FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT November 2, 2020 _________________________________ Christopher M. Wolpert Clerk of Court PAULA A. MITCHELL,
Plaintiff - Appellant,
v. No. 19-4098 (D.C. No. 2:18-CV-00636-CW) THE BANK OF NEW YORK MELLON, (D. Utah) a New York chartered bank; BRAD DEHAAN; HILLARY MCCORMACK; BRIGHAM LUNDBERG; LUNDBERG & ASSOCS, PC, a Utah professional corporation; NUVENTURE GROUP, LLC, a Utah limited liability company,
Defendants - Appellees,
and
STATUTORY BENEFICIARY DOES, 1-1000; REPURCHASING DOE; DOES 1001-2000,
Defendants. _________________________________
ORDER AND JUDGMENT * _________________________________
* 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 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. Before TYMKOVICH, Chief Judge, HOLMES and MORITZ, Circuit Judges. _________________________________
Paula A. Mitchell appeals from the district court’s judgment dismissing her
federal claims under Federal Rule of Civil Procedure 12(b)(6) and declining to
exercise supplemental jurisdiction over her state-law claims. Defendant The Bank of
New York Mellon (Bank) has filed a motion for monetary sanctions under Federal
Rule of Appellate Procedure 38 and 10th Circuit Rule 46.5 against both Ms. Mitchell
and her current appellate counsel on the ground that the appeal is frivolous and was
brought as a delay tactic. We agree with the Bank that the appeal is frivolous, but
only with respect to her current appellate attorney’s briefing and filing of an
appendix. Therefore, exercising jurisdiction under 28 U.S.C. § 1291, we affirm the
district court’s judgment and amended judgment, grant the Bank’s motion for
monetary sanctions against Ms. Mitchell’s current appellate counsel, deny the motion
for sanctions against Ms. Mitchell, and remand to the district court for the limited
purpose of determining the amount of the monetary award.
I. Background
In 2006, Ms. Mitchell obtained a loan secured by a deed of trust on real
property that was her residence. In 2010, the Bank, claiming it had obtained a
beneficial interest under the trust deed, pursued nonjudicial foreclosure against
Ms. Mitchell. In 2011, Ms. Mitchell sought to prevent foreclosure by filing an action
in Utah state district court against the Bank and others, which the parties here refer to
as Mitchell I. Among other things, she contended that the Bank lacked any beneficial
2 interest in the trust deed. The court ruled against Ms. Mitchell on all of her claims,
concluding, among other things, that the Bank was now the beneficiary of the trust
deed and had foreclosure authority. Ms. Mitchell appealed and later filed a motion to
dismiss her appeal for lack of jurisdiction, arguing that Mitchell I was not final. The
Utah Court of Appeals denied that motion, ruling that the district court had “resolved
all causes of action raised in the litigation.” Aplee. App., Vol. 1 at 181. It later
affirmed Mitchell I, see Mitchell v. ReconTrust Co. NA, 373 P.3d 189, 193 (Utah
App. 2016), and the Utah Supreme Court denied certiorari, see Mitchell v.
ReconTrust Co, 387 P.3d 508, 508 (Utah 2016).
While the appeal of Mitchell I was pending, the Bank initiated a judicial
foreclosure proceeding in Utah state district court, which the parties refer to as
Mitchell II. In that case, Ms. Mitchell filed a counterclaim contesting the finality of
Mitchell I. The Mitchell II court dismissed the counterclaim and granted summary
judgment to the Bank, concluding that the Bank was entitled to judicially foreclose
on Ms. Mitchell’s property. Ms. Mitchell appealed the Mitchell II ruling to the Utah
Court of Appeals. 1
After the Bank purchased the property at a sheriff’s sale, Ms. Mitchell filed the
instant action in federal district court against the Bank, the law firm that represented
1 The parties inform us that recently, the Utah Court of Appeals concluded that Mitchell II was not final because the state district court had not disposed of Ms. Mitchell’s third-party claims. Accordingly, the Utah Court of Appeals dismissed the appeal and remanded the case to the state district court. As discussed below, that ruling has no consequences for our disposition of this appeal.
