FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT March 19, 2020 _________________________________ Christopher M. Wolpert Clerk of Court REED KIRK MCDONALD,
Plaintiff - Appellant,
v. No. 19-1101 (D.C. No. 1:18-CV-00105-CMA-NRN) EAGLE COUNTY, a quasimunicipal (D. Colo.) corporation and political subdivision of the State of Colorado; BELLCO CREDIT UNION,
Defendants - Appellees. _________________________________
ORDER AND JUDGMENT* _________________________________
Before TYMKOVICH, Chief Judge, HARTZ and BACHARACH, Circuit Judges. _________________________________
Reed Kirk McDonald appeals from the district court’s order granting Eagle
County’s and Bellco Credit Union’s (“Bellco”) motions to dismiss under Fed. R. Civ.
P. 12(b)(1), and awarding them attorney fees incurred in defending against
McDonald’s suit. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm the
* 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. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. dismissal and award of fees; however, we remand the case for the court to amend the
judgment to reflect a dismissal without prejudice.
I. BACKGROUND
McDonald’s federal suit was based on two unrelated Colorado state court
cases.
A. Eagle County Suit
The first suit, filed in 2009 in Eagle County District Court (“Eagle Court”),
was an action by McDonald against Zions First National Bank (“Zions”), in which he
alleged Zions breached a loan agreement and the duty of good faith and fair dealing
when it failed to advance the draws he requested. Zions denied the allegations and
counterclaimed for a deficiency judgment. Shortly after the Eagle Court granted
summary judgment in favor of Zions on McDonald’s claims, Zions voluntarily
dismissed its counterclaim without prejudice. Thereafter, the Eagle Court awarded
Zions $102,267.75 in attorney fees and costs incurred in defending against
McDonald’s suit.
When McDonald tried to appeal—including an appeal of Zions’s voluntary
dismissal of its counterclaim without prejudice—the Colorado Court of Appeals
ordered him to obtain certification under Colo. R. Civ. P. 54(b), “because the cross-
claims [sic] were dismissed without prejudice, [and therefore] an appealable order
has not entered.” R., Vol. I at 30. The court noted if it “had found that a final and
appealable order had been entered, it would have found that the time for filing an
appeal had not started to run because there was no evidence that [McDonald] ever
2 was served a copy of the [Eagle Court’s] order.” Id. at 30-31. McDonald’s appeal
was dismissed when he failed to obtain certification. Sometime later, as part of its
efforts to collect the judgment for attorney fees and costs, Zions obtained a writ of
garnishment from the Eagle Court for an account McDonald maintained at Bellco.
B. Arapahoe County Suit
The second suit, filed by Bellco in county court in Arapahoe County in 2016,
was a collection action against McDonald for an unpaid debt of $14,664.09—it had
nothing to do with Zions’s garnishment of McDonald’s Bellco account several years
earlier in the Eagle Court litigation. Nonetheless, McDonald filed counterclaims
against Bellco and a third-party claim against Eagle County for perceived violations
of his due process right by the Eagle Court in the 2009 suit. At the same time,
McDonald removed the action to the Arapahoe County district court (the “Arapahoe
County litigation”). Eventually, McDonald’s counterclaims and third-party claims
were dismissed, leaving only Bellco’s original collection claim.
C. Federal Court Suit
Shortly after Bellco filed a motion for summary judgment in the Arapahoe
County litigation, McDonald sued Eagle County in federal court. Days later,
McDonald attempted to avoid summary judgment by filing a pleading in the federal
suit titled “Notice of Removal . . . Complaint and Jury Demand,” id. at 246, which
asserted four claims against Bellco. From that point forward, McDonald
maintained—and continues to maintain—there was no state proceeding because the
Arapahoe County litigation had been removed to federal court.
3 Next, McDonald filed an amended complaint in the federal suit adding Bellco
as a defendant. The amended complaint also alleged four claims against Eagle
County, all of which were based on the outcome in the Eagle Court litigation:
(1) under 42 U.S.C. § 1983 for violating his Fifth and Fourteenth Amendment rights
by “fail[ing] its obligation to obey the Court of Appeals Order [to provide] due
process and equal protection” and by “refusing to conclude the [litigation in Eagle
Court], id. at 314; (2) under § 1983 for violating his Fourth Amendment rights by
“knowingly fil[ing] and issu[ing] [a] writ allowing [Zions] to seize Plaintiff’s bank
accounts to financially prevent [him] from pursuing his civil case,” R., Vol. I at 316;
(3) under § 1983 for violating “the United States Constitution” by “knowingly and
improperly refus[ing] under color of state law to allow Plaintiff to present his case
against [Zions],” id. at 317; and (4) under 42 U.S.C. § 1985 for conspiring with the
clerk of the Eagle Court and Zions to violate his civil rights.
