UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ ELET VALENTINE, Plaintiff - Appellant,

v. THE PNC FINANCIAL SERVICES GROUP, INC.; PNC BANK, NATIONAL ASSOCIATION, a/k/a PNC Bank, NA; PNC MORTGAGE, Defendants - Appellees. Nos. 19-1007 & 19-1466 (D.C. No. 1:18-CV -01934-CMA-SKC) (D. Colo.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before BRISCOE , MATHESON , and EID , Circuit Judges.

________________ _________________ Elet Valentine, appearing pro se, appeals from the district court’s orders denying her motion for a preliminary inju nction (No. 19-1007) and dismissing her action with prejudice as a sanction (No. 19-1466). Exercising jurisdiction under 28 U.S.C. § 1291, we affirm the order in No. 19-1466 and dismiss No. 19-1007 as

moot.

* After examining the briefs and appella te record, this pa nel has determined unanimously that oral argument would not ma terially assist in the determination of these appeals. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The cases are therefore ordered submitted with out 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 This order and judgment is not binding precedent, except under the doctrines of law of the case , res judicata, and collateral estoppel.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 

### July 14, 2020 Christopher M. Wolpert Clerk of Court2 BACKGROUND This case arises from a dispute betw een Ms. Valentine and PNC Financial Services Group, Inc., PNC Bank, N.A., a nd PNC Mortgage (collectively “PNC”) concerning her default on a residential mo rtgage loan and subsequent foreclosure proceedings. In 2018, a Colorado state court issued an order authorizing the sale of Ms. Valentine’s home. While the fo reclosure proceedings were pending, Ms. Valentine filed suit in the United Stat es District Court for the District of Colorado alleging eleven claims for relief. She also asked the court to issue a preliminary injunction to prevent the sale of her home and require PNC to preserve documents pending determination of the me rits. The court denied the motion, and Ms. Valentine appealed, which is No. 19-1007 (the “Injunction Appeal”). Following the denial of preliminary in junctive relief, PNC sold the property and moved to dismiss the Injunction Appe al as moot. Immediately thereafter, Ms. Valentine filed an amended notice of a ppeal in which she at tempted to appeal from several procedural orders. PNC m oved to dismiss the amended notice arguing that none of the orders were final a nd therefore could not be appealed. While the Injunction Appeal was pendi ng, PNC filed a motion to dismiss Ms. Valentine’s amended complaint. The magistrate judge issu ed a recommendation to dismiss all claims except Ms . Valentine’s breach of contr act claim. The magistrate judge further rejected Ms. Valentine’s ar gument that the pending Injunction Appeal divested the court of jurisdiction. The district court adopte d the recommendation, noting Ms. Valentine did not challenge the magistrate judge’s s ubstantive analysis;3 instead, she continued to maintain the pe nding Injunction Appeal divested the court of jurisdiction. Shortly thereafter, the magistrate judge set a status conference and asked PNC to take the lead in preparing a draft proposed scheduling orde r. Days later, Ms. Valentine filed yet another amended noti ce of appeal in the Injunction Appeal in which she tried to expand the scope of the a ppeal to