Serna v. BBVA USA

• Court: Court of Appeals for the Tenth Circuit
• Decided: October 2, 2024
• Docket: 23-2090
• Status: Unpublished

Opinion

Appellate Case: 23-2090 Document: 64-1 Date Filed: 10/02/2024 Page: 1 FILED United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS October 2, 2024 FOR THE TENTH CIRCUIT _________________________________ Christopher M. Wolpert Clerk of Court MIKE SERNA,

Plaintiff - Appellant,

v. No. 23-2090 (D.C. No. 1:22-CV-00852-DHU-JMR) BBVA USA, a/k/a BBVA Compass (D. N.M.) Bank, a/k/a PNC Bank,

Defendant - Appellee. _________________________________

ORDER AND JUDGMENT* _________________________________

Before PHILLIPS, BALDOCK, and FEDERICO, Circuit Judges. _________________________________

Plaintiff Mike Serna, proceeding pro se, filed a federal lawsuit against

BBVA USA (“BBVA”). The district court dismissed his claims for lack of

jurisdiction and imposed filing restrictions. We likewise dismiss his appeal

for lack of jurisdiction.

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 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. Appellate Case: 23-2090 Document: 64-1 Date Filed: 10/02/2024 Page: 2

I.

More than a decade ago, Mr. Serna’s wife, Emma Serna, lost a

construction-contract dispute against Margette and David Webster in New

Mexico state district court. Since then, the Sernas have challenged the

Websters’ collections efforts, in both federal and state court, without

success.

In 2015, a New Mexico state district court entered a judgment

adopting an arbitration award against Ms. Serna and in favor of the

Websters. BBVA received a writ of garnishment arising from that

judgment.1 In January 2021, Emma Serna sued BBVA in federal district

court, alleging the writ of garnishment was void and that BBVA was

improperly withdrawing funds from her accounts. The district court

dismissed her complaint without prejudice for lack of subject matter

jurisdiction, and she did not appeal. Just a few months later, however, she

filed another complaint against BBVA alleging the same facts and

requesting the same relief. The district court again dismissed her case for

lack of subject matter jurisdiction, and we affirmed her appeal of the

1 BBVA USA was acquired by PNC Financial Services Group in June

2021. To avoid confusion, we will continue to refer to the defendant as BBVA. 2 Appellate Case: 23-2090 Document: 64-1 Date Filed: 10/02/2024 Page: 3

dismissal. The district court also entered filing restrictions against

Ms. Serna, which she did not appeal.

Despite the filing restrictions, in November 2022, the Sernas filed

another federal lawsuit against BBVA. The district court struck their

complaint, however, because Ms. Serna had not complied with the filing

restrictions. After Mr. Serna filed an amended complaint, the district court

ordered Mr. Serna to show cause why his claims should not be dismissed

because, among other things, he impermissibly sought to assert claims on

behalf of Ms. Serna. Mr. Serna then filed a second amended complaint in

which he dropped his wife’s name from the caption.

The district court dismissed the second amended complaint for lack of

subject matter jurisdiction and entered judgment on April 18, 2023. One

week later, Mr. Serna filed a notice of appeal, which this court opened as

Case No. 23-2066. Mr. Serna later voluntarily dismissed that appeal.

In its dismissal order, the district court also described Mr. Serna’s

abusive filing history, proposed certain filing restrictions based on that

history, and gave Mr. Serna an opportunity to show cause why the court

should not impose the restrictions. Mr. Serna never responded. Accordingly,

on May 31, 2023, the district court entered an order imposing filing

restrictions.

3 Appellate Case: 23-2090 Document: 64-1 Date Filed: 10/02/2024 Page: 4

II.

Under Federal Rule of Appellate Procedure 3(c)(1)(B), a notice of

appeal must “designate the judgment—or the appealable order—from which

the appeal is taken.” The failure to do so deprives us of jurisdiction. See

Smith v. Barry, 502 U.S. 244, 247-48 (1992). Here, Mr. Serna’s notice of

appeal states: “The Plaintiff, Mike Serna, hereby gives his ‘Notice of Appeal’

in the 10th Circuit Federal Court of Appeals to file Appeal on case no. 1:22-

cv-00852-DHU/JMR.” R. at 107. It does not specify “the judgment—or the

appealable order—from which the appeal is taken.” Fed. R. App. P.

3(c)(1)(B).

We are mindful that we must liberally construe Mr. Serna’s pro se

filings. See Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840

(10th Cir. 2005). “Even if a notice fails to properly designate the order from

which the appeal is taken, this Court has jurisdiction if the appellant’s

intention was clear.” Fleming v. Evans, 481 F.3d 1249, 1253-54 (10th Cir.

2007). For example, we have held that an appellant’s docketing statement,

filed within the time limit for filing a notice of appeal, gave adequate notice

of the orders being appealed. Denver & Rio Grande W. R.R. Co. v. Union

Pac. R.R. Co., 119 F.3d 847, 849 (10th Cir. 1997). In this appeal, however,

Mr. Serna filed no other pleading in connection with the notice of appeal

that offers any insight as to his intentions. Indeed, even his opening brief

4 Appellate Case: 23-2090 Document: 64-1 Date Filed: 10/02/2024 Page: 5

makes no mention of the district court’s order of dismissal or its order

imposing filing restrictions.

In short, we hold that Mr. Serna has not complied with the

requirements of Rule 3(c)(1)(B), and we therefore lack jurisdiction to review

any of the district court’s orders.

III.

We dismiss this appeal for lack of jurisdiction, and we deny as moot

Mr. Serna’s motion for leave to file a reply brief out of time.

Entered for the Court

Richard E.N. Federico Circuit Judge