FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT April 22, 2021 _________________________________ Christopher M. Wolpert Clerk of Court GALE ROBERTS, individually and d/b/a “Gone Working” (Pro Se),
Plaintiff - Appellant,
v. No. 20-2068 (D.C. No. 1:18-CV-00975-WJ-LF) GENERATION NEXT, LLC; ESTATE OF (D. N.M.) RICHARD COOK; KATHARINE COOK FISHMAN; PAUL MATTHEW CASTER; ANTIQUITY ENCOUNTER; JOHN MELANCON; EXPEDITION RESOURCES, LLC; EXPLORATION OPES, LLC; DONALD PATTERSON; GERALD KEMLER; HOWARD TALKS; WILLIAM FLOTO; JANE AND JOHN DOES,
Defendants - Appellees. _________________________________
ORDER AND JUDGMENT* _________________________________
Before MORITZ, BALDOCK, and EID, Circuit Judges. _________________________________
* 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 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. This appeal involves a dispute about a hunt for buried treasure. Appellant
Gale Roberts, individually and for his company, Gone Working (“GW”), filed the
underlying lawsuit claiming he agreed with the above-named defendants and others
to fund a treasure exploration mission on Black Mesa, a hill area in New Mexico. He
claimed the defendants conspired to find the buried treasure without his knowledge,
relocate the cache offsite, and launder the proceeds, thus depriving him of his share.
The district court dismissed some claims against some defendants pursuant to Fed. R.
Civ. P. 12(b)(6) and dismissed the remaining claims on summary judgment. Roberts
appeals only portions of the dismissal and summary judgment orders.1 Exercising
jurisdiction under 28 U.S.C. § 1291, we affirm.
Factual Background
Richard Cook’s company, Generation Next, LLC (“Gen Next”), owned
property on Black Mesa. Cook’s daughter, Katherine Fishman, was legal counsel for
Gen Next, and Paul Caster, another family member, was its general manager. Cook
died in 2016. Fishman is the personal representative of his estate. When discussing
1 Roberts has abandoned any arguments he might have made regarding aspects of the dismissal and summary judgment orders he did not expressly challenge on appeal. See Conroy v. Vilsack, 707 F.3d 1163, 1170 (10th Cir. 2013). Accordingly, we consider only the issues raised in the opening brief. See Tran v. Trs. of State Colls. in Colo., 355 F.3d 1263, 1266 (10th Cir. 2004) (“Issues not raised in the opening brief are deemed abandoned or waived.” (internal quotation marks omitted)). We deny Roberts’ request for leave to re-file a brief of up to forty-five pages. See Aplt. Opening Br. at 25, 28.
2 Cook, Fishman, Caster, and Cook’s estate as a group, we refer to then collectively as
“the Cook Defendants.”
Cook hired John Melancon, an archeologist, to help lay claim to the gold and
artifacts expected to be found on Black Mesa. Melancon was one of four managing
members of Expedition Resources, LLC. In 2010, Expedition Resources and Gen
Next entered into a one-year exclusive recovery agreement giving Expedition
Resources the right to access the property for exploration. The other managing
members of Expedition Resources were Donald Patterson, Gerald Kemler, and
Howard Talks. Talks was a financier of gold-finding expeditions, and Patterson and
Kemler were both treasure hunters. When discussing Expedition Resources,
Melancon, Patterson, Kemler, and Talks as a group, we refer to them collectively as
“the Expedition Resources Defendants.”2 Expedition Resources ultimately lacked the
necessary funding and the agreement expired without Expedition Resources ever
having entered the property.
According to the First Amended Complaint (“FAC”) Roberts and Expedition
Resources entered into a Joint Venture Agreement in November 2012 under which
Roberts agreed to finance and participate in an expedition to search for and recover
2 The original complaint named Exploration OPES, LLC, another entity related to some or all of the Expedition Resources Defendants, as a defendant, and although the First Amended Complaint listed Exploration OPES in the caption, it did not assert any claims against Exploration OPES, and Roberts does not raise any claims on appeal involving Exploration OPES. Accordingly, we do not discuss its alleged involvement in the events giving rise to Roberts’ claims either in this background section or our analysis of the issues on appeal. 3 gold and artifacts from Black Mesa in exchange for half of the discovered cache.
