Appellate Case: 24-2086 Document: 26-1 Date Filed: 12/26/2024 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT December 26, 2024 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 24-2086 (D.C. No. 2:22-CV-00315-MIS-JHR) HOWARD D. TRAVIS, (D. N.M.)
Defendant - Appellant. _________________________________
ORDER AND JUDGMENT * _________________________________
Before HARTZ, BALDOCK, and MORITZ, Circuit Judges. _________________________________
Pro se Plaintiff Howard D. Travis appeals the district court’s judgment against
him for his unpaid federal-income-tax liabilities. He contends on appeal that the
government’s claim against him is barred by res judicata. We exercise jurisdiction
under 28 U.S.C. § 1291. Because the district court did not abuse its discretion in
refusing to consider Mr. Travis’s untimely res judicata defense, we affirm.
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 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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: 24-2086 Document: 26-1 Date Filed: 12/26/2024 Page: 2
I. BACKGROUND
Mr. Travis failed to file income-tax returns for tax years 2007 through 2012.
On January 12, 2022, the government filed suit in the United States District Court for
the Southern District of Ohio (the Ohio case) to enforce tax liens against real
property owned by Mr. Travis and his wife. On June 30, 2023, the district court ruled
that the Ohio property was encumbered by federal tax liens and appointed a receiver
to sell it. After the Ohio property was sold, the district court disbursed the net
proceeds to the government and closed the case. The sale proceeds were sufficient to
satisfy Mr. Travis’s tax liabilities for tax years 2007 through 2009. Mr. Travis
remained liable for his unpaid taxes for tax years 2010 through 2012.
On April 26, 2022, while the Ohio case was still pending, the government filed
a complaint in the United States District Court for the District of New Mexico
seeking judgment against Mr. Travis for his unpaid federal-income-tax liabilities. Mr.
Travis filed his answer on June 29, 2022. On January 19, 2024, after the government
received the proceeds from the sale of Mr. Travis’s Ohio property, it moved for
summary judgment on Mr. Travis’s remaining liabilities for tax years 2010 through
2012. 1 On February 27, 2024, the district court granted the government’s motion
subject to the government’s providing a supplemental memorandum and evidence
showing the precise amount owed. On March 11, 2024, Mr. Travis sent the court a
1 The government and the district court characterized this motion as a motion for partial summary judgment, presumably because the government was no longer seeking all the relief it initially requested in its complaint.
Page 2 Appellate Case: 24-2086 Document: 26-1 Date Filed: 12/26/2024 Page: 3
letter enclosing his untimely response to the summary-judgment motion; it raised the
defense of res judicata for the first time. Construing Mr. Travis’s filing as a motion
under Fed. R. Civ. P. 59(e), the district court rejected his argument because he had
failed to plead his res judicata defense as an affirmative defense as required by Fed.
R. Civ. P. 8(c). In the alternative, the court ruled that Mr. Travis had not satisfied his
burden of proof on his res judicata defense. The court thereafter entered final
judgment in favor of the government.
II. DISCUSSION
Mr. Travis argues on appeal that the district court erred in refusing to consider
his res judicata defense. We disagree. The district court acted well within the bounds
of its discretion.
Fed. R. Civ. P. 8(c) states that “[i]n responding to a pleading, a party must
affirmatively state any . . . affirmative defense.” The rule specifically lists res
judicata as an affirmative defense. As we have said, that defense “must usually be
pleaded by the parties pursuant to Fed. R. Civ. P. 8(c) or it is lost.” United States v.
Mitchell, 518 F.3d 740, 749 (10th Cir. 2008). “As a general rule, a defendant waives
an affirmative defense by failing to plead it.” Burke v. Regalado, 935 F.3d 960, 1040
(10th Cir. 2019); see 5 Charles Alan Wright, Arthur R. Miller, & A. Benjamin
Spencer, Federal Practice and Procedure § 1270 at 600 (4th ed. 2021) (explaining
that Rule 8(c) “require[es] the defendant to plead any of the listed affirmative
defenses . . . that it wishes to raise or risk waiving them” (emphasis added)).
Nevertheless, we have held that a party can raise “an affirmative defense for the first
Page 3 Appellate Case: 24-2086 Document: 26-1 Date Filed: 12/26/2024 Page: 4
time in a post-answer motion . . . .” Ahmad v. Furlong, 435 F.3d 1196, 1201 (10th
Cir. 2006) (internal quotation marks omitted). We treat such untimely assertions of
affirmative defenses as motions to amend the answer. See id. at 1202. “Because we
review for abuse of discretion a district court’s ruling on a motion to amend, we
apply the same standard to a ruling on whether an affirmative defense may first be
raised in a motion for summary judgment.” Id. (citation omitted); see Sky Harbor Air
Serv., Inc. v. Reams, 491 F. App’x 875, 883–84 (10th Cir. 2012) (applying the abuse-
of-discretion standard to the district court’s refusal to consider an untimely
affirmative defense raised after partial summary judgment was granted).
Because of the timing of Mr. Travis’s motion, it could be construed as either a
Fed. R. Civ. P. 59(e) motion or a Fed. R. Civ. P. 54(b) motion. See United States v.
