UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ ROBERT M. LANE, Plaintiff - Appellant,

v. LUCAS BUCKLEY; DF WU LLC; DRAY, DYEKMAN REED AND HEALEY PC; GREGORY C. DYEKMAN; HATHAWAY AND KUNZ PC; COLLEEN LANE; MATTHEW W. LANE; PATRICIA E. LANE; SCOTT W. MEIER, CPA, Defendants - Appellees. No. 15-8111 (D.C. No. 2:15- CV-00155-NDF) (D. Wyo.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before KELLY , PORFILIO , and BALDOCK , Circuit Judges.

________________ _________________ Robert M. Lane, pro se, appeals the dist rict court’s denial of his emergency motion for a preliminary injunction (PI Motion). Exercising jurisdiction under 28 U.S.C. § 1292(a)(1), we affirm.

* After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not ma terially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel. It may be cite d, however, for its persuasi ve value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### March 17, 2016
Elisabeth A. Shumaker Clerk of Court2 BACKGROUND Mr. Lane filed a complaint in Arizona state court alleging (among other things and as relevant to this a ppeal) that one of the defenda nts—his sister, Patricia E. Lane—managed DFWU, LLC, whose sole owners were entities representing Mr. Lane’s retirement funds. According to Mr. Lane, she breached her fiduciary duties to him by loaning herself $2.2 millio n from DFWU with no requirement to make any payments for 40 year s. He asserted that the transaction violated DFWU’s operating agreement, pensi on and IRA agreements, stat e law, and the Internal Revenue Code. 1
A number of defendants removed the case to federal court and filed motions to dismiss or transfer the case to the District of Wyomi ng based on lack of personal jurisdiction in Arizona. While those moti ons were pending, Mr. Lane filed his PI Motion in which he sought to freeze $2.8 mil lion in assets of hi s sister and a number of other defendants (including her attorney) who allegedly assisted her in hiding what remains of the loan proceeds (some $1.6 million by Mr. Lane’s estimation) and to prohibit her from continuing to spend the loan proceeds. He alle ged that the loan deprived him of his ability to retire immediately (he was 62 at the time). The affected defendants sought extensions of ti me to respond to th e PI Motion until after the court disposed of the dismissal/transfer motions, a nd Mr. Lane sought default judgment on the PI motion against them.