Patterson negotiated the agreement on behalf of Expedition Resources and he and
Roberts were the two signatories. The agreement provided that Roberts would be
compensated only if gold and artifacts were found, and that any capital he
contributed was “risk capital,” meaning he would be reimbursed out of the proceeds,
and Expedition Resources would have no liability for capital costs if the venture was
unsuccessful. Aplt. App., Vol. II at 185. The FAC alleged that Melancon brokered
the agreement with the approval of Cook, who owned the treasure maps that were to
be used in the expedition, and that Cook “agreed to honor another one-year exclusive
recovery agreement for a 50/50 split.” Id. Vol. I at 25.
In February 2013, several months after Expedition Resources and Roberts
entered into the Joint Venture Agreement, Gen Next entered into an exclusive
one-year land access and recovery agreement with Melancon’s company, Antiquity
Encounter, to search for and recover gold and artifacts from Black Mesa (“the
Antiquity Recovery Agreement”). The FAC alleged that Melancon secured this
agreement with Gen Next “on behalf of and in accordance with the Joint Venture
Agreement . . . Roberts had with Expedition.” Id. at 21.
In March 2013, two gold targets were located using equipment Roberts had
purchased for the expedition. As the targets were located, tension grew between
Roberts, Patterson, and Kemler, the three treasure hunters on the expedition.
According to the FAC, unbeknownst to Roberts, Patterson and Kemler located two
additional gold targets on March 6 with the help of William Floto, another treasure
4 hunter. Roberts alleged that Patterson, Kemler, and Floto dug up the gold in one of
those targets and moved it offsite, then Kemler hid the March 6 test results and he
and the others manufactured false results to deceive Roberts about the two targets
they had discovered.
Roberts began his excavation on March 16, 2013. “[S]everal days into the
excavation,” he discovered that Kemler had tried to hide the March 6 test results. Id.
at 30. Later that month, Patterson and Kemler began transporting the gold and
artifacts to Florida, where Floto lived. Roberts informed the Cook Defendants by
e-mail about the false test results Patterson, Kemler, and Floto had given him. When
the Cook Defendants did not respond, Roberts concluded they were part of the
conspiracy to avoid giving Roberts a share of the treasure Patterson, Kemler, and
Floto had taken from the property.
In September 2013, Cook and Roberts entered into a verbal agreement
allowing Roberts to finish the excavation of the gold in the Black Mesa vaults. But
the relationship between Roberts and other members of the team continued to
deteriorate, and Caster and Fishman refused to allow him on the Black Mesa
property. The Cook Defendants ultimately obtained a state court restraining order
limiting Roberts’ communication with them based on their claims that he had been
acting irrationally and ambushed the then 87-year old Cook at his home in an attempt
to gain entry to Black Mesa.
In February 2014, the Cook Defendants sent Roberts an email indicating that
their relationship with him had ended, that no treasure had been found on Black
5 Mesa, and that they had “no intention of any further exploration on Black Mesa.” Id.
at 22. Contrary to that representation, however, Roberts alleged that soon after
sending the email, Gen Next, Fishman, and Caster began removing gold and artifacts
from one of the vaults.
Also in February 2014, Melancon and Patterson negotiated a “secret” verbal
agreement with Cook and Caster to use satellite technology obtained from a
non-party to further evaluate Black Mesa. Id. at 21. Fishman “cancelled” the
agreement, however, because the Antiquity Recovery Agreement had not yet expired.
Id. at 39. Angry that Fishman had cancelled the agreement, Patterson told Roberts he
was no longer wanted on the expedition and confirmed that Cook, Fishman, Caster,
Melancon, Patterson, Kemler, and Talks had all “joined in a global conspiracy to get
rid of . . . Roberts” and deprive him of his share of the treasure. Id. Patterson also
“unknowingly confessed” to digging up and removing gold from Black Mesa in
March 2013. Id. at 40.
Procedural Background
In February 2018, Roberts filed a lawsuit in the District Court for the District
of Wyoming. The court concluded it lacked personal jurisdiction over the defendants
and subject-matter jurisdiction over the claims, and it dismissed the complaint.
