* This order and judgment is not binding precedent, e xcept under the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

### MAY 7 1997 

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

CHARLOTTE ANN PLOTNER, an individual, Plaintiff-Appellant,

v. AT&T CORPORATION, a New York Corporation; GERALD L. GAMBLE; CHARLES C. GREEN; KENNETH N. MCKINNEY; MARK D. COLDIRON; JIM T. PRIEST; GARY D. HAMMOND; MCKINNEY STRINGER & WEBSTER PC., Defendants-Appellees, No. 96-6212 (D.C. No. CIV-95-50-R) (W.D. Okla.)

ORDER AND JUDGMENT *

Before PORFILIO, TACHA, and BRISCOE, Circuit Judges

.-2-

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); 10th Cir. R. 34.1.9. The c ase is therefore ordered submitted without oral argument. Plaintiff’s primary asset in her Chapter 11 bankrup tcy estate was an 80-acre piece of commercial property in Oklahoma City. Ove r her objections, the bankruptcy court approved the sale of the property to AT&T, through a strawman, and the district court dismissed her appeal as mootbecause the sale had been consummated. Plaintiff then filed this action in t he district court alleging fraud on the bankruptcy court against all defendants exce pt Gerald Gamble and breach of fiduciary duty against Gamble and seeking rescis sion of the sale plus compensatory and punitive damages. Defendants moved for dismissal or summary judgment based on, inter alia, lack of subject matter jurisdiction. As the distri ct court noted, plaintiff’s basis for jurisdiction has evolved since her original complai nt against AT&T only, which alleged diversity jurisdiction. Adding the remaini ng defendants with her first amended complaint, plaintiff changed her jurisdicti onal basis to federal question. In response to defendants’ motions, the only basis for jurisdiction plaintiff alleged was as an independent action for fraud on the courtunder Fed. R. Civ. P. 60(b). See, e.g. , Appellant’s App. Vol. III at 1219.-3-

The district court concluded that while Rule 60(b) preserved ancillary jurisdiction to entertain an independent equitable action challenging a judgment based on fraud on the court, see Crosby v. Mills , 413 F.2d 1273, 1275-76 (10th Cir. 1969), this case did not present the unusual and exceptional circumstances necessary to warrant exercise of its jurisdiction, in large part because the fraud was allegedly perpetrated on the bankruptcy court, and the bankruptcy court could provide an adequate remedy to plaintiff. The courttherefore dismissed plaintiff’s complaint without prejudice to her seeking appropri ate relief in the bankruptcy court. The court also denied her motion to file a second amended complaint as moot. Plaintiff appeals, although before even fili ng her notice of appeal she had filed a separate action in the bankruptcy court see king virtually the same relief as in this case. On appeal, plaintiff contends that the district cou rt had federal question jurisdiction due to defendants’ commission of the c rime of bankruptcy fraud and their use of the courts to deprive her of her due p rocess rights. Though it is1 Plaintiff failed to comply with 10th Cir. R. 28.2(b ) requiring her to provide

“with respect to each issue raised on appeal, a statement as to where in the record the issue was raised and ruled upon.” Additionally , she did not provide an overall index to her nearly 2000-page appendix, much of whi ch applies to her separate bankruptcy court case. -4- unclear from the record whether plaintiff ever asse rted these bases for jurisdiction in the district court, 1 it is clear that plaintiff did not raise these iss ues in response to defendants’ motions to dismiss or for summary ju dgment, nor did the district court consider them in its dismissal order. We do not consider on appeal issues not raised or abandoned in the district court absent unusual circumstances that are not present here. See Rademacher v. Colorado Ass’n of Soil Conservation Dists. Med. Benefits Plan , 11 F.3d 1567, 1571-72 (10th Cir. 1993); Daigle v. Shell Oil Co. , 972 F.2d 1527, 1539 (10th Cir. 1992) (court may “ eschew untimely raised legal theories which may support . . . jurisdiction ”). Because plaintiff did not preserve her arguments for federal question jurisdi ction, we reject her contention that the dismissal violated her right to a jury tri al. Plaintiff also contends that the unusual and except ional circumstances of this case required exercise of the district court’s ancillary jurisdiction over this case as an independent action. She also contends t hat the district court abused its discretion in not allowing her to amend her complai nt to add an additional defendant. The district court has discretion regar ding whether to exercise its ancillary jurisdiction over an independent action, see King Fisher Marine Serv.,-5-

Inc. v. 21st Phoenix Corp. , 893 F.2d 1155, 1158 (10th Cir. 1990); Treadaway v

. Academy of Motion Picture Arts & Sciences , 783 F.2d 1418, 1422 (9th Cir. 1986), and we see no abuse of that discretion here. We also agree with the court that whether to allow amendment of the complaint is moot. Thus, we affirm the district court’s dismissal of plaintiff’s complaintfor substantially the same reasons as stated in the district court’s July 30, 1996 amended order. AFFIRMED.

Entered for the Court

John C. Porfilio Circuit Judge