FILED

United States Court of Appeals

Tenth Circuit

July 9, 2013

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

PATRICIA MARTINEZ,

Plaintiff - Appellant,

v.

MICHAEL MARTINEZ; PAUL

WEIST; CATHY WEIST; JEAN

SMITH; OTHERS YET UNNAMED,

Individually, Jointly and Severally,

Defendants - Appellees.

No. 13-2042

(D.C. No. 1:12-CV-01185-LH-WDS)

(D. N.M.)

ORDER AND JUDGMENT*

Before KELLY, HOLMES, and MATHESON, Circuit Judges.**

Patricia Martinez, appearing pro se, appeals from three district court orders

dismissing her case, imposing filing restrictions, and striking documents. Ms.

Martinez alleges breach of fiduciary duties, fraud, unjust enrichment, and

*

 This order and judgment is not binding precedent, except under the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

** After examining the appellant’s brief and the appellate record, this threejudge panel has determined unanimously that oral argument would not be of

material assistance in the determination of this appeal. See Fed. R. App. P. 34(a);

10th Cir. R. 34.1(G). The cause is therefore ordered submitted without oral

argument.
negligent misrepresentation against Defendants Michael Martinez (her exhusband), Paul and Cathy Weist, and Jean Smith, all arising from the Martinezes’

divorce proceedings. The district court dismissed the case because Ms. Martinez

had previously filed two similar actions against the same parties in the same

court. See Martinez v. Martinez, No. 09-281; Martinez v. Martinez, No. 01-036. 

Exercising jurisdiction under 28 U.S.C. § 1291, we affirm for substantially the

reasons given by the district court.

The parties are familiar with the facts, and we need not repeat them here. 

The district court dismissed Ms. Martinez’s case, finding “she has already brought

claims against [Defendants], based upon the same set of facts, in a pending case.” 

I R. 42. We review this decision for abuse of discretion. Katz v. Gerardi, 655

F.3d 1212, 1217 (10th Cir. 2011). Our review of Ms. Martinez’s appellate brief

and the record in this case convinces us that the court did not abuse its discretion

because her complaint raises the same issues previously raised against the same

parties. See id. at 1219. Moreover, like the district court, we are unpersuaded

that the recent discovery of Mr. Martinez’s 1997 tax return warrants further

litigation. See Aplt. Br. 20; I R. 41–42. 

The district court also was correct to impose filing restrictions. The court

took judicial notice that Ms. Martinez “has repeatedly and relentlessly abused the

judicial process,” and ordered Ms. Martinez to show cause as to why restrictions

should not be imposed. I R. 43–44. Unpersuaded by her response, the court

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appropriately imposed filing restrictions. See Andrews v. Heaton, 483 F.3d 1070,

1077 (10th Cir. 2007); I R. 127–30.

Finally, the district court did not abuse its discretion in striking documents. 

In its dismissal order, the court ordered that Ms. Martinez “shall not file a motion

to reconsider.” I R. 44. Nonetheless, Ms. Martinez submitted a Motion to Vacate

Judgment, which asked the court to reconsider its decision, and a Motion for Final

Judgment. Id. at 132–33, 135–61. Although we are critical of court orders that

purport to eliminate the right to reconsideration, see In re Otasco, Inc., 981 F.2d

1166, 1167 (10th Cir. 1992), we approve of such an order in this case where Ms.

Martinez was an abusive filer, had previously raised similar claims, and had come

before this court many times. See, e.g., I R. 84–86, 193–94, 283–98. Therefore,

the court did not err in striking the documents filed in violation of its order. 

AFFIRMED.

Entered for the Court

Paul J. Kelly, Jr.

Circuit Judge

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