In October 2018, Roberts filed this nearly identical lawsuit in the District
Court for the District of New Mexico, asserting claims for breach of contract, breach
of the implied covenant (quasi-contract), conspiracy, conversion, tort (fraudulent
inducement, intentional misrepresentation, and tortious interference with contract),
6 and equitable relief (promissory estoppel and quantum meruit/unjust enrichment)
against the defendants individually and in various groupings.3 The contract and
quasi-contract claims were based on both the Joint Venture Agreement between
Roberts and Expedition Resources, and the Antiquity Recovery Agreement between
Gen Next and Antiquity Encounter. Those claims were asserted against all
defendants, regardless of whether they were parties to the contracts, and alleged that
Roberts was entitled to recover under the Antiquity Recovery Agreement as a
third-party beneficiary.
The defendants moved to dismiss all of the claims against them under Fed. R.
12(b)(6) as either time-barred or for failure to state a claim. As pertinent here, the
district court:
dismissed the conspiracy claim against all defendants both as time-barred and because civil conspiracy is not actionable as a separate claim;
dismissed all claims based in tort against all defendants as time-barred;
dismissed the contract and quasi-contract claims based on the Antiquity Recovery Agreement against all defendants because Roberts was neither a party nor a third-party beneficiary to that agreement;
dismissed the contract and quasi-contract claims against the Cook Defendants based on the Joint Venture Agreement because they were not parties to that agreement;4
3 The district court had diversity jurisdiction under 28 U.S.C. § 1332(a)(1) (“[D]istrict courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is between . . . citizens of different States.”). 4 The FAC also asserted claims against the Cook Defendants for breach of contract based on the September 2013 verbal agreement between Cook and Roberts, and breach of an implied-in-fact contract based on Roberts’ agreement to sign a no-contact order in exchange for Fishman’s and Caster’s promises to facilitate a face- 7 dismissed the contract and quasi-contract claims based on the Joint Venture Agreement against Melancon, Talks, Kemler, Floto, and Antiquity Encounter because they were not involved in the contract negotiations and were not parties to the agreement, and Melancon’s, Talks’, and Kemler’s roles as managing members in Expedition Resources did not subject them to liability for its contractual obligations; and
dismissed the equitable claims against all defendants other than Patterson and Expedition Resources both as time-barred and because the dismissed defendants were not parties to contracts with Roberts and the FAC did not specify what promises and expectations those defendants breached.
The only claims that survived the motions to dismiss were the breach of
contract, breach of the implied covenant, promissory estoppel, and quantum
meruit/unjust enrichment claims against Expedition Resources and Patterson, who
negotiated and signed the Joint Venture Agreement as a managing member of
Expedition Resources. The district court later granted defendants’ motions for
summary judgment on those claims, concluding (1) Roberts was not entitled to relief
under the Joint Venture Agreement because it expressly provided he would be
reimbursed and compensated only if the expedition was successful, and he presented
no evidence supporting his assertion that treasure was discovered on Black Mesa;
(2) the implied covenant could not be used to override the express terms of the Joint
Venture Agreement; and (3) equitable relief was not available for conduct governed
by contract.
to-face meeting between Roberts and Cook. Roberts does not challenge the adverse rulings involving these claims, so we do not address them.
8 Discussion
1. Standard of Review
As an initial matter, we recognize that Roberts’ pro se status entitles him to a
liberal reading of his pleadings. Ledbetter v. City of Topeka, 318 F.3d 1183, 1187
(10th Cir. 2003). We thus make some allowances for deficiencies, such as unfamiliarity
with pleading requirements, failure to cite appropriate legal authority, and confusion of
legal theories. See Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840
(10th Cir. 2005). But we “cannot take on the responsibility of serving as [his] attorney in
constructing arguments and searching the record.” Id.; see also Whitney v. New
Mexico, 113 F.3d 1170, 1175 (10th Cir. 1997) (explaining that we “will not supply
additional factual allegations to round out [a pro se litigant’s] complaint or construct
a legal theory on [his] behalf”).
