposed the 

extension. Like the other defendants, Guardian filed a Rule 12(b)(6) motion to 

dismiss asserting that ERISA is an exclusive remedy preempting Ms. Baker’s 

state-law claims. In responding to this motion, she asserted Guardian’s default, and 

asked for recusal of the magistrate judge. 

Soon after the parties held a telephone conference to plan for discovery as is 

required by Federal Rule of Civil Procedure 26(f), Ms. Baker filed notice of 

misrepresentations by defendants during the conference and asked that it be declared 

null and void. She also filed a motion to strike the motions to dismiss filed by 

Honeywell and Allied Chemical and by Connecticut General, alleging that their 

motions misrepresented facts. The next week, she filed a document allegedly 

showing that the parties’ telephone conference was null and void, because, among 

other reasons, no defendant had answered the complaint and defendants made 

misrepresentations during the conference. Defendants responded to these motions, 

and indicated that if Ms. Baker persisted with her filings they would seek sanctions 

against her under Federal Rule of Civil Procedure 11. 

Thereafter, Ms. Baker moved to amend her complaint to add claims for 

violation of the Racketeer Influenced and Corrupt Organizations Act (RICO), for 
- 5 - 

theft of the proceeds of an accidental death and dismemberment policy, and for 

violations of her constitutional rights. Her motion was missing three pages, and she 

did not attach a proposed amended complaint. 

Subsequently, Ms. Baker filed notice that she would be filing motions to strike 

defendants’ filings, to find Guardian and Connecticut General in default, to direct a 

verdict against Honeywell and Allied Chemical, and to recuse the magistrate judge. 

The next week, she filed a motion asking the court to appoint her as personal 

representative of her deceased husband’s estate and notifying the court that she 

intended to file motions asserting that Guardian and Connecticut General were in 

default and that the court should strike all defendants’ motions to dismiss based on 

their alleged misconduct, misrepresentations, and due process violations. Three days 

later, Ms. Baker filed a notice that she may need to add additional defendants. And, 

thereafter, she filed a motion asking the magistrate judge to self-assess his ability to 

act impartially with respect to a pro se plaintiff. 

On October 28, 2011, the district court entered three orders. The first order 

granted Ms. Baker’s request that all dispositive motions and proceedings be heard by 

the district court, rather than a magistrate judge. The second order denied her motion 

to have the informal Rule 26(f) conference declared null and void, as she had an 

obligation to comply with the Federal Rules of Civil Procedure and local court rules 

and cooperate in the discovery process despite the fact that there were dispositive 

motions pending. The court noted that Ms. Baker had failed to meaningfully engage 
- 6 - 

in the process and instead had barraged the court and defendants with numerous 

meaningless and frivolous pleadings irrelevant to the issues raised in the pending 

dispositive motions. The court advised her against continuing to proceed in this 

manner. In the third order, the court denied any motions seeking to recuse the 

magistrate judge, pointing out that Ms. Baker failed to support her submission with 

discussion of the applicable law or meaningful argument and that most of her 

complaints were about adverse rulings. 

Thereafter, Ms. Baker continued with her filings, including a motion to strike 

her motion to amend and to replace it with a complete document that was not missing 

any pages. 

The district court granted defendants’ motions to dismiss. First, the court 

found that Ms. Baker sought payment of benefits from the insurance policies and 

therefore all state-law claims are related to ERISA and must be dismissed with 

prejudice because they are preempted by ERISA. Further, the court found that 

Honeywell2

 was not a proper defendant because it was an employer or sponsor of the 

plan, and not the plan itself or an entity that possessed decision-making authority or 

controlled administration of the plan. Based on these findings, the court dismissed 

all claims against Honeywell, General Chemical, and Allied Chemical with prejudice. 

Recognizing that Connecticut General and Guardian had not sought dismissal of 

 

2

 The court referred to Allied Chemical, General Chemical, and Honeywell 

interchangeably and regarded all three as Mr. Baker’s employer. 
- 7 - 

Ms. Baker’s ERISA claims, the court stated those claims would be decided in future 

proceedings. The court found that Guardian had not defaulted, because it had been 

granted an extension of time to file an answer and it had filed a motion to dismiss 

within that time period. Lastly, the court advised Ms. Baker to comply with the 

Federal Rules of Civil Procedure and local court rules and to limit her submissions 

accordingly or they might be dismissed without notice if they asserted claims that 

were unwarranted by existing law, were frivolous, or would increase delay or the 

expense of litigation. 

