* This order and judgment is not binding precedent, e xcept under the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

### October 31, 2005

Clerk of Court UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

ROBERT MULDER and TAMARA L. MULDER, Plaintiffs-Appellants, No. 05-4044

v. District of Utah SCOTT LUNDBERG; LUNDBERG & ASSOCIATES; ALEJANDRO MAYNEZ; MAYNEZ LAW FIRM; DEANNA MARIE LASKER-WARDEN; BEAN & SMEDLEY CHASE MANHATTAN MORTGAGE; MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC.; MARIA SEVERINO-ROLLER; TONI M. KLYSZ, Defendants - Appellees. (D.C. No. 2:04CV1200 DAK)

ORDER AND JUDGMENT *

Before HARTZ , BARRETT , and McCONNELL , Circuit Judges.1 A number of additional parties, including Chase Manhattan Mortgage

Corp. and several individual attorneys, were subsequently joined as defendants and submitted separate briefs on appeal. For the s ake of convenience, we refer to both sets of defendants collectively as “Defendants .” -2- Plaintiffs Robert and Tamara Mulder defaulted on lo ans secured by two parcels of real property in Utah County and Weber C ounty, Utah. In response, Defendants Scott Lundberg and Lundberg & Associates initiated nonjudicial foreclosure proceedings as authorized by Utah law. 1 The Mulders subsequently transferred their interest in both parcels by quitc laim deed to the Pembina Nation Little Shell Band of North America. They then file d an action pro se in federal court, claiming that Utah’s nonjudicial foreclosure statute violated their “fundamental, God-given and Constitutionally supported Rights” as “Sovereign Citizens” of the Pembina Nation Little Shell Band o f North America. Compl. 2–3. The complaint requested an injunction barring the Defendants from selling, transferring, or conveying the two parcels. The district court dismissed the action with prejud ice on January 11, 2005, citing defective service, lack of standing, and fai lure to state a claim for which relief can be granted under Rule 12(b). The court subsequently denied the Mulders’ motion to amend the complaint on January 2 0. On March 2, the district court issued an order quashing an apparently unfile d “Notice of Removal” and “Summons and Complaint,” which purported to remove the action to the “Federal-3-

Tribal Circuit Court” for the Pembina Nation Little Shell Band. The Mulders filed a notice of appeal on March 9. This Court has jurisdiction over the appeal. A not ice of appeal in a civil case where the United States is not a party must be filed within 30 days of the date of entry of judgment, Fed. R. App. P. 4(a)(1)( A), and an unfiled notice of “removal” to another court does not extend the time to file a notice of appeal, see Fed. R. App. P. 4(a)(4)(A). For a motion to dismis s under Rule 12(b), however, entry of judgment does not take place until it is “ set forth on a separate document” or when 150 days have run from entry in the civil docket. Fed. R. Civ. P. 58(b)(2). In this case, the Plaintiffs filed a notice of appeal 57 days after the district court dismissed their action. Because the district court did not set forth its judgment on a separate document, entry of judgm ent had not yet occurred and filing of the notice of appeal was timely. Nonetheless, we do not reach the merits of the Muld ers’ claims because they lack standing to assert them in federal court. Article III limits federal courts to hearing “cases” or “controversies,” which requir es the following: (1) that the plaintiff “suffered an ‘injury in fact’—an invasionof a legally protected interest which is (a) concrete and particularized and (b) ac tual or imminent, not conjectural or hypothetical”; (2) that the injury i s “fairly . . . trace[able] to the challenged action of the defendant”; and (3) that i t is “likely, as opposed to-4-