We review de novo both the dismissal of a complaint under Rule 12(b)(6) for
failure to state a claim and the grant of summary judgment, applying the same
standards that applied in the district court. Brooks v. Mentor Worldwide LLC,
985 F.3d 1272, 1278 (10th Cir. 2021) (Rule 12(b)(6) dismissal); Rocky Mountain
Prestress, LLC v. Liberty Mut. Fire Ins. Co., 960 F.3d 1255, 1259 (10th Cir. 2020)
(summary judgment).
“To survive a motion to dismiss, a complaint must contain sufficient factual
matter, accepted as true, to state a claim to relief that is plausible on its face.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted). In
conducting our review, we disregard conclusory allegations, but accept all
9 well-pleaded facts as true, view them in the light most favorable to Plaintiffs, and
draw all reasonable inferences in their favor. Brooks, 985 F.3d at 1281. Our duty is
to “determine whether the complaint sufficiently alleges facts supporting all the
elements necessary to establish an entitlement to relief under the legal theory
proposed.” Forest Guardians v. Forsgren, 478 F.3d 1149, 1160 (10th Cir. 2007).
Under the plausibility standard, dismissal for failure to state a claim is “proper only
where it is obvious that the plaintiff cannot prevail on the facts he has alleged.” Kay
v. Bemis, 500 F.3d 1214, 1217 (10th Cir. 2007) (internal quotation marks omitted).
At the summary judgment stage, we “view facts in the light most favorable to
the non-moving party and draw all reasonable inferences in [their] favor.” Dewitt v.
Sw. Bell Tel. Co., 845 F.3d 1299, 1306 (10th Cir. 2017) (ellipsis and internal
quotation marks omitted). “Summary judgment is only appropriate when there are no
genuine issues of material fact and the moving party is entitled to judgment as a
matter of law.” Foster v. Mountain Coal Co., 830 F.3d 1178, 1186 (10th Cir. 2016)
(internal quotation marks omitted).
2. Rejection of Third-Party Beneficiary Theory
Roberts first contends the district court erred by concluding he was not a
third-party beneficiary of the Antiquity Recovery Agreement.5 We disagree.
5 Roberts framed this argument as a due process argument, but he did not provide any legal support for the assertion that the district court’s adverse ruling on the third-party beneficiary issue violated his constitutional right to due process. Accordingly, we disregard that aspect of the argument.
10 Under New Mexico law, “one who is not a party to a contract cannot maintain
suit upon it.” Fleet Mortg. Corp. v. Schuster, 811 P.2d 81, 82 (N.M. 1991). But “[a]
third party may be a beneficiary of [a] contract, and as a beneficiary may have an
enforceable right against a party to a contract.” Id. “Whether a party is a third-party
beneficiary depends on if the parties to the contract intended to benefit the third
party.” Id. at 82-83. “Such intent must appear either from the contract itself or from
some evidence that the person claiming to be a third party beneficiary is an intended
beneficiary.” Valdez v. Cillessen & Son, Inc., 734 P.2d 1258, 1264 (N.M. 1987).
The signatories to the Antiquity Recovery Agreement were Cook and Fishman
as managers of Gen Next, and Melancon for Antiquity Encounter. The agreement
gave Melancon and Antiquity Encounter “the exclusive right to access and perform a
non-destructive geophysical survey(s) on Black Mesa” from February 2013 through
February 2014, and provided for a fifty-fifty split between Gen Next and Antiquity
Encounter of any “valuables and artifacts.”6 Aplt. App., Vol. I at 70-71. The
agreement identified Roberts as one of Melancon’s team members, and required Gen
Next to protect the confidentiality of Roberts’ “proprietary geophysical technology.”
Id. at 72. But the agreement did not address how Melancon would compensate his
6 In evaluating whether Roberts’ factual allegations meet the plausibility standard, we consider both his complaint and the documents attached as exhibits to the complaint, including the Antiquity Recovery Agreement. See Oxendine v. Kaplan, 241 F.3d 1272, 1275 (10th Cir. 2001); see also Fed. R. Civ. P. 10(c) (“A copy of a written instrument that is an exhibit to a pleading is a part of the pleading for all purposes.”). 11 team, much less suggest Roberts or any other team member would share in the
fifty-fifty split between Gen Next and Antiquity Resources.
