UNITED STATES CO URT 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 appella te record, this pa nel has determined unanimously that oral argument would not mate rially assist the de termination 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 This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel. It may be cite d, however, for its persuasi ve 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, appeal s from several district court orders entered in favor of defendant s. Exercising jurisdiction un der 28 U.S.C. § 1291, we affirm. BACKGROUND Ms. Baker’s husband, Joel Baker, wa s seriously injured in a work-related accident on September 8, 1975, resulting in him becoming a quadriplegic. He died from pneumonia more than thirty-thr ee years after the accident. His former employer, Allied Chemi cal Corp., allegedly provided group life insurance issued by Connectic ut General Life Insuranc e Co. and Guardian Life Insurance Co. After his death, Ms. Baker, as heir and be neficiary, 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 fili ngs in the district court, Ms. Baker filed a lengthy complaint, with attachme nts, against Allied Chemical, General Chemical Corp., Honeywell Inte rnational, 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 misappr opriation of life insurance benefits; personal injury and wrongful death; breach of c ontracts; fraud; and failure to deal in good faith.- 3 - Honeywell and its predecessor Allied Chemical moved to dismiss under Federal Rule of Civil Pro cedure 12(b)(6) for failure to state a claim for relief. 1 They alleged, among other things, th at (1) they were not proper parties to an ERISA claim because they were not the administrator of or decisi on-maker regarding the life insurance plan; and (2) all st ate-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 file d 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 cl aims she asserted in the complaint. Allied Chemical, Hone ywell, and Connecticut General moved to dismiss the amended complaint for the same reasons they assert ed 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 receivi ng 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 f iled notice that she would not file a motion to compel defendant s to properly serve their previous filings

1 The motion to dismiss indicated th at Allied Chemical was no longer an existing corporation, and Hone ywell was its successor.- 4 - as they had begun to do so, although sh e later filed an amended notice that defendants failed to serve her properly. Thereafter, the magistrate judge granted Guardian’s re quest for an extension of time to file a response to the amended complaint. Ms. Ba ker twice opposed the extension. Like the othe r defendants, Guardian file d a Rule 12(b)(6) motion to dismiss asserting that ER ISA is an exclusive remedy preempting Ms. Baker’s state-law claims. In responding to this motion, she assert ed Guardian’s default, and asked for recusal of th e magistrate judge. Soon after the parties held a telephone conference to plan for discovery as is required by Federal Rule of Civil Pro cedure 26(f), Ms. Baker filed notice of misrepresentations by defendants during the c onference 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 Chemic al and by Connecticut Gene ral, alleging that their motions misrepresented fact s. 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 responde d to these motions, and indicated that if Ms. Ba ker persisted with her filings they would seek sanctions against her under Federal Rule of Civil Procedure 11. Thereafter, Ms. Baker moved to ame nd her complaint to add claims for violation of the Racketeer Influenced a nd Corrupt Organizations Act (RICO), for- 5 - theft of the proceeds of an accidental death and dism emberment policy, and for violations of her constitutiona l rights. Her motion was mi ssing three pages, and she did not attach a proposed amended complaint. Subsequently, Ms. Baker file d notice that she would be filing motions to strike defendants’ filings, to find Guardian and Conn ecticut General in de fault, 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 Gu ardian and Connecticut General were in default and that the court should strike al l defendants’ motions to dismiss based on their alleged misconduct, misr epresentations, and due proce ss 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 dispos itive motions and proceedings be heard by the district court, rather than a magistra te 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 th e Federal Rules of Civil Pro cedure and local court rules and cooperate in the discovery process despite th e 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 pleadi ngs irrelevant to the issu es raised in the pending dispositive motions. The cour t advised her against conti nuing to proceed in this manner. In the third order, the court denied any moti ons seeking to recuse the magistrate judge, poin ting out that Ms. Baker failed to support her submission with discussion of the applicable law or mean ingful argument and that most of her complaints were abou t adverse rulings. Thereafter, Ms. Baker continued with he r 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’ mo tions to dismiss. First, the court found that Ms. Baker sought payment of benefits from the insurance policies and therefore all state-law clai ms are related to ERISA an d must be dismissed with prejudice because they are preempted by ER ISA. Further, the court found that Honeywell 2 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 decisi on-making authority or controlled administration of the plan. Ba sed 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 Chem ical, General Chemical, and Honeywell interchangeably and regarded all th ree 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 Proce dure and local court rules a nd to limit her submissions accordingly or they might be dismissed wit hout notice if they a sserted claims that were unwarranted by existing law, were fri volous, or would in crease