3 the Bank in Mitchell II and several of the firm’s attorneys (collectively, Lundberg
Defendants), NuVenture Group, LLC, and various “Doe” defendants. She generally
alleged that the Bank did not own her mortgage and had no right to foreclose. She
asserted two federal claims for violations of due process under 42 U.S.C. § 1983 and
one federal claim for violations of the Fair Debt Collection Practices Act (FDCPA),
15 U.S.C. §§ 1692 to 1692p. She also asserted numerous state-law claims. She
sought declaratory relief effectively undoing the foreclosure sale and quieting title in
her favor, injunctive relief, and damages in the form of attorney’s fees.
The Bank moved to dismiss the complaint under Federal Rules of Civil
Procedure 12(b)(1) and 12(b)(6). The Bank also filed state-law counterclaims against
Ms. Mitchell for unlawful detainer, ejectment, and trespass, and a third-party
complaint against unknown defendants for ejectment and trespass. Ms. Mitchell
moved to dismiss the counterclaims, which arose from her continued possession of
the property after the sheriff’s sale. 2
After a hearing, the district court dismissed with prejudice all three of
Ms. Mitchell’s federal claims under Rule 12(b)(6) for failure to state a claim upon
which relief can be granted, declined to exercise supplemental jurisdiction over her
2 The Lundberg Defendants also filed a motion to dismiss, which the district court granted. NuVenture Group answered the complaint and filed a crossclaim against the Bank, which the district court dismissed without prejudice for lack of jurisdiction. The district court’s disposition of the case as to these defendants is not at issue in this appeal; Ms. Mitchell expressly elected not to proceed with her appeal as to the Lundberg Defendants, see Aplt. Opening Br. at 1, and her appellate briefs do not mention NuVenture.
4 state-law claims, and dismissed the Bank’s counterclaims without prejudice under the
Colorado River doctrine. 3 Ms. Mitchell appeals.
II. Discussion
A. Standard of review
We review de novo the district court’s dismissal of a complaint under
Rule 12(b)(6). Albers v. Bd. of Cty. Comm’rs, 771 F.3d 697, 700 (10th Cir. 2014).
“To survive a motion to dismiss, a plaintiff must plead facts sufficient to state a claim
to relief that is plausible on its face.” Id. (internal quotation marks omitted). “[W]e
must accept all the well-pleaded allegations of the complaint as true and must
construe them in the light most favorable to the plaintiff.” Id. (internal quotation
marks omitted).
B. § 1983 claims
In her two § 1983 claims, Ms. Mitchell alleged that the Bank violated her due
process rights by persuading the Mitchell II court that the Mitchell I proceedings
(including the Utah Court of Appeals’ decision in that case) were final and therefore
res judicata as to her counterclaims, which led to the adverse rulings in Mitchell II.
To show the required element of state action, Ms. Mitchell argued that the Bank
3 The Colorado River doctrine applies to “situations involving the contemporaneous exercise of concurrent jurisdictions . . . by state and federal courts.” Colo. River Water Conservation Dist. v. United States, 424 U.S. 800, 817 (1976). The district court applied the Colorado River doctrine here because the Bank was litigating substantially the same issues (unlawful detainer, ejectment) in a parallel case it had filed in Utah state court after the sheriff’s sale, which the state court stayed pending resolution of Ms. Mitchell’s claims in this action. The district court’s Colorado River ruling is not at issue in this appeal. 5 acted jointly with the Mitchell II judge. See Wittner v. Banner Health, 720 F.3d 770,
773 (10th Cir. 2013) (“A § 1983 claim requires a plaintiff to show both the existence
of a federally-protected right and the deprivation of that right by a person acting
under color of state law.”). The district court rejected that position because
Ms. Mitchell had not alleged that any state officials conspired or acted jointly with
the Bank in deciding to rule against her in Mitchell II, or that the Bank had an
understanding or an agreed plan with the state judge. See id. at 777 (explaining that
the joint-action test “ask[s] whether state officials and private parties have acted in
concert in effecting a particular deprivation of constitutional rights” (internal
quotation marks omitted)).