include the district court’s order to dismiss all but one of Ms. Valentine’s claims. This court deemed the amended notice was a new appeal and assigned it No. 19-1350 (the “Second Appeal”). In the meantime, Ms. Valen tine refused to follow the magistrate judge’s order to work with PNC to develop a scheduling or der. Despite Ms. Va lentine’s failure to participate, PNC timely filed a proposed or der and further asked the court to find the Second Appeal was frivolous. On the day set for the status conferen ce, the magistrate judge waited fifteen minutes after the scheduled st art time, but Ms. Valentine fa iled to appear. He set a further conference in three weeks and warned Ms. Valentin e she must appear or risk dismissal of her suit. A few days later, the di strict court entered an order certifying the Second Appeal as frivolous: “Because it is obvious [that an order dismissing some but not all of Ms. Valentine’s claims] is not appealable, the Court hereby certifies the [Second Appeal] as frivolous. As a result, th is Court retains jurisdiction to consider the merits of this case.” No. 19-1466, R., Vol. 5 at 114 (footnote omitted).4 Undeterred, Ms. Valentine fi led motions to reconsider the magistrate judge’s order setting a further status conference and the court’s order certifying the Second Appeal as frivolous. The c ourt denied both motions, e xplaining once again that it had jurisdiction, and issuing another warni ng to Ms. Valentine to comply with the court’s orders or face dismissal. When Ms. Valentine failed to appear at the second status conference, the magistrate judge entered a written r ecommendation to dismiss the case with prejudice. The district c ourt overruled Ms. Valentine’s objections and adopted and affirmed the recommendation. As backdr op, the court outlined Ms. Valentine’s failure to comply with the court’s orders and “meaningf ully engage in the litigation process,” along with her refusal to “accept any interpretation of the law other than her own.” Id . at 196. “The Court has had enough.” Id . at 197. Using the five fact ors announced in Ehrenhaus v. Reynolds , 965 F.2d 916, 921 (10th Cir. 1992)—namely “(1) the degree of actual prejudi ce to the defendant; (2) the amount of interference with th e judicial process; (3) the culpability of the litigant; (4) whether the court warned the party in advance that di smissal of the action would be a likely sanction for nonc ompliance; and (5) the ef ficacy of lesser sanctions” (internal quotation marks, ellipsis, and citations om itted)—the district court determined dismissal as a sanction was appropriate. As to the first factor, th e court noted Ms. Valentine’ s “conduct has resulted in substantial prejudice to [PNC],” No. 19-1466, R., Vol. 5 at 199. “[PNC] ha[s] been diligent in [its] attempt[] to br ing this litigation to a close, but these efforts have been5 stymied by Ms. Valentine’s disregard for hearings and Court Orders.” Id . (internal quotation marks omitted). “In addition to being deprived of any finality in this matter, [PNC] ha[s] also e xpended considerable resources in what has become a futile effort to move this case forward.” Id . at 199-200. Regarding the second factor, the cour t found Ms. Valentine’s “conduct has stalled the judicial process.” Id . at 200. “[Ms. Valentine’s] refusal to comply with court orders has inhibited th e Court’s ability to perform straightforward tasks.” Id

