## F I L E D United States Court of Appeals Tenth Circuit 

### August 3, 2005 

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

CARLEE CAFFREE,

Plaintiff-Cross-ClaimDefendant-Appellant,

v. HOLLI LUNDAHL,

Defendant-CrossClaimant-Appellee,

v. U.S. BANKRUPTCY TRUSTEE, KEVIN R. ANDERSEN; HONORABLE GLEN CLARKE,

Cross-Claim-Defendants, and ALEXANDRIA DOCTORMAN; ANN KUNZE; HONORABLE LESLIE LEWIS; RALPH C. PETTY; MARLENE TELFORD; BERRETT & ASSOCIATES,Defendants-Cross-ClaimDefendants-Appellees.

------------------------- No. 04-4083 (D.C. No. 2:03-CV-185-DB)

(D. Utah)* This order and judgment is not binding precedent, e xcept under the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.

1 After the district court entered judgment, it grant ed Mr. Keddington leave to intervene as a plaintiff for purposes of appeal. See R. Vol. V, doc. 62, at 2. -2- JIM KEDDINGTON, Assignee to claims of Carlee Caffree as former assignee to specified claims of Heatland Trust, Intervenor-Appellant.

ORDER AND JUDGMENT *

Before EBEL , McCONNELL , and TYMKOVICH , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). T he case is therefore ordered submitted without oral argument. Pro se plaintiffs Carlee Caffree and Jim Keddington, 1 appeal the district court’s orders dismissing their case and denying th eir post-judgment motion to reconsider. The cross-appeal filed by Holli Lundah l, No. 04-4088, was dismissed by an earlier order of this court. We affirm the d istrict court’s orders.2 The bankruptcy court’s orders are not before us in this appeal. -3- Background The underlying dispute concerns a parcel of real pr operty located in Provo, Utah. Plaintiffs allege that they are the owners o f the property. They assert that the appellees (all defendants except the bankruptcy judge and trustee) deprived them of their rightful interest in the property thr ough orders entered in a Utah state court. They filed this action in a Nevada fe deral district court seeking an order to set aside the Utah state court’s ruling th at they were not the owners of the real property in question. The plaintiffs also all eged in their federal lawsuit that the appellees conspired in violation of the Rackete er Influenced and Corrupt Organizations Act (RICO) to deprive them of their i nterest in the property. The Nevada federal district court found that it lac ked personal jurisdiction over the appellees, and transferred the case to the Utah federal district court. At about the same time as the transfer, Holli Lundahl, a defendant and cross-claimant in this case, filed for bankruptcy in Utah and atte mpted to have the bankruptcy court take jurisdiction over the parties’ disputes regarding the Provo real property. The bankruptcy court dismissed Ms. Lundahl’s case o n January 9, 2004, without ruling on the Provo property issue. 2 Meanwhile, in the underlying Utah federal court act ion, the appellees filed a motion to dismiss for lack of subject-matter juri sdiction. The district court3 The district court also dismissed Ms. Lundahl’s cro ss claims, but since her

cross appeal has been dismissed, we limit our discu ssion to plaintiffs’ claims. -4- directed plaintiffs to address the issue of jurisdi ction, R. Vol. V, doc. 40, but they did not do so. The district court then dismissed t he case, holding that the Rooker-Feldman doctrine divested the federal court of jurisdictio n over plaintiffs’ challenge to the Utah state court’s orders in its q uiet title action, as well as plaintiffs’ other claims that were inextricably int ertwined with the state-court

case. 3 Id. doc. 45. Following the dismissal order, plaintiff s filed a motion to alter or amend the judgment, pursuant to Fed. R. Civ. P. 59(e), arguing that the district court violated the automatic bankruptcy stay by dis missing the case three days after the bankruptcy case was dismissed, and challe nging the court’s application of the Rooker-Feldman doctrine. The district court denied the motion. On appeal, plaintiffs assert (1) the order dismissi ng their case was void because it was issued while the automatic bankruptc y stay was in effect; (2) the Utah federal district court should have consolidate d the instant case with Ms. Lundahl’s bankruptcy case; (3) the Rooker-Feldman doctrine does not apply; (4) the district court abused its discretion in denying their Rule 59(e) motion because, even though they did not file a jurisdicti onal brief as directed, their Rooker-Feldman argument could have been found in the pleadings th ey did file;4 Plaintiffs did not, and do not, challenge the Nevad a district court’s