We agree with the district court’s conclusion that the contract does not indicate
that the parties intended to benefit Roberts.7 Contrary to his assertion, neither the
fact that Fishman and Caster knew about the Joint Venture Agreement when they
signed the Antiquity Resources Agreement, nor Melancon’s alleged promise “that
[Roberts’] interests, as the financier [of the expedition under the Joint Venture
Agreement] would be protected,” Aplt. Opening Br. at 8, establishes that Roberts was
a third-party beneficiary of the Antiquity Resources Agreement. Cook’s and
Fishman’s awareness of the Joint Venture Agreement and of Roberts’ role as
financier of the expedition is simply not a basis for concluding they intended to make
him a beneficiary of the Antiquity Recovery Agreement. And while the two
agreements were interrelated—the Joint Venture Agreement governed the conduct of
the Black Mesa expedition and the Antiquity Recovery Agreement gave the team
access to the property and governed what they could do there—the fact that both
agreements were necessary for the expedition to happen does not make the parties to
one agreement third-party beneficiaries of the other. Moreover, any promise
7 The district court held that “[a]t most” the provision identifying Roberts as a member of Melancon’s team made him “an incidental beneficiary”—someone who has no contractual rights under the contract but who “‘will derive a benefit from its performance.’” Aplt. App., Vol. I at 339 (quoting Fleet Mortg, 811 P.2d at 83 (holding incidental beneficiary “had no right to recover” under contract)). The issue before us is whether Roberts was a third-party beneficiary, not whether he was an incidental beneficiary, so we need not address that issue. 12 Melancon made to protect Roberts’ interests could not make Roberts a third-party
beneficiary of the Antiquity Recovery Agreement without the agreement of the other
parties to that contract. Such a promise might have affected how the proceeds of any
discovered cache would have been divided between Roberts and Expedition
Resources under the Joint Venture Agreement, but it would not have affected the
division of proceeds between Gen Next and Antiquity Resources under the Antiquity
Recovery Agreement.
3. Dismissal of Contract and Quasi-Contract Claims Against Melancon, Talks, Kemler, and Floto
Roberts next contends the district court erred by dismissing the contract and
quasi-contract claims based on the Joint Venture Agreement against Melancon,
Talks, Kemler, and Floto. Again, we disagree.
Expedition Resources is a limited liability company. Under New Mexico law:
the debts, obligations and liabilities of a limited liability company, whether arising in contract, tort or otherwise, shall be solely the debts, obligations and liabilities of the . . . company. No member or manager of a limited liability company . . . shall be obligated personally for any debt, obligation or liability of the . . . company solely by reason of being a member or manager of the . . . company . . . . A person may be liable for any act or omission performed in his capacity as a manager of a limited liability company if there is a basis for liability. Nothing in this section shall be construed to immunize any person from liability for the consequences of his own acts or omissions for which he otherwise may be liable.
N.M. Stat. Ann. § 53-19-13. Under this statute, a member of a limited liability
company may be personally liable for his own tortious acts, whether or not he was
acting for the company, but not for its contractual obligations.
13 The allegations in the FAC establish that the Joint Venture Agreement was
between Expedition Resources and Roberts. Melancon, Talks, Kemler, and Floto
were not parties to and were therefore not liable under the contract, and Melancon,
Talks, and Kemler cannot be held personally liable for Expedition Resources’
obligations under the contract. See id. Accordingly, the district court correctly
dismissed the contract and quasi-contract claims against these defendants. See id.
§ 53-19-14 (providing that subject to an exception not applicable here, “[a] member
of a limited liability company is not a proper party to a proceeding against the limited
liability company solely by reason of being a member of the limited liability
company”); see also Kreischer v. Armijo, 884 P.2d 827, 829 (N.M. Ct. App. 1994)
(explaining that agents of a corporate entity cannot be held personally liable for its
contractual obligations and affirming dismissal of claim against corporate agent
based on the company’s contract).
4. Dismissal of Conspiracy, Conversion, and Tort Claims as Time-Barred
We also reject Roberts’ contention that the district court erred by dismissing
the conspiracy, conversion, and tort claims as time-barred.