delay or the expense of litigation. In four separate orders, the court (1) denied Ms. Baker’s re quest to amend her complaint as futile and causing unnecessary delay becau se she sought to add claims that would be preempted by ERISA; (2) deni ed as moot her reque st to withdraw the motion to strike the motion to amend that contained insufficient pages and replace it with a motion to amend containing all page s; (3) denied as fri volous and vexatious her motion seeking to strike various filings of defendants; and (4) granted her motion to recognize her as her husband’s personal re presentative, but denied the motion to the extent it raised other claims, which the court deem ed irrelevant, groundless, frivolous, and not in complianc e with court rules. Ms. Baker then filed two separate notic es opposing all of the court’s orders and asserting that the court was biased and prejudiced. Th e 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 cour t orders or the Federal Rules- 8 - of Civil Procedure. Characterizing the no tices as bordering on sc urrilous, the court found that they were not s upported 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 wa rnings she had failed to comply with procedural rules and pers isted in filing vexa tious, frivolous, and unsupported pleadings that we re 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 hear ing. 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 cour t’s orders are erroneous and factually unsupported; (4) the court wrongly denied her an opportunity to file an amended comp laint 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 he r 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 allowa nces for [her] failure to- 9 - cite proper legal authority, h[ er] confusion of various lega l 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] atto rney 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 docum ents electronically. It is true that defendants (other than Guardi an) served their motions to dismiss and other initial pleadings electronically. But Ms. Baker c oncedes she was able to respond to the filings because she had a PA CER account and was aware of the filings. Despite her allegation that she rushed to meet her fi ling deadline to respond to the motions to dismiss of Allied Chemical , Honeywell and Connecticut General, she does not indicate what further research she w ould 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 extensi on of time to file her response s. Furthermore, she filed several other responses to the motions to dismiss, wh ich could have, but did not, contain additional legal authority or helpfu l argument. Accordingly, we conclude there was no legal error. Ms. Baker also contends th at defendants made false misrepresentations, but her assertions of misrepresentations by the defendants are conclusory and unsupported.- 10 - Second, Ms. Baker argues that the distri ct court was biased because the court wrongly attributed the tortur ed case procedures to her. She contends the court’s orders beginning on October 28, 2011, evidence the court’s bi as. We disagree. This case is not an exception to the general view that a court’s or ders 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 c ourt from entering a fair judgment. See id . Indeed, our review of the re cord 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. Accord ingly, we conclude that the court did not abuse its discre tion in declining to recuse. See Hinman v. Rogers , 831 F.2d 937, 938 (10th Cir. 1987) (per curiam). Third, Ms. Baker argues that the distri ct court’s orders are erroneous and factually unsupported. Although Ms. Baker states that she chal lenges each of the district court’s orders, she has not asserted specific clai ms regarding each order. Nonetheless, we have reviewed the record a nd relevant law, and we conclude that the district court’s orders are not erroneous and are factually supported. We specifically address only the two di smissal 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 dist rict 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 lik ely 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 lit igiousness prejudiced defendants by causing them to respond to num erous 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 doi ng 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 st ated that she was not raisi ng 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). Unde r Federal Rule of Civil Procedur e 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 surv ive a motion to dismis s, 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 cl aim has facial pl ausibility when the plaintiff pleads factual content that allows the c ourt to draw the reasonable inference that the defendant is lia ble for the misconduct alleged.” Id . In addition to the complaint, federal courts also consid er the attachments to the complaint. See Gee v. Pacheco , 627 F.3d 1178, 1186 (10t h Cir. 2010). The distri ct court applied these standards. For the reasons stated by the di strict court, it is clear that Ms. Baker cannot state a plausible claim (1) against Honeywell or A llied Chemical because her state-law claims are preempted under ERIS A and these two entities are not proper defendants under ERISA; and (2) against Co nnecticut General and Guardian because her state-law claims are preempted under ERISA. See R. at 1206-12. Fourth, Ms. Baker argues the district c ourt should have permitted her to file a second amended complaint and to add the thr ee 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 th at 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 ame ndment 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 Guardi an 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 w ithout 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 Wyom ing federal district court actions and her request for leave to apply to the distri ct 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 c ourt informed Ms. Baker that a certificate of appealability was unnecessary.