UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

________________ _________________ EPHRAIM WOODS, JR., Plaintiff - Appellant,

v. KENDRA ROSS; CHERYL ROSS, Defendants - Appellees.

––––––––––––––––––– –––––––––––––––– DWIGHT JOHNSON, Plaintiff - Appellant,

v. KENDRA ROSS; CH ERYL ROSS, Defendants - Appellees.

––––––––––––––––––– –––––––––––––––– RAASIKH ROBERTSON, Plaintiff - Appellant,

v. KENDRA ROSS; CH ERYL ROSS, Defendants - Appellees. No. 22-3046 (D.C. No. 2:21-CV -02011-DDC-TJJ) (D. Kan.)

No. 22-3058 (D.C. No. 2:21-CV -02013-DDC-TJJ) (D. Kan.)

No. 22-3059 (D.C. No. 2:21-CV -02014-DDC-TJJ) (D. Kan.)

________________ _________________ FILED United States Court of Appeals Tenth Circuit 

### February 7, 2023 Christopher M. Wolpert Clerk of Court Appellate Case: 22-3046 Document: 010110809439 Date Filed: 02/07/2023 Page: 12 ORDER AND JUDGMENT *

________________ _________________ Before HARTZ , TYMKOVICH , and MATHESON , Circuit Judges.

________________ _________________ The appeals in these consolid ated cases arise from the district court’s judgment dismissing Plaintiffs’ actions for failure to state a claim for relief. Exercising jurisdiction under 28 U.S.C. § 129 1, we affirm in each appeal.
I. BACKGROUND In 2017, Kendra Ross filed a federal laws uit against The Valu e Creators, Inc., formerly known as the United Nation of Is lam, Inc. (UNOI); UNOI’s leader, Royall Jenkins; and related entities. Kendra a nd her mother, Cheryl Ross, were UNOI members. 1 Kendra alleged the defendants had tr afficked her and forced her into unpaid labor from the age of 11 until she was 21. The district court granted Kendra’s motion for default judgment and aw arded her nearly $8 million. See Ross v. Jenkins , 325 F. Supp. 3d 1141, 1153 (D. Kan. 2018).

* After examining the briefs and appella te record, this pa nel 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 This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel.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.

1 The brief for Kendra and Cheryl Ross refe rs to them by their first names. We do the same to avoid confusion. Appellate Case: 22-3046 Document: 010110809439 Date Filed: 02/07/2023 Page: 23 In 2020, three UNOI members (Messrs. Woods, Johnson, and Robertson) filed separate but similar pro se actions in Ka nsas state court against Kendra and Cheryl for breach of contract and defamation. Kendra removed the cases to federal court and moved to dismiss the complaints under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim. The district court granted Kendra’ s motions to dismiss and denied Plaintiffs’ various motions, including motions fo r recusal, to remand, and for default judgment. The court also ordere d Plaintiffs to show cause why the court should not dismiss their complaints ag ainst Cheryl, who had not entered an appearance in the case. Pl aintiffs responded and sought a default judgment against Cheryl. After further proceedi ngs not relevant to this app eal, the district court denied the motions for default judgment against Cheryl and dismissed the cases with prejudice. Plaintiffs appealed, and we consolidated their appeal s. Because Plaintiffs’ filings in the district cour t and this court are material ly similar, we cite to Mr. Woods’s filings and the record in his appeal.
II. DISCUSSION We construe Plaintiffs’ pro se opening briefs liberally. 2 See Yang v. Archuleta , 525 F.3d at 925, 927 n.1 (10t h Cir. 2008). Plaintiffs ar gue that (1) removal was improper and therefore the district court la cked jurisdiction, (2 ) the district court

2 Plaintiffs did not file reply briefs. Appellate Case: 22-3046 Document: 010110809439 Date Filed: 02/07/2023 Page: 34 should have entered default j udgment against Kendra and Ch eryl, and (3) the district court judge was biased against them.
A. Removal Plaintiffs contend that Kendra’s re moval was untimely and therefore the district court lacked jurisdiction. 3 But as explained below, they failed to argue in district court that removal was untimel y, and they have not argued here for plain-error review. Plainti ffs therefore have waived th is issue, and we are not required to consider it because it is not jurisdictional. Legal Background Our discussion of this issue refers to three different 30-day time limits: (1) The summons served on Kendra in th e state court action said she had 30 days to file a responsive pleading. (2) Under 28 U.S.C. § 1446(b)(1), the d efendant must file a notice of removal “within 30 days after the receipt by the defendant, through service or otherwise, of a copy of the initial pl eading setting forth the claim for relief upon which such action or proceeding is based.” (3) Under 28 U.S.C. § 1447(c), “A moti on to remand the case on the basis of any defect other than lack of subject matter jurisdiction must be made within 30 days after the filing of the notice of removal under section 1446(a).”