As to Bellco, McDonald realleged the failed defenses and/or counterclaims he
raised in the Arapahoe County suit: (1) violation of his Fourteenth Amendment
rights by refusing to dismiss its collection suit and “conspir[ing] with [the] state court
to prosecute a civil action out-of-time in violation of Colorado’s statute of
limitations,” id. at 320; (2) violation of the federal Fair Debt Collection Practices
Act; (3) violation of Colorado’s Fair Debt Collection Practices Act; and (4) violation
of his First Amendment rights to privacy “by trespassing his gated property to
illegally search and seize Plaintiff’s personal property,” id. at 324.
4 D. Disposition of Federal and Arapahoe County Litigation
Thereafter, the Arapahoe County district court determined McDonald’s
attempted removal was improper and entered summary judgment in favor of Bellco
on its collection claim. McDonald appealed.
While McDonald’s appeal was pending, Eagle County and Bellco moved to
dismiss the federal suit on several grounds. Relevant to the issues on appeal, the
magistrate judge recommended the following: (1) dismissal of the claims against
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FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT March 19, 2020 _________________________________ Christopher M. Wolpert Clerk of Court REED KIRK MCDONALD,
Plaintiff - Appellant,
v. No. 19-1101 (D.C. No. 1:18-CV-00105-CMA-NRN) EAGLE COUNTY, a quasimunicipal (D. Colo.) corporation and political subdivision of the State of Colorado; BELLCO CREDIT UNION,
Defendants - Appellees. _________________________________
ORDER AND JUDGMENT* _________________________________
Before TYMKOVICH, Chief Judge, HARTZ and BACHARACH, Circuit Judges. _________________________________
Reed Kirk McDonald appeals from the district court’s order granting Eagle
County’s and Bellco Credit Union’s (“Bellco”) motions to dismiss under Fed. R. Civ.
P. 12(b)(1), and awarding them attorney fees incurred in defending against
McDonald’s suit. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm the
* 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. 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. dismissal and award of fees; however, we remand the case for the court to amend the
judgment to reflect a dismissal without prejudice.
I. BACKGROUND
McDonald’s federal suit was based on two unrelated Colorado state court
cases.
A. Eagle County Suit
The first suit, filed in 2009 in Eagle County District Court (“Eagle Court”),
was an action by McDonald against Zions First National Bank (“Zions”), in which he
alleged Zions breached a loan agreement and the duty of good faith and fair dealing
when it failed to advance the draws he requested. Zions denied the allegations and
counterclaimed for a deficiency judgment. Shortly after the Eagle Court granted
summary judgment in favor of Zions on McDonald’s claims, Zions voluntarily
dismissed its counterclaim without prejudice. Thereafter, the Eagle Court awarded
Zions $102,267.75 in attorney fees and costs incurred in defending against
McDonald’s suit.
When McDonald tried to appeal—including an appeal of Zions’s voluntary
dismissal of its counterclaim without prejudice—the Colorado Court of Appeals
ordered him to obtain certification under Colo. R. Civ. P. 54(b), “because the cross-
claims [sic] were dismissed without prejudice, [and therefore] an appealable order
has not entered.” R., Vol. I at 30. The court noted if it “had found that a final and
appealable order had been entered, it would have found that the time for filing an
appeal had not started to run because there was no evidence that [McDonald] ever
2 was served a copy of the [Eagle Court’s] order.” Id. at 30-31. McDonald’s appeal
was dismissed when he failed to obtain certification. Sometime later, as part of its
efforts to collect the judgment for attorney fees and costs, Zions obtained a writ of
garnishment from the Eagle Court for an account McDonald maintained at Bellco.
B. Arapahoe County Suit
The second suit, filed by Bellco in county court in Arapahoe County in 2016,
was a collection action against McDonald for an unpaid debt of $14,664.09—it had
nothing to do with Zions’s garnishment of McDonald’s Bellco account several years
earlier in the Eagle Court litigation. Nonetheless, McDonald filed counterclaims
against Bellco and a third-party claim against Eagle County for perceived violations
of his due process right by the Eagle Court in the 2009 suit. At the same time,
McDonald removed the action to the Arapahoe County district court (the “Arapahoe
County litigation”). Eventually, McDonald’s counterclaims and third-party claims
were dismissed, leaving only Bellco’s original collection claim.