On appeal, Ms. Mitchell provides only a cursory argument regarding the
district court’s ruling on her joint-action theory, which is also referred to as “joint
participation,” see Barnard v. Young, 720 F.2d 1188, 1189 (10th Cir. 1983). First,
she contends that the district court “ignored the concept of joint participation.” Aplt.
Opening Br. at 16. This statement is patently incorrect; as just explained, the district
court concluded that Ms. Mitchell had advanced no allegations supporting joint
participation. Second, Ms. Mitchell provides two quotes from judicial decisions
concerning joint participation. The first is from Lugar v. Edmondson Oil Co.,
457 U.S. 922, 934 (1982):
If the creditor-plaintiff violates the debtor-defendant’s due process rights by seizing his property in accordance with statutory procedures, there is little or no reason to deny to the latter a cause of action under the federal statute, § 1983, designed to provide judicial redress for just such constitutional violations.
6 The second quote is from a vacated district-court case quoting Lugar:
The Supreme Court has “consistently held that a private party’s joint participation with state officials in the seizure of disputed property is sufficient to characterize that party as a ‘state actor’ for purposes of the Fourteenth Amendment.” Jordan v. Fox, Rothschild, O’Brien & Frankel, 787 F. Supp. 471, 475 (E.D. Pa.
1992) (quoting Lugar, 457 U.S. at 941), vacated, 20 F.3d 1250 (3d Cir. 1994).
Reduced to its essence, Ms. Mitchell’s entire challenge to the district court’s
rejection of her joint-participation theory consists of two quotations from Lugar
unaccompanied by any analysis relating those quotations to this case or explaining
why she thinks the district court erred in its analysis. 4 Despite the case citations, we
consider the issue waived based on the total lack of analysis. See Bronson v.
Swensen, 500 F.3d 1099, 1104-05 (10th Cir. 2007) (explaining that “we routinely . . .
decline[] to consider arguments . . . inadequately presented . . . in an appellant’s
opening brief” and declining to review appellate arguments consisting of no more
than “cursory statements, without supporting analysis and case law”); see also United
4 Ms. Mitchell also makes the summary assertion that the district court erred by not discussing other ways a private actor can be deemed a state actor for § 1983 purposes. See Aplt. Opening Br. at 2. But the district court found that she had exclusively relied on the joint-action test and “confine[d] its analysis” to the joint-action test. Aplt. App. at 64 (brackets and internal quotation marks omitted). Our review of her opposition to the Bank’s motion to dismiss confirms the district court’s finding. See Aplee. App., Vol. 3 at 614-15 (summarily discussing only “‘joint participation’”). And here, Ms. Mitchell does not discuss the matter further, address any other theories, or argue plain error. She has therefore waived appellate review of any other theories she may have had in mind. See Richison v. Ernest Grp., Inc., 634 F.3d 1123, 1131 (10th Cir. 2011) (“[T]he failure to argue for plain error and its application on appeal . . . surely marks the end of the road for an argument for reversal not first presented to the district court.”). 7 States v. Chavez, 976 F.3d 1178, ___, No. 17-8096, 2020 WL 5807864, at *19 n.18
(10th Cir. Sept. 30, 2020) (suggesting that waiver applies where appellant fails to
“meaningfully engage” with an issue by providing only “a few cursory sentences . . .
accompanied by a single case citation” that generically recites the relevant standard).
Moreover, the Bank provides a cogent analysis explaining the inapplicability
of Lugar (and, for that matter, Jordan, despite Ms. Mitchell’s complete failure to say
anything relevant about Jordan). See Bank’s Resp. Br. at 19-23. Ms. Mitchell
provides no counterargument in her reply brief; in fact, her reply brief does not
address her § 1983 claims at all. Instead, she claims to have reserved an alleged
“right to oral argument” on all issues, “including replying to each of [the Bank’s]
arguments in its Response Brief.” Aplt. Reply Br. at 3. But there is no unqualified
“right” to oral argument. See Fed. R. App. P. 34(a)(2) (explaining that a three-judge
panel can dispense with oral argument if the panel “unanimously agrees that oral
argument is unnecessary” for any of three enumerated reasons). If Ms. Mitchell
wanted to respond to the Bank’s arguments, she should have done so in her reply.