3 Our independent review shows no error in the district court’s determination that diversity jurisdiction existed. Plaintiffs do not contend otherwise. Appellate Case: 22-3046 Document: 010110809439 Date Filed: 02/07/2023 Page: 45 Additional Procedural Background In the state court action, Plaintiffs served Cheryl on October 1, 2020, and allegedly served Kendra on October 7, 20 20. The summonses said the Defendants had 30 days to file an answ er. Neither one did. On December 17 and 23, 2020, Plaintiffs Woods and Johnson filed motions for default in state court against both Defendants. On January 11, 2021, Kendra filed a notice of removal based on diversity jurisdiction. See 28 U.S.C. § 1332. She alleged th at because she had not yet been served with the state court summons, § 1446(b)(1)’s 30-day removal period had never begun. On January 22 and 25, 2021, Plaintiffs filed motio ns to transfer the case back to state court, ar guing that the federal district court lacked subject matter jurisdiction. The district court construe d Plaintiffs’ filings as mo tions to remand and denied them. It first concluded that diversity jurisdiction was proper. Also, although the motions were filed within 30 days of the removal under § 1447(c), the court determined Plaintiffs had “waived any argument that Kendra’s Notice of Removal was defective procedurally ” because they “challenge[d ] neither the timeliness of removal nor whether both defendants consente d to removal—procedural defects.” R., Vol. 2 at 135 n.4. Analysis On appeal, Plaintiffs do not contest the di strict court’s determination that they waived any challenge to the timeliness of removal. They t hus have waived appellate Appellate Case: 22-3046 Document: 010110809439 Date Filed: 02/07/2023 Page: 56 review of that ruling. See Sawyers v. Norton , 962 F.3d 1270, 1286 (10th Cir. 2020) (“Issues not raised in the opening brie f are deemed abandoned or waived.”). 4 Plaintiffs now argue removal was un timely. But they forfeited this argument—they failed to rais e it in district court. See Richison v. Ernest Grp., Inc. , 634 F.3d 1123, 1128 (10th Cir. 2011) (explaining that if a litigant fails to raise a legal theory in the district court, “we usually hold it forfeited,” rather than waived). And “we will reverse a district court’s judgment on the basis of a forf eited theory only if failing to do so would entrench a plainly erroneous result.” Id. Plaintiffs have not argued for plain-error review, so they have waived their timelin ess argument in this

court. Id. at 1131. Further, because an untimely notice of re moval is “[a] proce dural defect,” and such defects do “not involve the subject ma tter jurisdiction of the court and may be

4 In any event, Plaintiffs did not cha llenge the timeliness of removal within § 1447(c)’s 30-day period. In their district court filings made within that period, Plaintiffs twice mentioned a 30-day limit. First, their motions to remand stated: “I move to have [Kendr a’s attorney’s] filing [i.e., the notice of removal,] stricken and this case put back in the proper jurisdiction and the fact Kendra Ross has defaulted over the 30 day time limit [to respond to the summons] which clearly demonstrates that [h er attorney’s] filing is a moot point.” R., Vol. 1 at 179 (emphasis added). Second, Mr. Woods’s objection to Kendra’ s “Attorney . . . As A Moot Point” stated that “any filing once past the 30 days on the summons now becomes a moot point and has no foundation in law,” and “[a] default motion has been filed against [Defendants] and both we re given an additional 30 days over the required 30 day standard as per the summons and by the court rules.” Id. at 185 (emphasis added). These references concern Kendra’s failure to file a responsive pleading in state court within the 30-day deadline stated in the summons allegedly served on her, not her failure to file the notice of removal with in 30 days of the alleged service under § 1446(b)(1). Appellate Case: 22-3046 Document: 010110809439 Date Filed: 02/07/2023 Page: 67 waived,” we are not obligat ed to take up the issue sua sponte