C. Federal Court Suit
Shortly after Bellco filed a motion for summary judgment in the Arapahoe
County litigation, McDonald sued Eagle County in federal court. Days later,
McDonald attempted to avoid summary judgment by filing a pleading in the federal
suit titled “Notice of Removal . . . Complaint and Jury Demand,” id. at 246, which
asserted four claims against Bellco. From that point forward, McDonald
maintained—and continues to maintain—there was no state proceeding because the
Arapahoe County litigation had been removed to federal court.
3 Next, McDonald filed an amended complaint in the federal suit adding Bellco
as a defendant. The amended complaint also alleged four claims against Eagle
County, all of which were based on the outcome in the Eagle Court litigation:
(1) under 42 U.S.C. § 1983 for violating his Fifth and Fourteenth Amendment rights
by “fail[ing] its obligation to obey the Court of Appeals Order [to provide] due
process and equal protection” and by “refusing to conclude the [litigation in Eagle
Court], id. at 314; (2) under § 1983 for violating his Fourth Amendment rights by
“knowingly fil[ing] and issu[ing] [a] writ allowing [Zions] to seize Plaintiff’s bank
accounts to financially prevent [him] from pursuing his civil case,” R., Vol. I at 316;
(3) under § 1983 for violating “the United States Constitution” by “knowingly and
improperly refus[ing] under color of state law to allow Plaintiff to present his case
against [Zions],” id. at 317; and (4) under 42 U.S.C. § 1985 for conspiring with the
clerk of the Eagle Court and Zions to violate his civil rights.
As to Bellco, McDonald realleged the failed defenses and/or counterclaims he
raised in the Arapahoe County suit: (1) violation of his Fourteenth Amendment
rights by refusing to dismiss its collection suit and “conspir[ing] with [the] state court
to prosecute a civil action out-of-time in violation of Colorado’s statute of
limitations,” id. at 320; (2) violation of the federal Fair Debt Collection Practices
Act; (3) violation of Colorado’s Fair Debt Collection Practices Act; and (4) violation
of his First Amendment rights to privacy “by trespassing his gated property to
illegally search and seize Plaintiff’s personal property,” id. at 324.
4 D. Disposition of Federal and Arapahoe County Litigation
Thereafter, the Arapahoe County district court determined McDonald’s
attempted removal was improper and entered summary judgment in favor of Bellco
on its collection claim. McDonald appealed.
While McDonald’s appeal was pending, Eagle County and Bellco moved to
dismiss the federal suit on several grounds. Relevant to the issues on appeal, the
magistrate judge recommended the following: (1) dismissal of the claims against
Eagle County for lack of subject-matter jurisdiction under the Rooker-Feldman
doctrine1; (2) dismissal of the claims against Bellco under the Younger abstention
doctrine2 if the state-court proceedings had not concluded, or under Rooker-Feldman
if the proceedings were completed; and (3) an award of attorney fees to Eagle County
and Bellco.
In his objections to the magistrate judge’s recommendations, McDonald
argued that Rooker-Feldman and Younger did not apply, and in any event, the
dismissal should be without prejudice. On de novo review, the district court affirmed
the magistrate judge’s recommendation to dismiss the claims with prejudice under
Rooker-Feldman and Younger. The district court reviewed the recommendation to
award attorney fees for clear error and affirmed.
1 See Rooker v. Fid. Tr. Co., 263 U.S. 413 (1923); D.C. Court of Appeals v. Feldman, 460 U.S. 462 (1983). 2 See Younger v. Harris, 401 U.S. 37 (1971).
5 An “update” recently filed by McDonald confirms the Arapahoe County suit is
still ongoing. Shortly after the federal district court entered its order in March 2019,
the Colorado Court of Appeals decided McDonald’s appeal, affirming the state
court’s judgment. Bellco Credit Union v. McDonald, No. 18CA0689, 2019 WL
1873422 (Colo. App. Apr. 25, 2019) (unpublished). When the Colorado Supreme
Court denied certiorari review, McDonald v. Bellco Credit Union, No. 19SC475,
2019 WL 4643619 (Colo. Sept. 23, 2019) (unpublished), McDonald filed a petition
for a writ of certiorari in the United States Supreme Court, which has not been
resolved. McDonald v. Bellco Credit Union, 2020 WL 290965 (U.S. Jan. 15, 2020)
(No. 19-895).