1 The remainder of Mr. Lane’s claims arise from defendants’ agreement to transfer the assets (some $40 million) of two trus ts and a company, all created for his benefit, to the bankruptcy trustee in Mr. Lane’s persona l bankruptcy case.3 The Arizona district court th en transferred the case to the District of Wyoming. Soon after the transfer , the Wyoming district court dete rmined that responses to the PI Motion were unnecessary and denied the PI Motion. The court determined that Mr. Lane had not shown irreparable harm because he sought only economic relief and because he presented only speculation, not clear evidence, that the defendants would use the loan proceeds or that his sister would ha ve no way to pay any money judgment against her unless enjo ined from using the loan pr oceeds. The court recited that in his PI Motion, Mr. Lane had “merel y state[d] that ‘Defendants are likely to further spend the proceeds of the loan for their benefit’ and ‘P atricia Lane is not believed outside the proceeds of the loan to have the ability to repay the loan.’” R. at 507 (quoting R. at 220). The court denied as moot Mr. Lane’s motions for default judgment on the PI motion and the defe ndants’ motions for extensions of time to respond to the PI Moti on. Mr. Lane appeals. DISCUSSION We review the denial of preliminary injunctive relief for abuse of discretion. Heideman v. S. Salt Lake City , 348 F.3d 1182, 1188 (10th Cir. 2003). Under that standard, “we examine the district court’s factual findings for cl ear error and review its legal determinations de novo.” Id. To obtain preliminary injunctive relief, the movant must show “(1) [he] will suffer irreparable injury unless the injunction issues; (2) the threatened in jury outweighs whatever damage the proposed injunction may cause the opposing party; (3) the injunction, if issued, w ould not be adverse to the public interest; and (4) ther e is a substantial likelihood of success on the merits.” Id.4 (brackets, ellipsis, and qu otation omitted). “[A] prel iminary injunction is an extraordinary remedy, and . . . it should no t be issued unless the movant’s right to relief is clear and unequivocal .” Id. (emphasis added) (internal quotation marks omitted). We afford Mr. Lane ’s pro se filings a liberal construction but we do not act as his advocate. See Yang v. Archuleta , 525 F.3d 925, 927 n.1 (10th Cir. 2008). There was no abuse of discretion here. As the district court pointed out, Mr. Lane sought to forestall purely economic harm, which generally is insufficient to constitute irreparable harm. See, e.g. , Heideman , 348 F.3d at 1189 (“It is . . . well settled that simple economic loss usually does not, in and of itself, constitute irreparable harm; such losses are compen sable by monetary da mages.”). And he presented nothing but his own speculativ e opinions that any of the affected defendants would spend the balance of the loan or that his sister would be unable to pay on a money judgment if he were to preva il in the litigation. See R. at 257 (Mr. Lane’s affidavit stating “ I believe that only $1.6 mil lion or less of the $2.8 million owed still remains and that Defendants are spending the funds” and “ I do not believe that Patricia Lane ha s the ability to repay the loan without the loan proceeds” (emphases added)). These opinions do not demonstr ate that he has a “clear and unequivocal” right to prel iminary injunctive relief. Heideman , 348 F.3d at 1188 (internal quotation marks omitted). Furthe r, the PI Mr. Lane requested would not return any of the money to him, so it is of no consequence to the irreparable-harm analysis whether the loan has deprived him of the ability to immediately retire or that he currently appears to be indigent.5 Mr. Lane’s arguments to the contrary ar e unpersuasive. He contends that the district court clerk should have granted his motion fo r a default judgment on the PI Motion because none of the affected defendan ts filed a timely response to the motion but instead filed untimely moti ons for extensions of time to respond. But a default judgment is available when a defendant fails to defend against the claims against it.
See Fed. R. Civ. P. 55(a). It is not available simply b ecause a party does not file a timely response to a PI Motion. Mr. Lane also posits that because th e district court discussed only the irreparable-harm factor, the c ourt presumed he was likely to prevail on the merits of his case, which in turn entitled him to a presumption of irrepa rable harm. This argument is not only circular but rests on a fundamental misreadi ng of the district court’s analysis. Because Mr. Lane had to s how all four PI factor s, the court focused on his inability to meet one of them—the irreparable-harm factor—which was dispositive. The court did not implicitly determine he was likely to prevail on the merits of his case. Mr. Lane further suggests the district c ourt may have been biased against him because “some judges and court personnel syst ematically discriminate against [pro se] litigants.” Aplt. Opening Br. at 4. This accu sation is speculative, wholly conclusory, and apparently based only on th e fact that district court ruled against him. Accusations of this sort are insufficient to show judicial bias. See Willner v. Univ. of Ks. , 848 F.2d 1023, 1027 (10th Cir. 1988) (“An unsubstantiated suggestion of personal bias or prejudice is insuffi cient to mandate recusal . . . .”).6 Finally, Mr. Lane raises a number of argum ents that he did not present in his PI motion. We generally do not consider arguments ra ised for the first time on appeal. See Daigle v. Shell Oil Co. , 972 F.2d 1527, 1539 (10th Cir. 1992). Further, most of the arguments appear for the firs t time in his appellate reply brief, which places another significant procedural ba rrier between them and our review. See United States v. Murray , 82 F.3d 361, 363 n.3 (10th Ci r. 1996) (“We decline to consider arguments raised fo r the first time in a reply brief.”). We will, however, briefly comment on two of his reply-brief arguments. First, Mr. Lane contends that his affidavit setting forth his opinion constitutes unrebutte d evidence of irreparable harm. This, however, confuses the use of affidavits at the summary-judgment stage with what is required un der the PI standard. Compare Hansen v. PT Bank Negara Indonesia (Persero) , 706 F.3d 1244, 1250 ( 10th Cir. 2013) (“[A]ffi davits are entirely proper on summary judgment . . . .”), with Snyder v. Am. Kennel Club , 575 F. Supp. 2d 1236, 1240 (D. Kan. 200 8) (“A party seeking a preliminary injunction must make its case not by me re allegations, but by clear proof.”). Furthermore, “[a]s a general rule, a prel iminary injunction should not issue on the basis of affidavits alone,” and “a district court shoul d be wary of issuing an injunction based solely upon allegations and conclusory affidavits submitted by plaintiff.” Atari Games Corp. v. Nintendo of Am., Inc. , 897 F.2d 1572, 1575 (Fed. Cir. 1990). Second, Mr. Lane contends that the defendants are barred from raising any arguments on appeal because they filed no responses to the PI Motion. This7 argument overlooks that the di strict court determined it could decide the PI Motion without a response from any of the defe ndants, so the court never ruled on the defendants’ motions for extens ions of time to respond. In these circumstances, the defendants are free to defend the grounds of the district court’s decision unhampered by any forfeiture or waiver rules. CONCLUSION The district court’s order denying Mr. Lane’s emergency motion for a preliminary injunction is affirmed. We grant Mr. Lane’s motion to proceed in forma pauperis on appeal and remind him that he remain s obligated to pay the fee in full. Mr. Lane’s motion to expedite th is appeal is denied as moot.

Entered for the Court

John C. Porfilio Circuit Judge