See Ross v. Univ. of Tulsa, 859 F.3d 1280, 1292 n.10 (10th Cir. 2017) (deeming an
argument “waived because it was presented for the first time at oral argument”).
Nonetheless, we have reviewed the issue and agree with the Bank’s analysis.
By its own terms, Lugar is limited to its factual context—cases involving
prejudgment property deprivations. See Lugar, 457 U.S. at 939 n.21 (“The holding
today . . . is limited to the particular context of prejudgment attachment.”). The
Supreme Court has reaffirmed that Lugar is inapplicable beyond ex parte
8 prejudgment proceedings. See Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 58
(1999) (acknowledging that Lugar made clear that “its language must not be torn
from the context out of which it arose” and therefore declining to extend Lugar
where defendants made “no effort” to seize the plaintiffs’ property “by an ex parte
application to a state official”). Consistent with Lugar, the Jordan court concluded
that “private attorneys, acting on their client’s behalf, who invoke the machinery of
the state to effect an ex parte seizure of property can be found to be state actors under
§ 1983.” 787 F. Supp. at 477. 5 Such is not the case here. Ms. Mitchell’s
due-process allegations concerned a judicial foreclosure suit that she litigated at
length, not a prejudgment deprivation, ex parte or otherwise.
Furthermore, Lugar does not apply where a plaintiff asserts that a private actor
abused a state process in an effort to seize disputed property. See Lugar, 457 U.S.
at 942 (concluding that although joint participation occurs “when the State has
created a system whereby state officials will attach property on the ex parte
application of one party to a private dispute,” it does not occur when a plaintiff
“allege[s] only misuse or abuse of the statute”). In this case, Ms. Mitchell alleged
that the Bank abused the judicial-foreclosure process by making misrepresentations
to the Mitchell II court about the finality of Mitchell I and urging the Mitchell II court
5 Despite vacating Jordan on other grounds, the Third Circuit affirmed the district court’s ruling on this point. See Jordan v. Fox, Rothschild, O’Brien & Frankel, 20 F.3d 1250, 1267 (3d Cir. 1994).
9 to apply Mitchell I as res judicata against her counterclaims. That does not amount to
joint participation under Lugar.
Ms. Mitchell neither addressed the limitations on Lugar’s applicability nor
presented any argument for extending Lugar beyond those limitations. Her wholly
inadequate briefing, coupled with the readily apparent inapplicability of the cases
(Lugar and Jordan) she baldly relies on, leads us to the conclusion that the appeal of
the district court’s dismissal of her § 1983 claims is frivolous. We therefore have no
trouble affirming the district court’s dismissal of her § 1983 claims. 6
C. FDCPA claim
Ms. Mitchell fares even worse with respect to the district court’s dismissal of
her FDCPA claim. Although she lists an issue directed at one of the district court’s
rationales for dismissing part of the claim, she provides no supporting argument.
And what argument she does provide concerns a statute-of-limitations issue the
district court decided in her favor and a ruling the district court expressly avoided
making.
6 We note also that Ms. Mitchell did not provide any argument on the fourth issue listed in her statement of issues, which claims the district court “erred in dismissing the due process challenges which were not brought under Section 1983 (i.e., as a claim for damages), but rather were seeking declaratory judgments that [Ms.] Mitchell’s due process rights had been violated, and were being violated, rendering the judicial foreclosure action null and void.” Aplt. Opening Br. at 2. By failing to provide any argument on this issue, Ms. Mitchell has waived it. See Christian Heritage Acad. v. Okla. Secondary Sch. Activities Ass’n, 483 F.3d 1025, 1031 (10th Cir. 2007) (“Where an appellant lists an issue, but does not support the issue with argument, the issue is waived on appeal.”). 10 In her complaint, Ms. Mitchell alleged that the Bank violated three FDCPA
provisions: (1) 15 U.S.C. § 1692g(a)’s requirement that a debt collector must send a
debt validation notice within five days of its initial communication about the debt;
(2) § 1692e’s prohibition on false representations in debt collection, based on the
Bank’s representations to the court in Mitchell II about the finality of Mitchell I; and
(3) § 1692f(6)’s prohibition on unlawful means of repossessing a debtor’s property.
