Kyte v. Kyte

• Court: Court of Appeals for the Tenth Circuit
• Decided: August 31, 2022
• Docket: 22-1213
• Status: Unpublished

Opinion

Appellate Case: 22-1213 Document: 010110732170 Date Filed: 08/31/2022 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT August 31, 2022 _________________________________ Christopher M. Wolpert Clerk of Court MEGAN KYTE,

Plaintiff - Appellant,

v. No. 22-1213 (D.C. No. 1:22-CV-00937-LTB-GPG) MARJORIE KYTE; PNC BANK, (D. Colo.)

Defendants - Appellees. _________________________________

ORDER AND JUDGMENT* _________________________________

Before MATHESON, KELLY, and ROSSMAN, Circuit Judges.** _________________________________

Plaintiff-Appellant Megan Kyte appeals from the district court’s dismissal of

her complaint for lack of subject matter jurisdiction. See Kyte v. Kyte, No. 22-cv-

00937, 2022 WL 3099231, at *2 (D. Colo. June 7, 2022). Exercising jurisdiction

under 28 U.S.C. § 1291, we dismiss Ms. Kyte’s appeal.

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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 Cir. R. 32.1. ** After examining the briefs and 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. Appellate Case: 22-1213 Document: 010110732170 Date Filed: 08/31/2022 Page: 2

Background

Ms. Kyte alleges that Marjorie Kyte and PNC Bank illegally opened a joint

bank account with Ms. Kyte without her consent in violation of an Ohio law

concerning minors, claiming jurisdiction under 12 U.S.C. § 632. R. 26–28. Upon a

magistrate judge’s recommendation, the district court found that Ms. Kyte made “no

allegations . . . which support [federal question] jurisdiction under 12 U.S.C. § 632,”

R. 34, and dismissed the complaint without prejudice, R. 35–36. Ms. Kyte failed to

object to the dismissal and instead appealed. See R. 38. Upon an order to show

cause from this court, Ms. Kyte stated that she failed to object to the magistrate

judge’s recommendation “due to the vague and ambiguous response to the federal

question presented to the Court.” Resp. to Show Cause Order, at 1 (July 25, 2022).

Discussion

A litigant generally waives her right to appellate review where she fails to

object to a magistrate judge’s recommendation. Sinclair Wyo. Refin. Co. v. A&B

Builders, Ltd., 989 F.3d 747, 783 (10th Cir. 2021). This applies to pro se litigants

except “when (1) a pro se litigant has not been informed of the time period for

objecting and the consequences of failing to object, or when (2) the ‘interests of

justice’ require review.” Morales-Fernandez v. I.N.S., 418 F.3d 1116, 1119 (10th

Cir. 2005). Under the “interests of justice” exception, this court may consider,

among other factors, “a pro se litigant’s effort to comply, the force and plausibility of

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the explanation for [her] failure to comply, and the importance of the issues raised.”

Id. at 1120.

The magistrate judge filed his recommendation in this case on June 7, 2022,

and notified Ms. Kyte that she had 14 days to object. See Kyte, 2022 WL 3099231,

at *1 n.1. Ms. Kyte never made any attempt to object. See R. 35. Her response to

this court’s show cause order is cursory. And as discussed below, Ms. Kyte has not

alleged facts sufficient to establish federal question jurisdiction. Thus, Ms. Kyte has

waived her right to appellate review, and none of the pro se exceptions are

applicable.

Even if Ms. Kyte had not waived her right to appellate review, her appeal

would still fail. We review subject matter jurisdiction de novo. Wells Fargo Bank,

N.A. v. Mesh Suture, Inc., 31 F.4th 1300, 1306 (10th Cir. 2022). Federal courts have

limited jurisdiction. Home Depot U.S.A., Inc. v. Jackson, 139 S. Ct. 1743, 1746

(2019). The party asserting jurisdiction has the burden of establishing it. Devon

Energy Prod. Co., L.P. v. Mosaic Potash Carlsbad, Inc., 693 F.3d 1195, 1201 (10th

Cir. 2012). And while this court construes pro se complaints liberally, pro se

litigants “must comply with the same rules of procedure as other litigants.” Requena

v. Roberts, 893 F.3d 1195, 1205 (10th Cir. 2018).

Here, Ms. Kyte initially claimed federal question jurisdiction based on a

federal criminal statute. When the magistrate judge informed her of this defect, she

claimed diversity jurisdiction in an amended complaint without any elaboration. She

then settled on 12 U.S.C. § 632 in her second amended complaint. R. 26. Section

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632 concerns international banking, Sheet Metal Workers Int’l Ass’n, AFL-CIO v.

Seay, 693 F.2d 1000, 1004 (10th Cir. 1982), and confers federal question jurisdiction

only where the suit “arise[s] out of an offshore banking or financial transaction of

that federally chartered corporation,” Am. Int’l Grp., Inc. v. Bank of Am. Corp., 712

F.3d 775, 784 (2d Cir. 2013). As Ms. Kyte makes no such allegations, federal

question jurisdiction does not exist. Although Ms. Kyte suggests other provisions

that might confer jurisdiction on appeal, we do not consider them as they were not

presented to the district court. See Little v. Budd Co., 955 F.3d 816, 821 (10th Cir.

2020).

Ms. Kyte has moved for in forma pauperis (IFP) status to proceed on appeal

without prepayment of fees. In deciding whether to grant such a motion, a movant

“must show a financial inability to pay the required filing fees and the existence of a

reasoned, nonfrivolous argument on the law and facts in support of the issues raised

on appeal.” DeBardeleben v. Quinlan, 937 F.2d 502, 505 (10th Cir. 1991). The

eventual merit, or lack thereof, of the arguments raised is not the test. Ragan v. Cox,

305 F.2d 58, 60 (10th Cir. 1962). But in order to demonstrate a rational argument on

the law or the facts on appeal, a movant generally must make some attempt to engage

with the district court or magistrate judge’s reasoning and explain why it is incorrect.

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We DISMISS Ms. Kyte’s appeal, and DENY her motion to proceed IFP

because she makes no rational argument on the law or the facts.

Entered for the Court

Paul J. Kelly, Jr. Circuit Judge