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 injunction (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 appellate record, this panel has determined 

unanimously that oral argument would not materially 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 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 

July 14, 2020

Christopher M. Wolpert 

Clerk of Court
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BACKGROUND 

This case arises from a dispute between Ms. Valentine and PNC Financial 

Services Group, Inc., PNC Bank, N.A., and PNC Mortgage (collectively “PNC”) 

concerning her default on a residential mortgage loan and subsequent foreclosure 

proceedings. In 2018, a Colorado state court issued an order authorizing the sale of 

Ms. Valentine’s home. While the foreclosure proceedings were pending, 

Ms. Valentine filed suit in the United States 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 merits. The court denied the motion, and 

Ms. Valentine appealed, which is No. 19-1007 (the “Injunction Appeal”). 

Following the denial of preliminary injunctive relief, PNC sold the property 

and moved to dismiss the Injunction Appeal as moot. Immediately thereafter, 

Ms. Valentine filed an amended notice of appeal in which she attempted to appeal 

from several procedural orders. PNC moved to dismiss the amended notice arguing 

that none of the orders were final and therefore could not be appealed. 

While the Injunction Appeal was pending, PNC filed a motion to dismiss 

Ms. Valentine’s amended complaint. The magistrate judge issued a recommendation 

to dismiss all claims except Ms. Valentine’s breach of contract claim. The magistrate 

judge further rejected Ms. Valentine’s argument that the pending Injunction Appeal 

divested the court of jurisdiction. The district court adopted the recommendation, 

noting Ms. Valentine did not challenge the magistrate judge’s substantive analysis; 
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instead, she continued to maintain the pending 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 order. Days later, 

Ms. Valentine filed yet another amended notice of appeal in the Injunction Appeal in 

which she tried to expand the scope of the appeal 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. Valentine refused to follow the magistrate judge’s order 

to work with PNC to develop a scheduling order. Despite Ms. Valentine’s failure to 

participate, PNC timely filed a proposed order and further asked the court to find the 

Second Appeal was frivolous. 

On the day set for the status conference, the magistrate judge waited fifteen 

minutes after the scheduled start time, but Ms. Valentine failed to appear. He set a 

further conference in three weeks and warned Ms. Valentine she must appear or risk 

dismissal of her suit. 

A few days later, the district 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, this Court retains jurisdiction to consider 

the merits of this case.” No. 19-1466, R., Vol. 5 at 114 (footnote omitted). 
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Undeterred, Ms. Valentine filed 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 court denied both motions, explaining once again that it 

had jurisdiction, and issuing another warning 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 recommendation to dismiss the case with 

prejudice. The district court overruled Ms. Valentine’s objections and adopted and 

affirmed the recommendation. As backdrop, the court outlined Ms. Valentine’s 

failure to comply with the court’s orders and “meaningfully 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 factors announced in Ehrenhaus v. Reynolds, 965 F.2d 916, 921 

(10th Cir. 1992)—namely “(1) the degree of actual prejudice to the defendant; (2) the 

amount of interference with the judicial process; (3) the culpability of the litigant; 

(4) whether the court warned the party in advance that dismissal of the action would 

be a likely sanction for noncompliance; and (5) the efficacy of lesser sanctions” 

(internal quotation marks, ellipsis, and citations omitted)—the district court 

determined dismissal as a sanction was appropriate. 

As to the first factor, the 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 bring this litigation to a close, but these efforts have been 
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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 expended considerable resources in what has become a 

futile effort to move this case forward.” Id. at 199-200. 

Regarding the second factor, the court found Ms. Valentine’s “conduct has 

stalled the judicial process.” Id. at 200. “[Ms. Valentine’s] refusal to comply with 

court orders has inhibited the 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 arguments regarding this Court’s jurisdiction 

are incorrect.” Id. “This Court has limited resources and an extensive docket. 

Accordingly, the consequences that result from [Ms. Valentine’s] ongoing 

interference with the judicial system cannot be understated.” Id. 

Considering the third factor, the court found Ms. Valentine “is culpable for her 

conduct,” noting “[e]ven after [she] filed her second Notice 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 strategy 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 final 
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factor, the court found “[s]anctions 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] case to federal court” was an ineffective 

deterrent against her “insistence on pursuing arguments even after they have been 

demonstrated to be frivolous.” Id. The Court also found “that sanctions other than 

dismissal with prejudice are unlikely to change 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 Appeal for lack of 

jurisdiction. 

SANCTION APPEAL 

“The Federal Rules of Civil Procedure authorize sanctions, including 

dismissal, for failing to appear at a pretrial or scheduling 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 dismissal for failure to follow court 

orders and rules.” Id. “It is within a court’s discretion to dismiss a case if, after 

considering all the relevant factors, it concludes that dismissal alone would satisfy 

the interests of justice.” Ehrenhaus, 965 F.2d at 918. The district court considered 
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the relevant factors in deciding to dismiss Ms. Valentine’s case, and its decision was 

not an abuse of discretion. 

 But Ms. Valentine does not challenge the merits of the district court’s sanction 

order; instead, she maintains the court lacked jurisdiction to enter any orders upon 

the filing of her Injunction Appeal and Second Appeal, including the sanction order. 

Ms. Valentine is mistaken. 

 An appeal from an interlocutory order denying a preliminary injunction does 

not divest the district court of jurisdiction 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). Likewise, “so long as the district court 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 jurisdiction. 

 Last, Ms. Valentine incorporates by reference her arguments in a proposed 

supplement to her opening brief in the Injunction Appeal concerning eight alleged 

procedural errors committed by the district court. Whether to accept the proposed 

supplement was referred to this panel. We grant Ms. Valentine’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 with the court’s orders. The issues in the 

supplement, which include whether PNC’s motion to dismiss was timely filed and 

whether the court properly denied Ms. Valentine’s motion to file a second amended 
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complaint, do not “affect the 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 adjudicate the underlying action on the 

merits. When a court proceeds to adjudicate the merits of the underlying action and 

enters a final judgment, an appeal from the denial of a preliminary injunction is moot 

because a preliminary injunction is by its nature a temporary measure intended to 

furnish provisional protection while awaiting 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 extend 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) oppose PNC’s entry of appearance; and 

 
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(4) reconsider this court’s order denying her motion to consolidate. We deny PNC’s 

motions to dismiss the appeal and amended notice of appeal as moot. 

Entered for the Court 

Allison H. Eid 

Circuit Judge