conclusion that it lacked personal jurisdiction ove r the defendants. -5- and (5) they obtained service of process on defenda nt Berrett and Associates, despite that defendant’s claim to the contrary. Legal Framework We first address plaintiffs’ claim that we must app ly the law of the jurisdiction in which they filed their complaint, w hich was the Ninth Circuit. The case was transferred to the Utah federal court beca use the Nevada court lacked personal jurisdiction; therefore, we apply the choi ce-of-law principles of the transferee court, which is the Tenth Circuit. Trierweiler v. Croxton & Trench Holding Corp. , 90 F.3d 1523, 1532 (10th Cir. 1996). 4 Utah choice-of-law principles require application of Utah substantive law. See Peck v. Horrocks Engineers, Inc. , 106 F.3d 949, 952 (10th Cir. 1997). Plaintiffs a re representing themselves on appeal, so their pleadings will be construed liberally. See Haines v. Kerner , 404 U.S. 519, 520 (1972). Plaintiffs’ pro se status does not excuse them, however, from following the rules of court. Murray v. City of Tahlequah , 312 F.3d 1196, 1199 n.3 (10th Cir. 2002). We review de novo the district court’s order dismis sing the case for lack of subject-matter jurisdiction. Kenmen Eng’g v. City of Union , 314 F.3d 468, 473 (10th Cir. 2002). We review for an abuse of discre tion the district court’s-6-

decision not to consolidate this case with the bankruptcy case. Shump v. Balka , 574 F.2d 1341, 1344 (10th Cir. 1978). The districtcourt’s order denying the Rule 59(e) motion is also reviewed for an abuse of discretion. Minshall v. McGraw Hill Broadcasting Co. , 323 F.3d 1273, 1287 (10th Cir. 2003). Analysis (i) Effect of Lundahl’s Bankruptcy Case Plaintiffs contend that the district court was proh ibited from dismissing the instant action for ten days after Ms. Lundahl’s ban kruptcy case was dismissed on January 9, 2004. Accordingly, they argue, the dism issal order entered January 12, 2004, three days later, was void. They rely on Fed . R. Civ. P. 62(a), which stays for ten days the execution or enforcement of a judgment, actions not at issue here. Rather, the automatic stay in bankruptcy of an act against property continues only until the subject property “is no longer property o f the estate; and (2) the stay of any other act . . . continues until the earliest of – the time the case is closed; . . . dismissed; or . . . [under specified circumstances] a discharge is granted or denied.” 11 U.S.C. §§ 362(c)(1) & (2)(A) (B) & (C) . Therefore, the district court was not prevented by the bankruptcy stay from enter ing its dismissal order. We further find that the district court did not abuse its discretion in declining to consolidate this case with Lundahl’s bankruptcy cas e for the simple reason that the motion to consolidate was not filed until after this case was dismissed. See R.-7-

Vol. V, doc. 45 (order dismissing case); id. doc. 47 (Lundahl’s motion to consolidate). (ii) Rooker-Feldman Doctrine

The Rooker-Feldman doctrine prohibits a party losing in state court from seeking what in substance would be appellate review of the state judgment in a United States district court, based on the losing party’s claim t hat the state judgment itself violates the loser’s federal rights. To determine whether a federal plaintiff’s claim is inextricably intertwined with a state court judgmen t we must pay close attention to the relief the plaintif f seeks. While a litigant may be able to make a federal clai m appear unrelated to a state court judgment through artful pleading, the requested relief can quickly reveal w hether Rooker-Feldman applies. Where a plaintiff seeks a remedy that would “disrupt or undo” a state court judgment, the federal claim is inextricably intertw ined with the state court judgment. Crutchfield v. Countrywide Home Loans , 389 F.3d 1144, 1147-48 (10th Cir. 2004) (quotation and citations omitted). Plaintiffs argue that the district court erroneousl y applied the Rooker-Feldman doctrine to them. They maintain that many of thei r claims are independent of the state court’s orders and that th e doctrine does not apply to them because they were not parties to the state-cou rt case. Unfortunately for plaintiffs, these arguments were waived when they d isregarded the district court’s directive to brief the jurisdictional issues. Although the Rooker-Feldman doctrine implicates this court’s subject matter jurisdiction , “our responsibility to ensure-8-

