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

### MAY 26 2004 

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

BENARD WITHERSPOON; JAMES WITHERSPOON; FRANKIE L. WITHERSPOON; ESSIE WITHERSPOON; ULYSSES WASHINGTON; MARY WASHINGTON; BOBBY WITHERSPOON; LATONYA WITHERSPOON; GEORGE WITHERSPOON; KENDRA WITHERSPOON,

Plaintiffs-Appellants, and PAULA PORTER; LUE CYNTHIA HALL; GARNSTIME SHELTON; NEW JERUSALEM LOCAL CONGREGATION,

Plaintiffs,

v. DOUGLAS S. MILLER; DANIEL H. DIEPENBROCK; GRANT SELLENBERGER; LINDA POWELL GILMORE; MILLER & DIEPENBROCK, PA,

Defendants-Appellees. No. 03-3195 (D.C. No. 01-CV-4194-JAR)

(D. Kan.)* This order and judgment is not binding precedent, e xcept under the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 Plaintiffs-appellants’ appellate briefs contain add itional federal grounds for their claims, but we do not consider them because they were not presented to the district court. See Wilburn v. Mid-South Health Dev., Inc. , 343 F.3d 1274, 1280 (10th Cir. 2003). -2- ORDER AND JUDGMENT *

Before KELLY , Circuit Judge, BRORBY , Senior Circuit Judge, and BRISCOE , Circuit Judge.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist 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. Plaintiffs-appellants, proceeding pro se, challenge the district court’s judgment dismissing their claims brought under 42 U .S.C. §§ 1981, 1982, 1983, 1985 and 1986, Title VII, and Kansas state law. 1 The district court held that plaintiffs failed to state a claim upon which relie f can be granted on their federal claims, that diversity of citizenship was lacking b ecause all of the parties except one defendant resided in the State of Kansas, and that it did not have-3-

supplemental jurisdiction over the state-law claims because federal jurisdiction had not been established. Accordingly, the distric t court dismissed the case for lack of subject-matter jurisdiction, under Fed. R. Civ. P. 12(b)(1), and for failure to state a claim, under Rule 12(b)(6). We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and affirm. Defendants are attorneys at law. Plaintiffs engage d defendants to represent them in litigation filed in a Kansas state court. Dissatisfied with defendants’ representation and the outcome of the state-court l itigation, plaintiffs filed the underlying federal lawsuit. They sought relief forviolations of federal civil-rights statutes, as well as for legal malpractice, malice, fraud, ineffective counseling, obstruction and other claims. We review de novo an order dismissing a complaint u nder either Rule 12(b)(1) or 12(b)(6), using the same standard applied by the district court. Ordinance 59 Ass’n v. United States Dep’t of Interior Sec’y , 163 F.3d 1150, 1152 (10th Cir. 1998). “We accept as true all well-plea ded facts, as distinguished from conclusory allegations, and view those facts in the light most favorable to the nonmoving party.” Maher v. Durango Metals, Inc. , 144 F.3d 1302, 1304 (10th Cir. 1998). Dismissal of a complaint pursuant to Rule 12(b)(6) will be upheld only if “it appears beyond doubt that the pl aintiff can prove no set of facts in support of his claim which would entitle him to relief.” Conley v. Gibson ,-4-

355 U.S. 41, 45-46 (1957). Because plaintiffs are representing themselves on appeal, their pleadings will be liberally construed. See Haines v. Kerner , 404 U.S. 519, 520-21 (1972). We have carefully reviewed the record on appeal, as well as the briefs submitted by the parties. Applying the standards s et out above, we affirm the judgment of dismissal for substantially the same re asons stated by the district court in its carefully drawn memorandum and order d ated June 4, 2003. The judgment of the district court is AFFIRMED. Th e mandate shall issue forthwith.

Entered for the Court

Mary Beck Briscoe Circuit Judge