In four separate orders, the court (1) denied Ms. Baker’s request to amend her 

complaint as futile and causing unnecessary delay because she sought to add claims 

that would be preempted by ERISA; (2) denied as moot her request to withdraw the 

motion to strike the motion to amend that contained insufficient pages and replace it 

with a motion to amend containing all pages; (3) denied as frivolous and vexatious 

her motion seeking to strike various filings of defendants; and (4) granted her motion 

to recognize her as her husband’s personal representative, but denied the motion to 

the extent it raised other claims, which the court deemed irrelevant, groundless, 

frivolous, and not in compliance with court rules. 

Ms. Baker then filed two separate notices opposing all of the court’s orders 

and asserting that the court was biased and prejudiced. The court struck both notices 

and dismissed the case with prejudice under Federal Rule of Civil Procedure 41(b), 

which permits dismissal for failure to comply with court orders or the Federal Rules 
- 8 - 

of Civil Procedure. Characterizing the notices as bordering on scurrilous, the court 

found that they were not supported by legal authority. The court determined that 

Ms. Baker had waived any ERISA claims and therefore there were no remaining 

claims. Further, the court observed that despite prior warnings she had failed to 

comply with procedural rules and persisted in filing vexatious, frivolous, and 

unsupported pleadings that were designed to unnecessarily delay, harass, or increase 

litigation costs. 

ANALYSIS 

 Ms. Baker asks this court to reverse all district court orders because she 

believes she did not receive a fair hearing. Specifically, she asserts that 

(1) defendants caused a tortured procedural case history due to their failure to serve 

her properly and their misrepresentations; (2) the court was biased and prejudiced 

due to defendants’ conduct, and the court wrongly attributed the tortured procedural 

history to her; (3) the court’s orders are erroneous and factually unsupported; (4) the 

court wrongly denied her an opportunity to file an amended complaint and to correct 

the motion to file an amended complaint; and (5) the court should have determined 

that Guardian defaulted. 

Before addressing Ms. Baker’s arguments, we set forth the parameters of our 

review of her pro se pleadings. We liberally construe her pleadings, but insist that 

she follow the rules of procedure. See Garrett v. Selby Connor Maddux & Janer, 

425 F.3d 836, 840 (10th Cir. 2005). “[W]e make some allowances for [her] failure to 
- 9 - 

cite proper legal authority, h[er] confusion of various legal theories, h[er] poor syntax 

and sentence construction, or h[er] unfamiliarity with pleading requirements.” Id. 

But we “cannot take on the responsibility of serving as [her] attorney in constructing 

arguments and searching the record.” Id. 

 Bearing these parameters in mind, we now consider Ms. Baker’s first argument 

that defendants failed to serve their initial filings on her by mailing through the 

United States Postal Service as they were required to do, since she, as a pro se 

litigant, was not allowed to file court documents electronically. It is true that 

defendants (other than Guardian) served their motions to dismiss and other initial 

pleadings electronically. But Ms. Baker concedes she was able to respond to the 

filings because she had a PACER account and was aware of the filings. Despite her 

allegation that she rushed to meet her filing deadline to respond to the motions to 

dismiss of Allied Chemical, Honeywell and Connecticut General, she does not 

indicate what further research she would have done or how she would have 

responded differently if she had had more time to respond. Nor did she ask the 

district court for an extension of time to file her responses. Furthermore, she filed 

several other responses to the motions to dismiss, which could have, but did not, 

contain additional legal authority or helpful argument. Accordingly, we conclude 

there was no legal error. Ms. Baker also contends that defendants made false 

misrepresentations, but her assertions of misrepresentations by the defendants are 

conclusory and unsupported. 
- 10 - 

 Second, Ms. Baker argues that the district court was biased because the court 

wrongly attributed the tortured case procedures to her. She contends the court’s 

orders beginning on October 28, 2011, evidence the court’s bias. We disagree. This 

case is not an exception to the general view that a court’s orders are not a basis for an 

allegation of bias. See Liteky v. United States, 510 U.S. 540, 555 (1994). Nothing in 

the district court proceedings supports a determination of bias, as the court exhibited 

no favoritism or antagonism that would preclude the court from entering a fair 

judgment. See id. Indeed, our review of the record convinces us no reasonable 

person would question the court’s impartiality. See United States v. Cooley, 1 F.3d 

985, 992-93 (10th Cir. 1993). If anything, the court exercised much patience in 

allowing Ms. Baker latitude to file many pleadings. Accordingly, we conclude that 

the court did not abuse its discretion in declining to recuse. See Hinman v. Rogers, 

831 F.2d 937, 938 (10th Cir. 1987) (per curiam). 

Third, Ms. Baker argues that the district court’s orders are erroneous and 

factually unsupported. Although Ms. Baker states that she challenges each of the 

district court’s orders, she has not asserted specific claims regarding each order. 

