Kesler v. Countrywide Home Loans

• Court: Court of Appeals for the Tenth Circuit
• Decided: December 12, 2019
• Docket: 19-4072
• Status: Unpublished

Opinion

FILED United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS December 12, 2019 TENTH CIRCUIT Elisabeth A. Shumaker Clerk of Court

ALICIA KESLER,

Plaintiff - Appellant, No. 19-4072 v. (D.C. No. 2:18-CV-00469-RJS) COUNTRYWIDE HOME LOANS; SCOTT (D. Utah) LUNDBERG & ASSOCIATES; J. SCOTT LUNDBERG; ARGENT MORTGAGE; BACKMAN STEWART TITLE; FIRST FRANKLIN FINANCIAL; FIDELITY NATIONAL TITLE; PNC FINANCIAL SERVICES GROUP; FIRST AMERICAN TITLE; SELECT PORTFOLIO SERVICING; ANGELA ATENA; GREG OTT; GARY OTT; CHARLES BROWN & ASSOCIATES, doing business as Docsolution; ETITLE INSURANCE; SHELLPOINT; MTGLQ INVESTORS; NEW PENN FINANCIAL, doing business as Shellpoint Mortgage Servicing; STEPHANIE WESSEL; KEVIN MORAN; MARISSA RAMSEY; THE TRUSTEE COMPANY; LUNDBERG & ASSOCIATES; RM LIFESTYLES; LORI KING,

Defendants - Appellees.

ORDER AND JUDGMENT *

* This order and judgment is not binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th (continued...) Before HOLMES, MURPHY, and CARSON, Circuit Judges.

After examining the parties’ briefs and the appellate record, this panel has

determined unanimously that oral argument would not materially 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.

Alicia Kesler, proceeding pro se, filed suit against numerous defendants,

demanding in excess of one billion dollars for the nonjudicial foreclosure of her

mortgage. Kesler sought service of process by the United States Marshals. That

motion was denied without prejudice and she never renewed it. Eventually all

defendants moved to dismiss Kesler’s complaint under Fed. R. Civ. P. 4(m) for

failure to properly serve process. After Kesler failed to provide proof of lawful

and timely service of process, the district court dismissed Kesler’s complaint

without prejudice. Kesler appeals, though she does not address in any fashion the

propriety of the dismissal of her complaint for failing to timely and properly serve

the defendants.

Because the district court’s order of dismissal is not a final order, this court

lacks jurisdiction over Kesler’s appeal. Here, the district court’s order makes

clear that it was dismissing Kesler’s complaint, not her entire action. Moya v.

* (...continued) Cir. R. 32.1. Schollenbarger, 465 F.3d 444, 451 (10th Cir. 2006). That is, the district court’s

order of dismissal makes clear Kesler can file a new complaint and the case will

proceed as long as she properly and timely serves the defendants. Id.; see also

Brown v. Fisher, 251 F. App’x 527, 531 (10th Cir. 2007) (unpublished disposition

cited only for its persuasive value) (noting that when a district court order

dismissing a complaint under Rule 4(m) allows a plaintiff-appellant to “re-file

and properly serve his complaint,” the dismissal is not a final order under Moya).

Because the order on appeal is not final, this court lacks jurisdiction under

28 U.S.C. § 1291. Accordingly, this appeal is hereby DISMISSED.

ENTERED FOR THE COURT

Michael R. Murphy Circuit Judge

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