The basis for these claims was as follows:
Conspiracy: The FAC alleged the conspiracy claim against all defendants individually and in various groupings, and although the specific conduct underpinning the claim varied from defendant to defendant, it was based on the same basic theory as to all of them—that they schemed to prevent Roberts from discovering hidden reserves of gold in order to deprive him of his share of the treasure. Based on the factual allegations in the FAC, the court determined that the claim was based on events that occurred before September 2013.
14 Conversion: The conversion claim was asserted against all defendants and was based on the alleged discovery of treasure on Black Mesa, its removal from the property, and the laundering and division of the proceeds among the defendants, all without Roberts’ knowledge.
Fraudulent Inducement: The claim against the Expedition Resources Defendants alleged that they made false representations to Roberts in November 2012 when they solicited his participation in an expedition on Black Mesa. The claim against the Cook Defendants alleged that they manipulated Roberts into signing the temporary restraining order in October 2013 by telling him they would facilitate a face-to-face meeting between him and Cook. Floto and Antiquity Resources were not named in the fraudulent inducement claim.
Intentional Misrepresentation: The intentional misrepresentation claim against Patterson and Kemler alleged that they gave Roberts misleading test results and other data to hide their discovery of additional gold targets in March 2013. The claim against the Cook Defendants was based on the February 2014 email telling Roberts that the expedition had found no treasure and that they did not intend to conduct further exploration on Black Mesa. The other defendants were not named in this claim.
Tortious Interference with Contract: This claim was asserted only against Floto, Fishman, and Caster. It alleged that Floto located and removed treasure from Black Mesa in March 2013 “without giving any of the existing agreements and contracts any consideration,” Aplt. App., Vol. I at 51, and that in September 2013, Fishman and Caster interfered with the verbal agreement between Roberts and Cook.
The district court concluded, and Roberts does not dispute, that the applicable
limitations periods were four years for the conversion claim and any fraud-based
claim, three years for the other tort claims, and three or four years for the conspiracy
claim, depending on whether it was grounded in tort or fraud. See N.M. Stat. Ann.
§ 37-1-4 (establishing four-year limitations period for conversion and fraud claims);
id. § 37-1-8 (establishing three-year limitations period for personal injury actions);
Peralta v. Peralta, 131 P.3d 81, 84 (N.M. Ct. App. 2005) (applying personal injury
statute of limitations period to tortious interference with expected inheritance claim). 15 Based on the factual allegations in the FAC, the court concluded that all of these
claims accrued by February 2014, and that because Roberts did not file his complaint
until October 2018, the claims were all time-barred under either a three- or four-year
limitations period.
In so concluding, the district court rejected Roberts’ arguments that the
limitations periods did not apply under New Mexico’s savings statute and that the
claims were timely under the discovery rule. Roberts reasserts those arguments on
appeal and we reject them too.
New Mexico’s savings statute provides:
If, after the commencement of an action, the plaintiff fail[s] therein for any cause, except negligence in its prosecution, and a new suit be commenced within six months thereafter, the second suit shall, for the purposes herein contemplated, be deemed a continuation of the first.
N.M. Stat. Ann. § 37-1-14. Relying on this statute, Roberts maintains that his claims
were timely because he filed the complaint in this case within six months after the
dismissal of the Wyoming suit. The district court disagreed, concluding that the
savings statute was inapplicable both because most of Roberts’ claims were already
time-barred when he filed the Wyoming suit, and because his initial filing in the
wrong forum constituted “negligence in prosecution.” See Barbeau v. Hoppenrath,
33 P.3d 675, 679 (N.M. Ct. App. 2001) (holding plaintiff’s unexcused failure to file
suit in the correct jurisdiction was negligence that precluded application of the
savings statute). Roberts take issue with the latter conclusion, maintaining that it was
reasonable for him to file suit in Wyoming because he is a Wyoming resident and
16 was in Wyoming when he negotiated the Joint Venture Agreement. But we agree
with the district court’s determination that, even as a pro se litigant, Roberts could
not reasonably have believed Wyoming had personal jurisdiction over the defendants
and subject matter jurisdiction over the lawsuit given that none of them lived in or
had the requisite contacts with Wyoming and the relevant events all happened in New
Mexico. See id. (savings statute inapplicable where the complaint “on its face
defeated subject matter jurisdiction,” there was no basis for personal jurisdiction over
the defendants, and the flawed choice of forum was not “an innocent mistake or an
erroneous guess at an elusive jurisdictional fact known only to the defendants or any
other circumstance that might serve to excuse what otherwise appears clearly to be
negligence”).