II. STANDARD OF REVIEW
We review de novo the district court’s dismissal under both the Rooker-
Feldman doctrine and the Younger abstention doctrine. Campbell v. City of Spencer,
682 F.3d 1278, 1281 (10th Cir. 2012) (Rooker-Feldman); Taylor v. Jaquez, 126 F.3d
1294, 1296 (10th Cir. 1997) (Younger).
III. ANALYSIS
A. Claims Against Eagle County
The Rooker-Feldman doctrine bars “cases brought by state-court losers
complaining of injuries caused by state-court judgments rendered before the district
court proceedings commenced and inviting district court review and rejection of
those judgments.” Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280,
284 (2005).
6 McDonald argues the district court erred by determining his claims against
Eagle County are barred by Rooker-Feldman. We will not consider McDonald’s
argument because he has failed to adequately brief the issue; instead, he continues to
denounce the actions of the Eagle County District Court, Bellco, the magistrate
judge, and the district court. McDonald’s failure to adequately brief the issue means
that we will not consider the issue on appeal. See Holmes v. Colo. Coal. For
Homeless Long Term Disability Plan, 762 F.3d 1195, 1199 (10th Cir. 2014)
(declining to consider arguments on appeal that were inadequately briefed); Murrell
v. Shalala, 43 F.3d 1388, 1390 n.2 (10th Cir. 1994) (declining to consider “a few
scattered statements” and “perfunctory” arguments that failed to develop an issue).
We affirm the district court’s dismissal of McDonald’s claims against Eagle
County as barred by Rooker-Feldman.
B. Claims Against Bellco
In contrast with the Rooker-Feldman doctrine, the Younger abstention doctrine
applies when state proceedings have not concluded; it “dictates that federal courts not
interfere with state court proceedings by granting equitable relief—such as
injunctions of important state proceedings or declaratory judgments regarding
constitutional issues in those proceedings—when such relief could adequately be
sought before the state court.” Amanatullah v. Colo. Bd. of Med. Exam’rs, 187 F.3d
1160, 1163 (10th Cir. 1999) (internal quotation marks omitted). Younger abstention
is non-discretionary and must be applied when three conditions exist:
7 (1) there is an ongoing state criminal, civil, or administrative proceeding, (2) the state court provides an adequate forum to hear the claims raised in the federal complaint, and (3) the state proceedings involve important state interests, matters which traditionally look to state law for their resolution or implicate separately articulated state policies.
Id. (internal quotation marks omitted).
Once again, we will not consider McDonald’s argument because he has failed
to adequately brief the issue; instead of addressing Younger, he excoriates the Eagle
County District Court, Bellco, the magistrate judge, and the district court.
McDonald’s failure to adequately brief the issue means that we will not consider the
issue on appeal. See Holmes, 762 F.3d at 1199; Murrell, 43 F.3d at 1390 n.2.
We affirm the district court’s dismissal of McDonald’s claims against
Bellco under Younger.
C. Attorney Fees
The record shows that McDonald failed to object to the magistrate judge’s
recommendation to award Eagle County and Bellco their attorney fees incurred in
defending against the amended complaint. “We have adopted a firm waiver rule
when a party fails to object to the findings and recommendations of the magistrate.”
Duffield v. Jackson, 545 F.3d 1234, 1237 (10th Cir. 2008) (brackets and internal
quotation marks omitted). “The failure to timely object to a magistrate’s
recommendations waives appellate review of both factual and legal questions.” Id.
(internal quotation marks omitted). There are two exceptions to the rule; however,
neither exception applies here. As such, we will not consider the issue on appeal.
8 IV. CONCLUSION
We affirm the district court’s order of dismissal and award of attorney fees and
remand only for the district court to amend its judgment to reflect that the dismissal
is without prejudice. “A longstanding line of cases from this circuit holds that where
the district court dismisses an action for lack of jurisdiction, as it did here, the
dismissal must be without prejudice.” Brereton v. Bountiful City Corp., 434 F.3d
1213, 1216 (10th Cir. 2006). See also Chapman v. Oklahoma, 472 F.3d 747, 750
(10th Cir. 2006) (addressing Younger).
Entered for the Court
Timothy M. Tymkovich Chief Judge