merely speculative, that the injury will be redress ed by a favorable decision.” Lujan v. Defenders of Wildlife , 504 U.S. 555, 560–61 (1992) (internal quotation marks omitted). We review de novo a district court’s dismissal with prejudice for lack of standing. See United States v. Colo. Supreme Ct. , 87 F.3d 1161, 1164 (10th Cir. 1996). In this case, as the complaint a cknowledges, the Mulders surrendered title to both parcels to the Pembina Nation Little Shell Band of North America. The quitclaim deeds signed by the Mulders relinquished “all the right, title, interest and claim . . . in and to” the prop erties. App. 24. Accordingly, the sale, transfer, or conveyance of the properties wou ld not cause any “injury in fact” to the Mulders. Further, the injunctive reli ef requested in the complaint would not redress any injury to the Mulders. The Mulders lack standing to enjoin the Defendants from taking action against a third p arty regarding parcels of land they no longer own. Moreover, the Mulders do not enjoy sovereign immuni ty on the facts set forth in the complaint. Tribal sovereign immunity inheres in the tribe itself, not in individual tribe members acting in their capacity as individuals. See Puyallup Tribe, Inc. v. Dep’t of Game of State of Wash. , 433 U.S. 165, 173 (1977) (“[T]ribal sovereign immunity . . . does not impairthe authority of the state court to adjudicate the rights of the individual [tribal member] defendants over whom it properly obtained personal jurisdiction.”); Fletcher v. United States , 116 F.3d-5-

1315, 1324 (10th Cir. 1997) (noting that tribal off icials, like state and federal officials, are protected by sovereign immunity onlywhen acting in their official capacity). Here, the Mulders as individuals entere d into loan agreements regarding the two parcels of land, and their defaul t prompted the Defendants to initiate nonjudicial foreclosure proceedings. Acco rding to the complaint, the Pembina Nation Little Shell Band of North America n ow owns the properties, but it is not a party to this action. The Mulders are not an Indian tribe, and therefore they cannot assert tribal sovereign immunity as a b asis for injunctive relief against the Defendants. The parties have presented three additional motions on appeal. First, the Mulders have submitted a “Motion to Vacate Void Jud gments” of the district court, apparently objecting to the order that quash ed their “Notice of Removal” to the “Federal Tribal Circuit Court” of the Pembina N ation Little Shell Band of North America. We note that the Bureau of Indian A ffairs does not recognize this tribe or its courts. See Indian Entities Recognized and Eligible to Receive Services from the United States Bureau of Indian Af fairs, 65 Fed. Reg. 13,298 (Mar. 13, 2000). Further, as the district court he ld, the motion was improperly filed, and no device exists under federal law for “ removing” a case to tribal court after dismissal with prejudice.-6-

Second, the Mulders have submitted an “Amended Noti ce to Submit for Decision,” which asserts that because the Defendant s failed to respond within five days to “a challenge” issued in their reply brief t o produce the original promissory notes, the Defendants have no legal basis for forec losure and automatically lose the lawsuit. In fact it is the Mulders who lack any legal basis for their “challenge,” which flouts the Federal Rules of Civi l Procedure. Third, the Defendants have submitted a motion for an award of costs and attorney fees for defending a frivolous appeal. Th is Court is authorized to grant such motions, even against pro se appellants. See Haworth v. Royal , 347 F.3d 1189, 1192 (10th Cir. 2003). Yet we typically awar ds costs and attorney fees only in response to serious and sustained abuses. In Haworth , for example, the pro se appellant had advance notice that the Defendants wo uld pursue sanctions in the event of an appeal, and she had filed repeated friv olous actions and motions, both in state and federal court. Id. at 1191–92. Although we sympathize with the Defendants in this case, who were forced to deciphe r and respond to sometimes frivolous and often incomprehensible legal argument s, we do not think the Mulders’ conduct amounts to a serious abuse of the appellate process. We therefore decline to award costs and attorney fees.
We AFFIRM the judgment of the district court dismissing the action with prejudice for lack of standing. We DENY the Plaintiffs’ Motion to Vacate Void-7-

Judgments. We DENY both sets of Defendants’ motions for an award of damages, costs and fees.

Entered for the Court

Michael W. McConnell Circuit Judge