As for the discovery rule, Roberts maintains he did not discover all of the facts
relevant to the conspiracy and conversion claims until as late as 2018 and that the
district court thus erred by dismissing the claims as time-barred. The district court
agreed that under the discovery rule, the claims accrued when Roberts knew or
should have known the essential facts giving rise to the claims. See State ex rel. Pub.
Emps. Ret. Ass’n v. Longacre, 59 P.3d 500, 507 (N.M. 2002) (holding that the accrual
date for a New Mexico statute of limitations is “usually . . . the date of discovery”).
But the court rejected his delayed discovery argument, pointing to the allegations in
the FAC that Roberts’ excavation began in mid-March 2013, and that the “team was
several days into the excavation when [he] discovered that . . . Kemler had tried to
hide the [March 6] test results.” Aplt. App., Vol. I at 30; see also id. (alleging that
17 after discovering the hidden test results, Roberts found “significant ground
disturbance” at what appeared to be the site of the new gold targets).
Roberts does not dispute that he discovered the hidden test results in March
2013, and he acknowledges that “the majority of the conspiracies began” in that
timeframe. Aplt. Opening Br. at 11. Instead, relying on criminal statutes and
caselaw inapplicable here, he contends the conspiracy claim alleged an ongoing
conspiracy that none of the defendants withdrew from, that the conversion “is still
happening to this day,” id. at 13, and that the statute of limitations did not start
running until sometime in 2018, when Roberts learned more details about the
defendants’ actions.8 Construing these argument liberally, we assume Roberts is
invoking the continuing wrong doctrine, which can be used to toll a statute of
limitations. See Tiberi v. Cigna Corp., 89 F.3d 1423, 1431 (10th Cir. 1996)
(construing New Mexico law and applying the doctrine to toll the statute of
limitations for fraud and negligent misrepresentation). Under the continuing wrong
doctrine, “where a tort involves a continuing or repeated injury, the cause of action
accrues at, and limitations begin to run from, the date of the last injury.” Id. at 1430.
But “the doctrine cannot be employed where the plaintiff’s injury is definite and
discoverable, and nothing prevented the plaintiff from coming forward to seek
redress.” Id. at 1431 (internal quotation marks omitted).
8 The district court did not expressly address the ongoing conspiracy and conversion argument in its dismissal orders, but implicitly rejected it in concluding that the claims were time-barred. 18 Roberts does not dispute that he knew in March 2013 that Patterson and
Kemler had located the two additional gold targets and tried to hide the test results,
and the allegations in the FAC establish that by February 2014, he knew treasure had
been removed from the property and sold, that the proceeds had been laundered, that
he was barred from the Black Mesa, and that none of the defendants intended to
include him in any further exploration efforts. Roberts’ injury was thus “definite and
discoverable” by February 2014. See id. And while he may have learned more
details about defendants’ alleged wrongdoing between 2014 and 2018, that
information did not give rise to a “continuing or repeated injury,” as required for
tolling under the continuing wrong doctrine. See id. at 1430. Because Roberts knew
the essential facts underpinning these claims no later than February 2014 and did not
file this lawsuit until October 2018, the district court correctly dismissed the claims
as time-barred.
Finally, we acknowledge Roberts’ one-sentence argument that the district
court erred by denying his request under Fed. R. Civ. P. 60(b) to reopen discovery
and to allow him to “submit newly discovered evidence . . . that was paramount in
helping prove” his conspiracy and conversion claims. Aplt. Opening Br. at 16. We
decline to address this unsupported and conclusory claim. See Fed. R. App. P.
28(a)(8)(A) (requiring citations to authorities supporting each argument); Bronson v.
Swensen, 500 F.3d 1099, 1104 (10th Cir. 2007) (declining to consider arguments
inadequately presented in appellant’s opening brief). In any event, new facts about
19 the substance of the claims would not have affected the district court’s conclusion
that the claims were time-barred.