The district court dismissed the claim based entirely on pleading failures in
Ms. Mitchell’s complaint. After first rejecting the Lundberg Defendants’ argument
that the § 1692g claim was barred by a statute of limitations, the district court
dismissed the § 1692g claim because “Ms. Mitchell entirely fail[ed] to identify
any document that constitutes an ‘initial communication’ under § 1692g(a),” Aplt.
App. at 68. The court dismissed the § 1692(e) claim because Ms. Mitchell made only
a conclusory allegation that the Bank “made knowing misrepresentations to the
[state] Courts as to the status of Mitchell I regarding res judicata and finality in order
to obtain the judicial sale.’” Id. at 70 (brackets in original) (quoting id. at 48, ¶ 213).
And the court dismissed the § 1692(f)(6) claim because Ms. Mitchell had alleged that
the foreclosure sale was a judicial foreclosure sale, but § 1692(f)(6) applies only to
nonjudicial foreclosures. See id. at 71. The district court expressly declined to
determine whether the Bank was a debt collector under the FDCPA. See id. at 66.
In her statement of issues, Ms. Mitchell claims the district court erred in its
ruling that she had advanced only conclusory allegations in support of her claim that
the Bank had made misrepresentations to the Mitchell II court. See Aplt. Opening Br.
11 at 2. But she provides no argument on this point. See generally id. at 17-19. She has
therefore waived review of the district court’s disposition of the § 1692(e) claim. See
Christian Heritage Acad. v. Okla. Secondary Sch. Activities Ass’n, 483 F.3d 1025,
1031 (10th Cir. 2007). Instead, she argues she sufficiently alleged that the Bank was
a debt collector within the meaning of the FDCPA, see Aplt. Opening Br. at 17-18,
and that the § 1692g statute of limitations had not run, see id. at 18-19. As noted, the
district court expressly avoided deciding whether the Bank was a debt collector, and
it ruled in Ms. Mitchell’s favor on the limitations issue. Ms. Mitchell’s arguments
regarding the dismissal of her FDCPA claim are frivolous because they are irrelevant
to the district court’s ruling and inadequate to merit appellate review. We therefore
affirm the dismissal of the FDCPA claim.
D. Procedural arguments
In her statement of issues, Ms. Mitchell asserts that, in dismissing her claims
against the Bank under Rule 12(b)(6), the district court committed several procedural
errors: (1) “employ[ing] an improper and heightened pleading standard,” Aplt.
Opening Br. at 1; (2) disregarding facts alleged in her complaint while adopting the
Bank’s statement of facts and the arguments and exhibits the Bank provided in
support of its motion to dismiss; (3) “mischaracterizing factual allegations as
conclusory statements,” id. at 2; and (4) “applying affirmative defenses to causes of
action,” id. But in her argument, she merely recites at length the relevant pleading
and dismissal standards then summarily contends, without analysis or citation to the
record, that the district court “did not cite to a single fact stated in the Complaint,”
12 “only repeated the Causes of Action,” and “referenced 37 facts and supporting
documents stated in the Motions to Dismiss.” Id. at 16. Ms. Mitchell’s contentions
are insufficient to garner appellate review, see Chavez, 976 F.3d at ___, 2020 WL
5807864, at *19 n.18; Bronson, 500 F.3d at 1099, 1104-05, but they are also based on
apparent misreadings or misinterpretations of the district court’s order.
First, the district court recited the same essential pleading standard that
Ms. Mitchell sets forth in her opening brief, see Aplt. App. at 61, and as our analysis
of the dismissal of Ms. Mitchell’s federal claims makes plain, the district court
applied that standard. Ms. Mitchell develops no contrary argument.