Nonetheless, we have reviewed the record and relevant law, and we conclude that the 

district court’s orders are not erroneous and are factually supported. We specifically 

address only the two dismissal orders. 

We review the district court’s Rule 41(b) dismissal order for an abuse of 

discretion. See Gripe v. City of Enid, Okla., 312 F.3d 1184, 1188 (10th Cir. 2002). 
- 11 - 

Before dismissing under Rule 41(b), the district court appropriately considered, on 

the record, certain factors: (1) the amount of prejudice to defendants; (2) plaintiff’s 

interference with the judicial process; (3) plaintiff’s culpability; (4) warnings of the 

court that dismissal is a likely sanction for noncompliance; and (5) the possibility of 

lesser sanctions. See id. (citing Ehrenhaus v. Reynolds, 965 F.2d 916, 921 (10th Cir. 

1992)). Upon review of the entire record, we conclude the district court acted within 

its discretion in dismissing under Rule 41(b). Ms. Baker’s litigiousness prejudiced 

defendants by causing them to respond to numerous motions and to incur attorney’s 

fees. Ms. Baker willfully and repeatedly failed to comply with the court’s orders to 

follow court rules, even doing so after the district court notified her that 

noncompliance with the rules might result in dismissal of the case without hearing or 

notice. Because Ms. Baker stated that she was not raising any ERISA claims, lesser 

sanctions would not have been appropriate. Thus, the record supports a 

determination that all five factors were established and Rule 41(b) dismissal was 

appropriate. 

We review the district court’s Rule 12(b)(6) dismissal for failure to state a 

claim for relief de novo. See Khalik v. United Air Lines, 671 F.3d 1188, 1190 

(10th Cir. 2012). Under Federal Rule of Civil Procedure 8(a)(2), a pleading stating a 

claim for relief must contain “a short and plain statement of the claim showing that 

the pleader is entitled to relief.” “To survive a motion to dismiss, a complaint must 

contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is 
- 12 - 

plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. 

Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility when 

the plaintiff pleads factual content that allows the court to draw the reasonable 

inference that the defendant is liable for the misconduct alleged.” Id. In addition to 

the complaint, federal courts also consider the attachments to the complaint. See Gee 

v. Pacheco, 627 F.3d 1178, 1186 (10th Cir. 2010). The district court applied these 

standards. For the reasons stated by the district court, it is clear that Ms. Baker 

cannot state a plausible claim (1) against Honeywell or Allied Chemical because her 

state-law claims are preempted under ERISA and these two entities are not proper 

defendants under ERISA; and (2) against Connecticut General and Guardian because 

her state-law claims are preempted under ERISA. See R. at 1206-12. 

 Fourth, Ms. Baker argues the district court should have permitted her to file a 

second amended complaint and to add the three pages left out of her motion to file a 

second amended complaint. The district court denied leave to amend as futile 

because Ms. Baker sought to add claims that were preempted by ERISA. We review 

the district court’s decision denying leave to amend for an abuse of discretion, but we 

review the court’s finding of futility de novo. Miller ex rel. S.M. v. Bd. of Educ. of 

Albuquerque Pub. Sch., 565 F.3d 1232, 1249 (10th Cir. 2009). As the district court 

found, it is clear that amendment would have been futile. In light of Ms. Baker’s 

repeated statement that this is not an ERISA case and the fact that she cannot prevail 

on the facts she has alleged, it would have been futile to allow her an opportunity to 
- 13 - 

amend to add claims preempted by ERISA. See Gee, 627 F.3d at 1195. Nor can she 

state a plausible claim against defendants under RICO or the Constitution. Thus, the 

court did not abuse its discretion. 

 Lastly, Ms. Baker’s argument that Guardian defaulted is without legal merit. 

As the district court found, Guardian filed a timely motion to dismiss. See R. at 

1216-17. 

CONCLUSION 

 We conclude that all arguments made by Ms. Baker, either addressed in this 

order and judgment explicitly or not, are without legal merit. Thus, the judgment of 

the district court is AFFIRMED. Ms. Baker’s motion for this court to take judicial 

notice of two unrelated Wyoming federal district court actions and her request for 

leave to apply to the district court for a certificate of appealability are DENIED as 

moot.3

 

 Entered for the Court 

 Stephen H. Anderson 

 Circuit Judge 

 

3

 In prior orders, this court informed Ms. Baker that a certificate of appealability 

was unnecessary.