. “Moreover, [her] refusal to recognize this Court’s authority to interpret the law has forced the Court to expend valuable time in an unnecessary and repetitive exercise of explaining to [her] why her frivolous argumen ts regarding this Court’s jurisdiction are incorrect.” Id . “This Court has limited resour ces and an extensive docket. Accordingly, the consequences that result from [Ms. Va lentine’s] ongoing interference with the judicial system cannot be understated.” Id

. Considering the third factor, the court f ound Ms. Valentine “is culpable for her conduct,” noting “[e]ven afte r [she] filed her second No tice of Appeal and stopped appearing at proceedings . . . [the] Magistrate Judge . . . and this Court provided [her] with multiple detailed explanations of the legal principles that refute her position regarding . . . jurisdiction.” Id . “Nevertheless, [Ms. Valentine] has remained obstinate, and her choice to maintain her st rategy under the circumstances shows that her conduct is intentional.” Id

. As to the fourth factor, the court found Ms. Valentine “had ample notice of the possibility of dismissal due to her conduct.” Id . at 201. And regarding the final6 factor, the court found “[s]an ctions less than dismissal with prejudice would not be effective,” noting an award of attorney fees against Ms. Valentine “based on her frivolous attempt to remove a [separate] cas e to federal court” was an ineffective deterrent against her “insis tence on pursuing arguments ev en after they have been demonstrated to be frivolous.” Id . The Court also found “t hat sanctions other than dismissal with prejudice are unlikely to ch ange what [the] Magistrate Judge . . . correctly described as [Ms. Valentine’s] willful bad faith in repeatedly disregarding the Court’s rules and orders.” Id . (internal quotation marks omitted). Ms. Valentine filed a notice of appeal from the district court’s entry of a final judgment dismissing the case as a sanction, which is No. 19-1466 (the “Sanction Appeal”). Shortly thereafter, this Court dismissed the Second Ap peal for lack of jurisdiction. SANCTION APPEAL “The Federal Rules of Civil Proce dure authorize sanctions, including dismissal, for failing to a ppear at a pretrial or sche duling conference . . . and for failing to comply with court rules or any order of the court.” Gripe v. City of Enid , 312 F.3d 1184, 1188 (10th Cir. 2002). “We review for an abuse of discretion the district court’s decision to impose the sanction of dismissa l for failure to follow court orders and rules.” Id . “It is within a court’s discre tion to dismiss a case if, after considering all the relevant factors, it c oncludes that dismissal alone would satisfy the interests of justice.” Ehrenhaus , 965 F.2d at 918. The district court considered7 the relevant factors in deciding to dismis s Ms. Valentine’s case, and its decision was not an abuse of discretion. But Ms. Valentine does not challenge the merits of the distri ct court’s sanction order; instead, she maintains the c ourt lacked jurisdiction to enter any orders upon the filing of her Injunction Appeal and Seco nd Appeal, including the sanction order. Ms. Valentine is mistaken. An appeal from an interlocutory orde r denying a preliminary injunction does not divest the district court of jurisdic tion to proceed with the underlying action on the merits. See Colorado v. Idarado Mining Co. , 916 F.2d 1486, 1490 & n.2 (10th Cir. 1990). Like wise, “so long as the district cour t takes the affirmative step of certifying an appeal as frivolous or forfeited, it retains jurisdiction.” McCauley v. Halliburton Energy Servs., Inc. , 413 F.3d 1158, 1162 (10th Cir. 2005). Because the court certified Ms. Valentine’s Second Appeal as frivolous, it retained juri sdiction. Last, Ms. Valentine incorporates by reference her arguments in a proposed supplement to her opening brief in the In junction Appeal con cerning eight alleged procedural errors committed by the district court. Whether to accept the proposed supplement was referred to th is panel. We grant Ms. Va lentine’s motion to file the proposed supplement but deny the arguments in view of our ruling on the dispositive issue—the district court did not abuse its discretion in dismissing Ms. Valentine’s case as a sanction for her failure to comply w ith the court’s orders. The issues in the supplement, which include whether PNC’s motion to dismiss wa s timely filed and whether the court properly denied Ms. Vale ntine’s motion to file a second amended8 complaint, do not “affect th e outcome[,]” and therefore, “[w]e will not undertake to decide [them].” Griffin v. Davies , 929 F.2d 550, 554 ( 10th Cir. 1991). INJUNCTION APPEAL Ms. Valentine’s appeal from the denial of the preliminary injunction is mooted by the fact that the district court proceeded to adjudicat e the underlying action on the merits. When a court proceeds to adjudi cate the merits of the underlying action and enters a final judgment, an a ppeal from the denial of a pr eliminary injunction is moot because a preliminary injunction is by its nature a temporary measure intended to furnish provisional protection while awaiti ng a final judgment on the merits. See United States ex rel. Bergen v. Lawrence , 848 F.2d 1502, 1512 ( 10th Cir. 1988). CONCLUSION We affirm the district’s court’ s order in No. 19-1466. We deny Ms. Valentine’s motion to reconsider this court’s order denying her motion to consolidate. We dismiss No. 19-1007 as moot. We grant Ms. Valentine’s motions to file a supplement to her opening brief and to exte nd the time for filing that supplement, and we direct the Clerk to file the supplement as of the date it was received. We deny Ms. Valentine’s motions to: (1) reconsider this court’ s order to supplement the record; (2) preserve the record; (3) opp ose PNC’s entry of appearance; and9 (4) reconsider this court’s order denying her motion to c onsolidate. We deny PNC’s motions to dismiss the appeal and am ended notice of appeal as moot.

Entered for the Court

Allison H. Eid Circuit Judge