Second, although the district court referred to documents the Bank appended to
its motion to dismiss, which consisted of copies from the state court records and
property records in Mitchell I, Mitchell II, and the related appeals, the court did not
rely on facts from those documents in its legal analysis of the federal claims.
Instead, it recited facts from those documents (as have we) only to provide context
for Ms. Mitchell’s claims in this action. But even if it had relied (or did rely) on the
state court records as a basis for dismissing the federal claims, that was entirely
permissible. See, e.g., Porter v. Ford Motor Co., 917 F.3d 1246, 1248 n.2 (10th Cir.
2019) (“A court may look to documents subject to judicial notice in deciding a
motion to dismiss. And records from a related case may be judicially noticed.”
(citation omitted)).
Third, Ms. Mitchell fails to identify which allegations she claims the district
court mischaracterized as conclusory or which allegations she thinks the district court
13 should have referred to in its dismissal order. Based on our independent review of
the district court’s decision, we conclude that the district court properly characterized
Ms. Mitchell’s allegations on dispositive elements of her federal claims as either
conclusory or wholly nonexistent and did not overlook any material factual
allegations in the complaint.
Fourth, Ms. Mitchell fails to identify any affirmative defenses the district court
applied, and in fact the court relied on none. 7
In sum, Ms. Mitchell’s facially deficient argument regarding the district
court’s alleged procedural errors is frivolous.
E. Reply brief argument
In her reply brief, Ms. Mitchell does not reply to any of the Bank’s arguments.
She instead informs us that since the Bank filed its response brief, the Utah Court of
Appeals has concluded that Mitchell II is not final (because the state district court
had not disposed of Ms. Mitchell’s third-party claims) and therefore remanded the
case to the state district court. 8 She contends that in light of this ruling, and based on
7 In the conclusion of her opening brief, Ms. Mitchell states that she “has sufficiently alleged that Defendants Hall, Cooley and Rampton stepped outside their prosecutorial roles by being actively involved in the investigation and in speaking to the media” and that she “has also alleged harm.” Aplt. Opening Br. at 19-20. Because none of the defendants in this case are named Hall, Cooley, or Rampton, this statement apparently refers to some other case her appellate counsel may have been involved with. 8 The Bank has provided this same information in a letter filed pursuant to Federal Rule of Appellate Procedure 28(j).
14 allegations in her complaint that Mitchell II is not final, we should “rule on the issues
of the Utah Federal District Court’s decision on [her] quit claim [sic], wrongful
foreclosure and due process state law claims.” Aplt. Reply Br. at 4. However, the
only decision the federal district court made about these state-law claims was to
decline to exercise supplemental jurisdiction over them, and Ms. Mitchell provides
no argument that the court erred in doing so. Furthermore, the district court’s
dismissal of Ms. Mitchell’s federal claims did not turn on whether Mitchell II was
final. Ms. Mitchell’s request for a ruling on these state-law claims is therefore
frivolous.
III. Motion for sanctions
The Bank has filed a motion under Federal Rule of Appellate Procedure 38 and
10th Circuit Rule 46.5 seeking monetary sanctions against both Ms. Mitchell and her
current appellate attorney, Mark Shurtleff. Mr. Shurtleff began representing
Ms. Mitchell after her initial appellate counsel withdrew but before briefing began. 9
The Bank asserts that the appeal is frivolous and brought for an improper purpose,
that is, “not to obtain adjudication on the merits but to delay [the Bank’s] state-court
eviction suit” against Ms. Mitchell. Mot. at 2. In support of those assertions, the
Bank points to (1) the “frivolous position” Mr. Shurtleff presented in his “cursory
briefing,” id.; (2) the “endless extension requests” both he and prior counsel sought
9 The Bank states that it does not seek sanctions against Ms. Mitchell’s initial appellate counsel because after withdrawing from this appeal, he received a discharge in a Chapter 7 bankruptcy proceeding. 15 in this appeal, id.; (3) the fact that this action was Ms. Mitchell’s third attempt to
litigate the same fundamental issues, often asserting identical causes of action “in
nearly identical language,” id. at 3; and (4) the fact that in Mitchell I and Mitchell II,
she similarly sought (through initial appellate counsel, who also represented her in
those cases) many extensions of time and engaged in other delay tactics, such as
filing multiple motions for reconsideration, arguing that judgments were not final,
and moving to dismiss her appeal of Mitchell I for lack of jurisdiction. The Bank
asks us to remand this case to the district court to determine the appropriate size of
the monetary award, including reasonable attorney’s fees.