even sua sponte that we have subject matter jurisdi ction before considering a case differs from our discretion to eschew untimely rais ed legal theories which may support that jurisdiction. We have no duty under t he general waiver rule to consider the latter.” Daigle v. Shell Oil Co. , 972 F.2d 1527, 1539 (10th Cir. 1992) (citation omitted); accord United States ex rel. King v. Hillcrest Heal th Ctr., Inc. , 264 F.3d 1271, 1279 (10th Cir. 2001) (“Grounds orarguments in support of subject matter jurisdiction may be waive d like any other contention.”). In his reply brief on appeal, Mr. Keddington offers a reason for Ms. Caffree’s failure to comply with the district court ’s order to file a brief on the jurisdictional issues: She feared that doing so wo uld violate the automatic stay in Ms. Lundahl’s bankruptcy proceedings. This argument was not presented to the district court, however, and in addition to the wai ver occasioned by the lack of district court presentation, Wilburn v. Mid-South Health Dev., Inc. , 343 F.3d 1274, 1280 (10th Cir. 2003), we decline to consideran issue raised for the first time in a reply brief, Stump v. Gates , 211 F.3d 527, 533 (10th Cir. 2000). Plaintiffs assert that their Rooker-Feldman arguments could be found in the pleadings they did file and even though they ignore d the district court’s directive to brief the issue, the court erred in not looking for these arguments and authorities. We disagree. “No matter how often th ey are made to feel the part, our brothers and sisters on the district court benc h should not be cast in the role-9-

of stage director of the litigation drama--forced t o prod the actors through rehearsals until the proper performance is achieved.” Mitchell v. City of Moore , 218 F.3d 1190, 1199 (10th Cir. 2000). We decline t o impose a requirement on the district court to sift through a party’s pleadings to uncover an argument that the party should have briefed. See id. (holding district court not required to uncover disputed facts when considering summary judgment mo tion). It is true that the issue of the Rooker-Feldman bar was raised to the district court, and we may review the claims fairly raised a nd decided, but we do not consider on appeal a theory that was not raised in the district court. See S. Hospitality, Inc. v. Zurich Am. Ins. Co. , 393 F.3d 1137, 1142 (10th Cir. 2004) (declining review because appellant did not show th at specific issue was brought to district court’s attention). We have carefully reviewed the district court’s dismissal order entered January 12, 2004, and we af firm the order for the same reasons stated therein. (iii) Post-judgment Motion Plaintiffs next contend that the district court sho uld have considered their Rooker-Feldman arguments made in their motion to alter or amend t he judgment, filed under Rule 59(e). “The purpose for such a mo tion is to correct manifest errors of law or to present newly discovered evidence.” Comm. for First Amendment v. Campbell , 962 F.2d 1517, 1523 (10th Cir. 1992) (quotation-10-

omitted). It is not an opportunity to raise argume nts that could have been presented prior to the entry of judgment. 11 Charles Alan Wright et al., Federal Practice & Procedure , § 2810.1, at 127-28 (2d ed. 1995). Because plain tiffs’ Rule 59(e) motion raised arguments that should have been presented prior to judgment, the district court properly declined to c onsider them. Accordingly, the district court did not abuse its discretion in deny ing the motion. (iv) Service of Process Given our disposition of plaintiffs’ claims, any di spute over the service of process on Berrett and Associates is moot because t he dismissal under Rooker-Feldman also bars plaintiffs’ claims against this defendan t. The judgment of the district court is AFFIRMED. Th e mandate shall issue forthwith. Entered for the Court

Michael W. McConnell Circuit Judge