5. Dismissal of Conspiracy Claim as Not Separately Actionable
The district court also dismissed the conspiracy claim on the ground that under
New Mexico law, civil conspiracy is not actionable as a separate claim. See Ettenson
v. Burke, 17 P.3d 440, 445, 448 (N.M. 2000) (explaining that civil conspiracy is a
“derivative claim” that “requires an overt tortious act independent of the conspiracy,”
and that “[w]ithout an actionable civil case against one of the conspirators, . . . an
agreement, no matter how conspiratorial in nature, is not a separate, actionable
offense” (internal quotation marks omitted)). Roberts challenges that ruling, but
because we have concluded the court properly dismissed the claim as time-barred, we
need not address the parties’ arguments about this alternative basis for dismissal. See
Trevizo v. Adams, 455 F.3d 1155, 1160 n.3 (10th Cir. 2006).
6. Grant of Summary Judgment Without a Hearing
Roberts does not challenge the substance of the district court’s summary
judgment order but argues that the court erred by denying his request for a hearing on
the motion. An evidentiary hearing is not required when the plaintiff’s claims can be
decided as a matter of law and the parties’ pleadings establish that the defendants are
entitled to summary judgment. See Kennedy v. Meacham, 540 F.2d 1057, 1061 n.3
(10th Cir. 1976) (explaining that a hearing “is [not] required in every instance”).
Roberts maintains that a hearing would have been “beneficial,” Aplt. Opening Br. at
20 16, but he has not established that a hearing was necessary and that the district court
abused its discretion by not holding one.
7. Denial of Motion for Preliminary Injunction
After the district court entered its orders dismissing most of Roberts’ claims
against most defendants, he filed a motion seeking an injunction to prevent the
removal of any gold and artifacts from Black Mesa until the case was fully litigated
in both the district court and on appeal. The district court denied the motion,
concluding Roberts had not shown a likelihood of success on the merits. See State v.
EPA, 989 F.3d 874, 883 (10th Cir. 2021) (setting forth requirements for obtaining
preliminary injunction that changes the status quo).
Roberts takes issue with that ruling, but his appeal of that order is moot given
that the district court has entered a final judgment on the merits and the effective
time period of the requested injunction has passed. See United States ex rel. Bergen
v. Lawrence, 848 F.2d 1502, 1512 (10th Cir. 1988) (explaining that a preliminary
injunction is by its nature a temporary measure intended to furnish provisional
protection while awaiting a final judgment on the merits and that entry of final
judgment mooted appeal of preliminary injunction); Baker v. Bray, 701 F.2d 119, 122
(10th Cir. 1983) (dismissing appeal of preliminary injunction ruling as moot where
district court later dismissed the underlying claim).
8. Additional Issues
Roberts asks this court to “prevent . . . Patterson from making threats to
[Roberts’] witnesses” and “posting derogatory statements about . . . Roberts” on
21 social media. Aplt. Opening Br. at 26. This court does not have jurisdiction to order
such relief. Accordingly, the request is denied.
The Cook Defendants argue that this appeal is frivolous and seek an award of
damages and costs under Fed. R. App. P. 38, and attorney’s fees under 28 U.S.C.
§ 1927. Initially, we note that there is a split “among the circuits on the question
whether § 1927 applies to pro se litigants.” See Alexander v. United States, 121 F.3d
312, 316 (7th Cir. 1997). Although we have not squarely decided that question, we
have commented that § 1927 “is a natural outgrowth of the inherent authority of a
court to assess costs and attorney’s fees against a party who has acted in bad faith,
vexatiously, wantonly, or for oppressive reasons” and that “awards under § 1927 are
made only against attorneys.” Hutchinson v. Pfeil, 208 F.3d 1180, 1186 n.9
(10th Cir. 2000) (ellipsis and internal quotation marks omitted). In any event, the
decision whether to impose sanctions for a frivolous appeal is discretionary, see Roth
v. Green, 466 F.3d 1179, 1188 (10th Cir. 2006), and we decline to do so here.
Conclusion
The district court’s dismissal and summary judgment orders are affirmed.
Entered for the Court
Bobby R. Baldock Circuit Judge