We agree with the Bank, but only as to some of Mr. Shurtleff’s actions in this
appeal. We therefore grant the motion and impose sanctions against him (but not
against Ms. Mitchell) under Rule 38. 10
Rule 38 provides that “[i]f a court of appeals determines that an appeal is
frivolous, it may, after a separately filed motion or notice from the court and
reasonable opportunity to respond, award just damages and single or double costs to
the appellee.” Rule 38’s phrase “just damages” includes “attorney’s fees.” Braley v.
Campbell, 832 F.2d 1504, 1510 (10th Cir. 1987) (en banc).
Before we may impose sanctions under Rule 38, we must afford the relevant
party “notice and opportunity to be heard.” Id. at 1513. As relevant here, where “a
party has already made a motion . . . that sanctions be imposed, and identified the
10 Rule 38 provides a sufficient basis for our sanction award, so we need not consider sanctions under 10th Cir. R. 46.5(C). 16 party or counsel it wants to be sanctioned, the notice requirements are satisfied, so
long as the court gives the person against whom sanctions are requested an
opportunity to file a brief or otherwise be heard before imposing sanctions.”
Id. at 1515. The Bank filed its motion on June 2, 2020, five months ago. Yet despite
more than an adequate opportunity to respond to the motion, neither Ms. Mitchell nor
Mr. Shurtleff has done so. Accordingly, Rule 38’s due-process requirement has been
met.
As for the scope of our sanctions award, we recognize that an appeal may be
frivolous as filed or as argued. Finch v. Hughes Aircraft Co., 926 F.2d 1574,
1578-79 (Fed. Cir. 1991); see Braley, 832 F.2d at 1513-14. An appeal is frivolous as
filed when “the judgment by the tribunal below was so plainly correct and the legal
authority contrary to appellant’s position so clear that there really is no appealable
issue.” Finch, 926 F.2d at 1579. In a frivolous-as-argued appeal, “genuinely
appealable issues may exist,” but “the appellant’s contentions in prosecuting the
appeal are frivolous.” Id.
We consider this appeal to be frivolous as Mr. Shurtleff argued it. A party
may argue an appeal frivolously by “mak[ing] no attempt to address the elements
requisite to obtaining reversal,” advancing “irrelevant arguments,” “failing to explain
how the lower tribunal erred or to present clear or cogent arguments for overturning
the decision below,” and “cit[ing] inapplicable or irrelevant authorities.” Id. In the
appellate briefs he filed, Mr. Shurtleff has done all of these things. As a general
matter, he presented no clear or cogent arguments that the district court erred either
17 with respect to dismissing the claims or in the procedures it followed. More
specifically, his challenge to dismissal of the due process claims was both cursory
and based on inapplicable or irrelevant authorities regarding joint action. And he
made only cursory and irrelevant arguments about the FDCPA claim and did not
attempt to address the elements required to obtain reversal of that claim. As the Bank
puts it, parts of his briefs “read[] as though [their] author simply has not read the
order he is appealing.” Mot. at 9.
We do not consider this appeal frivolous as filed, and therefore we decline to
impose sanctions against Ms. Mitchell. 11 As the Bank notes, the underlying suit was
Ms. Mitchell’s third attempt to contest the Bank’s right to foreclose on her home. In
those attempts, she often asserted identical causes of action, and through prior
counsel she sought many extensions of time to file papers with the courts, including
this court. But this appeal arose from the district court’s dismissal of federal claims
she had not attempted to litigate before. And although Mr. Shurtleff waived review
of some of those claims and otherwise presented only frivolous arguments, we
decline to say the appeal was brought solely as a delay tactic or, at least at the time of
filing, that “there really [was] no appealable issue,” Finch, 926 F.2d at 1579. Nor do
we think the Bank has shown, in either its motion or its oppositions to two of the
requests for extensions of time to file briefs that Mr. Shurtleff filed (which he largely
11 Because Ms. Mitchell filed this appeal through her initial appellate counsel, Mr. Shurtleff could not be responsible for filing a frivolous appeal. 18 based on serious health issues) were an attempt to unnecessarily delay resolution of
this appeal.