. Huffman v. Saul Holdings Ltd. P’ship , 194 F.3d 1072, 1077 (10th Cir. 1999); see Daigle v. Shell Oil
Co. , 972 F.2d 1527, 1539 (10th Cir. 1992) (recogni zing “general rule [that] we refuse to consider arguments raised for the first time on appeal unl ess . . . jurisdiction is in question”). Plaintiffs also appear to argue th at removal was improper because Kendra failed to file an answer in state court within 30 days, as the summons instructed. But their supporting legal authority supports only that a plain tiff may seek a default when a defendant fails to timely respond to an in itial pleading. Plaintiffs provide no legal authority holding that a defendant who fail s to timely respond to an initial pleading may not remove a case to federal court.
B. Default Judgment Plaintiffs contend the dist rict court erred in not en tering default judgment in their favor. Our review is fo r an abuse of discretion. Bixler v. Foster , 596 F.3d 751, 761 (10th Cir. 2010). We see none. The district court provided three alternative bases to deny Plaintiffs’ motions for defau lt judgment. We need consider only one— that default judgment was not warranted becau se Plaintiffs failed to state a claim for relief under Rule 12(b)(6). 5 See Bixler , 596 F.3d at 762 (explaining that a district

5 The district court’s other two reasons for denying default judgment were (1) although Plaintiffs had filed a motion fo r default in state c ourt, that court had never acted on their motion, and they failed to file a motion for default in federal court; and (2) Kendra had not been properly served. Appellate Case: 22-3046 Document: 010110809439 Date Filed: 02/07/2023 Page: 78 court does not abuse its discretion by de nying default judgment where claims are “subject to dismissal under Rule 12(b)(6)” ). Plaintiffs have not challenged the district court’s conclusion that they failed to state a claim for relief, so they have waived appellate review of that ruling. See Sawyers , 962 F.3d at 1286. Because their claims were legally defi cient, they cannot show th e district court abused its discretion by refusing to enter default judgment.
C. Judicial Bias Plaintiffs filed motions to recuse th e district court j udge under 28 U.S.C. § 455(a), arguing he was biased because he had ruled in Kendra’s favor in Ross v. Jenkins . The district court denied their mo tions, explaining that “adverse rulings provide no reason for recusa l.” R., Vol. 2 at 131. A federal judge must recuse from “any proceeding in which his impartiality might reasonably be questioned. ” § 455(a). “We review a di stricts court’s denial of a motion to disqualify a judge for abuse of discretion.” Burke v. Regalado , 935 F.3d 960, 1052 (10t h Cir. 2019). Plaintiffs have failed to meet thei r “heavy burden of showing the requisite judicial bias.” Topeka Hous. Auth. v. Johnson , 404 F.3d 1245, 1248 (10th Cir. 2005). “[J]udicial rulings alone almost never constitute a valid basi s for a bias or partiality motion,” and “opinions formed by the judge on the basis of facts introduced or events occurring in the course of . . . prior pro ceedings[] do not constitute a basis for a bias or partiality motion unless th ey display a deep-seated fa voritism or antagonism that would make fair judg ment impossible.” Liteky v. United States , 510 U.S. 540, Appellate Case: 22-3046 Document: 010110809439 Date Filed: 02/07/2023 Page: 89 555 (1994). Indeed, we recently said that “judges need not ordinarily recuse after ruling on similar issues in other cas es involving the same parties.” Zen Magnets, LLC v. Consumer Prods. Safety Comm’n , 968 F.3d 1156, 1168 (10th Cir. 2020). On appeal, Plaintiffs summa rily repeat their argument that the district court judge was biased against them because of his ruling in Ross v. Jenkins . This argument fails to demonstrate any “favoriti sm or antagonism” ar ising from the ruling in that case that rendered the district j udge unable to make a fair judgment in these

cases. 6
III. CONCLUSION We affirm the district court’s judgments in each appeal. We deny the motions that Plaintiffs Johnson and Roberts on have filed to proceed on appeal in forma pauperis because they have failed to show the “existence of a reasoned, nonfrivolous argument on the law and facts in s upport of the issues raised.” Buchheit v. Green , 705 F.3d 1157, 1161 (10th Ci r. 2012) (quotations omi tted). Their filing and docketing fees are thus now due in full. We deny all other pending motions and mandamus petitions.

Entered for the Court

Scott M. Matheson, Jr. Circuit Judge

6 Plaintiffs raise no arguments bearing on the district court’s dismissal of their claims against Cheryl. Appellate Case: 22-3046 Document: 010110809439 Date Filed: 02/07/2023 Page: 9