Jenkins v. MTGLQ Investors

218 F. App'x 719
Court of Appeals for the Tenth Circuit·Decided February 9, 2007·No. Nos. 05-4057, 05-4237 & 05-4287, 06-4051·Published·Cited by 39 cases

Opinion

ORDER AND JUDGMENT*

WADE BRORBY, Circuit Judge.

Plaintiff-appellant Lynn Jenkins, proceeding pro se, has four pending appeals, three of which, Nos. 05-4057, 05-4237, and 05- 4287, arise from one action and have been consolidated. The fourth appeal, No. 06- 4051, arises from a related matter, and we have combined it with the consolidated appeals for dispositional purposes only. Because Mr. Jenkins appears pro se, we review his pleadings and other papers liberally and hold them to a less stringent standard than those drafted by attorneys. See Hall v. Bellmon, 935 F.2d 1106, 1110 & n. 3 (10th Cir.1991). We have jurisdiction over all four appeals under 28 U.S.C. § 1291, and we affirm all of the district courts’ decisions at issue. We also propose filing restrictions on Mr. Jenkins based on his litigation conduct in case No. 06 — 4051.

The Consolidated Appeals: Nos. 05-4057, 05-4237, and 05-4287

The consolidated appeals arise from a quiet title action Mr. Jenkins filed in Utah state district court concerning 22.59 acres of real property in Syracuse, Utah. In support of his claim that he was holder of [722] fee title to the land, he alleged that he had pledged the land as security for a loan obtained by a third party from the predecessor in interest of defendant-appellee MTGLQ Investors, a Delaware limited partnership in the business of purchasing and collecting unpaid loans. Based on that pledge, he claimed to be an “accommodation party” under Utah law, and based on that status, he asserted that MTGLQ’s refusal of his tender of a payoff amount effected a discharge of the debt, thus clearing title.

Mr. Jenkins did not serve a summons or a copy of the complaint on MTGLQ. Instead, he attempted to effectuate service by serving the Utah Division of Corporations and Commercial Code (Division) based on Utah Code Ann. § 48-2a-907(4), by which a foreign limited partnership “transacting business” in Utah without registration appoints the director of the Division as its agent for service of process. He did so despite the fact that whether or not MTGLQ was “transacting business” in Utah, as that term is defined under Utah law, was at issue in pending litigation between the parties in another Utah judicial district, and despite his familiarity with MTGLQ from the litigation that underlies the appeal we have combined with the consolidated appeals. He then obtained a default judgment against MTGLQ for nearly $2,000,000.

Several months later MTGLQ learned of Mr. Jenkins’s lawsuit after receiving a foreclosure report that disclosed a judgment lien against certain real property. MTGLQ then removed the state suit to federal court under 28 U.S.C. § 1441(a) based on diversity of citizenship and successfully moved to set aside the default judgment under Fed.R.Civ.P. 60(b) based on the defective service. In setting aside the default judgment, the district court found, among other things, that MTGLQ was not transacting business in Utah as that term is defined under Utah law and that service on the Division was improper. The court also denied Mr. Jenkins’s motion to dismiss or strike, which essentially was a motion to remand. From that interlocutory order Mr. Jenkins filed an appeal, which we dismissed for lack of jurisdiction. See Jenkins v. MTGLQ Inv., No. 04-4107 (10th Cir. Aug. 20, 2004) (order dismissing appeal).

Thereafter, the district court granted MTGLQ’s motion to dismiss the case for failure to state a claim upon which relief can be granted, concluding, among other things, that Mr. Jenkins lacked standing because he had sold the property in question prior to filing suit and because he was not an accommodation party under Utah law. Finding the filing of the case and its continued prosecution to be frivolous and abusive, the district court assessed a $1,000 sanction against Mr. Jenkins under Fed.R.Civ.P. 11 and later awarded $15,000 in attorney’s fees to MTGLQ. The court also issued orders of contempt to Mr. Jenkins for failing to abide by the court’s order to sign papers necessary to vacate and set aside invalid judgments he had filed or domesticated against MTGLQ in foreign jurisdictions that were based on the default judgment. The court eventually remanded him to the custody of the United States Marshals for his continued refusal to sign the necessary papers but, several weeks later, granted his motion for release from custody due to his declining mental and physical health. The court also denied Mr. Jenkins’s motions for a stay of appeal and a new trial.

The consolidated appeals arise from the orders discussed above. For the reasons stated below, we affirm all of those decisions.

In his appellate brief, Mr. Jenkins argues that removal was improper because [723] MTGLQ did not establish complete diversity of citizenship. He did not raise this issue in the district court, but because it is jurisdictional, we must review it. See Basso v. Utah Power & Light Co., 495 F.2d 906, 909 (10th Cir.1974). We review the propriety of removal de novo. Martin v. Franklin Capital Corp., 251 F.3d 1284, 1289 (10th Cir.2001).

In Carden v. Arkoma Associates, the Supreme Court held that the citizenship of a limited partnership for diversity purposes depends on the citizenship of all its members and left to Congress the task of extending the corporation-citizenship rule of 28 U.S.C. § 1332(c)1 to unincorporated entities. 494 U.S. 185, 195-97, 110 S.Ct. 1015, 108 L.Ed.2d 157 (1990). In order to effect removal under 28 U.S.C. § 1441(a) based on diversity of citizenship, therefore, a limited partnership must show that the citizenship of all its general and limited partners is diverse from the plaintiff.2

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Jenkins v. MTGLQ Investors, 218 F. App'x 719 (10th Cir. 2007).

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