Lundahl v. Halabi

773 F.3d 1061, 600 F. App'x 596, 2014 WL 6790747
CourtCourt of Appeals for the Tenth Circuit
DecidedDecember 3, 2014
Docket14-8000, 14-8002
StatusPublished
Cited by36 cases

This text of 773 F.3d 1061 (Lundahl v. Halabi) is published on Counsel Stack Legal Research, covering Court of Appeals for the Tenth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Lundahl v. Halabi, 773 F.3d 1061, 600 F. App'x 596, 2014 WL 6790747 (10th Cir. 2014).

Opinion

ORDER AND JUDGMENT *

CAROLYN B. McHUGH, Circuit Judge.

Plaintiff Holli LundahLfiled a lawsuit in Wyoming that was removed to federal court. The district court scheduled a hearing to resolve disputed issues as to whether it had diversity jurisdiction, including whether Ms. Lundahl had fraudulently joined a fictitious defendant, Ms. Ellam Halabi, to prevent removal. Ms. Lundahl unilaterally dismissed her case ninety minutes before that hearing. In No. 14-8000, Ms. Halabi, proceeding pro se, appeals a criminal contempt order and bench warrant issued for her failure to attend that hearing and the subsequent hearing scheduled for her to show cause why she should not be held in contempt. In No. 14-8002, Ms. Lundahl, proceeding pro se, 1 appeals the district court’s order imposing monetary sanctions and filing restrictions on her.

Because both Ms. Halabi and Ms. Lundahl appear pro se, we construe *943 their filings liberally. See Hall v. Bellmon, 935 F.2d 1106, 1110 & n. 3 (10th Cir.1991) (discussing Haines v. Kerner, 404 U.S. 519, 520-21, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972) (per curiam)). But this court will not act as a pro se litigant’s advocate. Id. at 1110. “Thus, although we make some allowances for ‘the pro se plaintiffs failure to cite proper legal authority, [her] confusion of various legal theories, [or her] poor syntax and sentence construction,’ ... the court cannot take on the responsibility of serving as the litigant’s attorney in constructing arguments and searching the record.” Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir.2005) (brackets omitted) (quoting Hall, 935 F.2d at.1110). We exercise jurisdiction in both appeals under 28 U.S.C. § 1291 and affirm.

Background

Ms. Lundahl filed a pro se complaint in Wyoming state court in January 2013 against Eli Lilly and Company (“Lilly”) and its attorney Cheryl Schrock (together, the “Lilly Defendants”), as well as the attorneys who represented Lilly in connection with Ms. Lundahl’s prior bankruptcy proceedings, Snell and Wilmer and Michael Johnson, (the “Snell Defendants”). Ms. Lundahl alleged the Lilly and Snell Defendants violated her state constitutional rights and conspired with federal judges to abuse the civil process in order to defeat her legal claims against Lilly, which are fairly described as a campaign of frivolous litigation that Ms. Lundahl has waged against Lilly for over twenty years. See R. Vol. 1, at 772 (listing the lawsuits she has filed against Lilly since 2005); Johnson v. Stock, No. 03-4219, 2005 WL 1349963, at *2-*3 (10th Cir. June 8, 2005) (describing her frivolous litigation against Lilly prior to 2005). The Lilly and Snell Defendants filed motions to dismiss in state court. In response, Ms. Lundahl filed a demand that the Wyoming state court enter a declaratory decree that a 2003 Bankruptcy Court judgment against her be declared void and set aside. Ms. Lundahl’s complaint also alleged that Ms. Halabi published unspecified internet articles placing her in a false light.

Removal. Based on Ms. Lundahl’s demand that the 2003 Bankruptcy Court order be vacated, the Lilly Defendants filed a notice of removal based on federal question jurisdiction. See 28 U.S.C. §§ 1331, 1441(a), The next day they supplemented their notice to add diversity of citizenship as a ground for removal, see id. §§ 1332, 1441, stating there was no evidence Ms. Lundahl ever served the sole Wyoming, defendant, Ms. Halabi. The Snell Defendants consented to removal; Ms. Halabi did not. Instead, Ms. Halabi filed a declaration in which she claimed she had been served and that complete diversity did not exist because both she and Ms. Lundahl were Wyoming residents.

The district court made a preliminary assessment that it did not have federal question jurisdiction and, as to its diversity jurisdiction, found that there were disputed fact issues related to residency and service of process. It set a hearing for November 22, 2013, and ordered both Ms. Lundahl and Ms. Halabi to appear in person. Ms. Lundahl filed a motion demanding the district court recuse and vacate the November 22 hearing. Ms. Halabi also moved to vacate the November 22 hearing, saying she was unavailable. The district court denied both motions.

The district court again ordered both Ms. Lundahl and Ms. Halabi to appear at the November 22 hearing, stating it suspected that Ms. Halabi “[did] not exist separately from Holli Lundahl” and had been fraudulently joined by Ms. Lun-dahl to defeat diversity and forestall re *944 moval. R. Vol. 1, at 349-50. Fraudulently joined defendants need not be considered for the purposes of determining complete diversity. See Smoot v. Chicago, Rock Island & Pac. R.R. Co., 378 F.2d 879, 882 (10th Cir.1967) (“[Fjederal courts may look beyond the pleadings to determine if the joinder, although fair on its face, is a sham or fraudulent device to prevent removal.”); Butcher v. Matheson, 733 F.3d 980, 987-88 (10th Cir.2013). The court gave several reasons why it suspected Ms. Lundahl had fraudulently joined Ms. Halabi: (1) Ms. Halabi’s pleadings in the case put forth arguments that favored Ms. Lundahl’s positions, but were contrary to her own interests and those of the other defendants; (2) Ms. Halabi’s filings bore a noticeable similarity in formatting to Ms. Lundahl’s filings, which used a very distinctive format; (3) there was no record Ms. Halabi was actually served; (4) Ms. Halabi’s motion requesting the November 22 hearing be rescheduled stated she was “presently” in Oklahoma, yet was postmarked from Wyoming; and (5) Ms. Lundahl had a history, noted by many courts, of perpetrating fraud on the court, including using aliases and falsifying documents. R. Vol. 1, at 346-50 & n.l. The court warned Ms. Halabi and Ms. Lundahl that the failure of either to appear at the November 22 hearing could result in a finding of contempt and/or issuance of an arrest warrant. Id. at 350.

November 22 Hearing. Ninety minutes before the November 22 hearing, Ms. Lun-dahl dismissed her case by filing a notice of voluntary dismissal pursuant to Fed. R.Civ.P. 41(a)(l)(A)(i). Her stated reason for dismissing the case was that the district court had fabricated false criminal charges against her and refused to recuse. The court opened the hearing by noting it had just seen Ms.

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773 F.3d 1061, 600 F. App'x 596, 2014 WL 6790747, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lundahl-v-halabi-ca10-2014.