Consequently, we conclude that Rule 38 sanctions are warranted solely against
Mr. Shurtleff, because the frivolousness of this appeal stems from his actions alone.
Our “duty . . . is to impose sanctions and compensating awards of expenses,
including attorney’s fees, in a manner designed to solve the [judicial] management
problem. If the fault lies with the attorneys, that is where the impact of the action
should be lodged.” Braley, 832 F.2d at 1511 (internal quotation marks omitted).
Applying this test, we conclude that, under Rule 38, the Bank is entitled reasonable
attorney’s fees and double the costs it incurred in filing its response brief and the
motion for sanctions. 12
We also conclude that, under Rule 38, the Bank is entitled to double the costs
(but not any attorney’s fees) it incurred in filing a supplemental appendix. The
appendix Mr. Shurtleff filed included only the district court’s docket entries,
Ms. Mitchell’s complaint, and the district court’s memorandum decision granting the
motions to dismiss. As we explain, that was wholly inadequate under our local rules.
“An appellant represented by retained counsel must electronically file an
appendix sufficient for considering and deciding the issues on appeal.” 10th Cir.
12 Although Rule 39(a) sets out rules on the taxation of appellate costs, those rules do not apply if “the law provides or the court orders otherwise,” Fed. R. App. P. 39(a). By authorizing this court to award an appellee “single or double costs,” Fed. R. App. P. 38, Rule 38 “provides . . . otherwise.” Our decision today also “provides . . . otherwise.” 19 R. 30.1(B)(1); see also Lincoln v. BNSF Ry. Co., 900 F.3d 1166, 1189 (10th Cir.
2018) (“The duty to file an appendix that complies with the requirements set out by
the Federal Rules of Appellate Procedure and our Local Rules falls squarely on the
appellant.”). The requirements for an appellant’s appendix are the same as those set
out in 10th Cir. R. 10.4 “for the contents of a record on appeal.” 10th Cir.
R. 30.1(B)(1). Mr. Shurtleff failed to include two documents Rule 10.4 requires in
all cases: the answer to the operative complaint and the notice of appeal. See
10th Cir. R. 10.4(C)(2), (C)(7). More importantly, because this “appeal is from an
order disposing of a motion,” namely, the Bank’s motion to dismiss, Mr. Shurtleff
was required to also include in the appendix “the [Bank’s] motion [to dismiss],
relevant portions of affidavits, depositions and other supporting documents
(including any supporting briefs, memoranda, and points of authority), filed in
connection with that motion,” and “any responses and replies filed in connection with
that motion.” 10th Cir. R. 10.4(D)(2). He failed to do so. The Bank is therefore
entitled to recover its costs related to its supplemental appendix, which included all
of the filings Mr. Shurtleff omitted. See Lincoln, 900 F.3d at 1191 (permitting an
appellee “to recover all of its appellate costs, including costs related to the
supplemental appendix” it filed, because the appellant’s appendix failed to comply
with rules governing the appendix).
20 IV. Conclusion
The district court’s judgment and amended judgment are affirmed. 13 We grant
the Bank’s motion for sanctions against Mr. Shurtleff and award the Bank attorney’s
fees and double costs pursuant to Rule 38, subject to the limitations set out above.
We deny the Bank’s motion for sanctions against Ms. Mitchell. We remand to the
district court for the limited purpose of determining the amount of the monetary
award.
Entered for the Court
Jerome A. Holmes Circuit Judge
13 In its amended judgment, the district court merely clarified that dismissal of the Bank’s counterclaim against Ms. Mitchell was without prejudice. 21