Amado, 841 F.3d 867, 871 (10th Cir. 2016) (“The substance of the motion, not its
form or label, controls its disposition.”). We therefore consider each possibility in
turn. We conclude that under either rule, the district court did not err in refusing to
consider Mr. Travis’s res judicata defense. We look first to whether the district court
Free access — add to your briefcase to read the full text and ask questions with AI
Appellate Case: 24-2086 Document: 26-1 Date Filed: 12/26/2024 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT December 26, 2024 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 24-2086 (D.C. No. 2:22-CV-00315-MIS-JHR) HOWARD D. TRAVIS, (D. N.M.)
Defendant - Appellant. _________________________________
ORDER AND JUDGMENT * _________________________________
Before HARTZ, BALDOCK, and MORITZ, Circuit Judges. _________________________________
Pro se Plaintiff Howard D. Travis appeals the district court’s judgment against
him for his unpaid federal-income-tax liabilities. He contends on appeal that the
government’s claim against him is barred by res judicata. We exercise jurisdiction
under 28 U.S.C. § 1291. Because the district court did not abuse its discretion in
refusing to consider Mr. Travis’s untimely res judicata defense, we affirm.
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: 24-2086 Document: 26-1 Date Filed: 12/26/2024 Page: 2
I. BACKGROUND
Mr. Travis failed to file income-tax returns for tax years 2007 through 2012.
On January 12, 2022, the government filed suit in the United States District Court for
the Southern District of Ohio (the Ohio case) to enforce tax liens against real
property owned by Mr. Travis and his wife. On June 30, 2023, the district court ruled
that the Ohio property was encumbered by federal tax liens and appointed a receiver
to sell it. After the Ohio property was sold, the district court disbursed the net
proceeds to the government and closed the case. The sale proceeds were sufficient to
satisfy Mr. Travis’s tax liabilities for tax years 2007 through 2009. Mr. Travis
remained liable for his unpaid taxes for tax years 2010 through 2012.
On April 26, 2022, while the Ohio case was still pending, the government filed
a complaint in the United States District Court for the District of New Mexico
seeking judgment against Mr. Travis for his unpaid federal-income-tax liabilities. Mr.
Travis filed his answer on June 29, 2022. On January 19, 2024, after the government
received the proceeds from the sale of Mr. Travis’s Ohio property, it moved for
summary judgment on Mr. Travis’s remaining liabilities for tax years 2010 through
2012. 1 On February 27, 2024, the district court granted the government’s motion
subject to the government’s providing a supplemental memorandum and evidence
showing the precise amount owed. On March 11, 2024, Mr. Travis sent the court a
1 The government and the district court characterized this motion as a motion for partial summary judgment, presumably because the government was no longer seeking all the relief it initially requested in its complaint.
Page 2 Appellate Case: 24-2086 Document: 26-1 Date Filed: 12/26/2024 Page: 3
letter enclosing his untimely response to the summary-judgment motion; it raised the
defense of res judicata for the first time. Construing Mr. Travis’s filing as a motion
under Fed. R. Civ. P. 59(e), the district court rejected his argument because he had
failed to plead his res judicata defense as an affirmative defense as required by Fed.
R. Civ. P. 8(c). In the alternative, the court ruled that Mr. Travis had not satisfied his
burden of proof on his res judicata defense. The court thereafter entered final
judgment in favor of the government.
II. DISCUSSION
Mr. Travis argues on appeal that the district court erred in refusing to consider
his res judicata defense. We disagree. The district court acted well within the bounds
of its discretion.
Fed. R. Civ. P. 8(c) states that “[i]n responding to a pleading, a party must
affirmatively state any . . . affirmative defense.” The rule specifically lists res
judicata as an affirmative defense. As we have said, that defense “must usually be
pleaded by the parties pursuant to Fed. R. Civ. P. 8(c) or it is lost.” United States v.
Mitchell, 518 F.3d 740, 749 (10th Cir. 2008). “As a general rule, a defendant waives
an affirmative defense by failing to plead it.” Burke v. Regalado, 935 F.3d 960, 1040
(10th Cir. 2019); see 5 Charles Alan Wright, Arthur R. Miller, & A. Benjamin
Spencer, Federal Practice and Procedure § 1270 at 600 (4th ed. 2021) (explaining
that Rule 8(c) “require[es] the defendant to plead any of the listed affirmative
defenses . . . that it wishes to raise or risk waiving them” (emphasis added)).
Nevertheless, we have held that a party can raise “an affirmative defense for the first
Page 3 Appellate Case: 24-2086 Document: 26-1 Date Filed: 12/26/2024 Page: 4
time in a post-answer motion . . . .” Ahmad v. Furlong, 435 F.3d 1196, 1201 (10th
Cir. 2006) (internal quotation marks omitted). We treat such untimely assertions of
affirmative defenses as motions to amend the answer. See id. at 1202. “Because we
review for abuse of discretion a district court’s ruling on a motion to amend, we
apply the same standard to a ruling on whether an affirmative defense may first be
raised in a motion for summary judgment.” Id. (citation omitted); see Sky Harbor Air
Serv., Inc. v. Reams, 491 F. App’x 875, 883–84 (10th Cir. 2012) (applying the abuse-
of-discretion standard to the district court’s refusal to consider an untimely
affirmative defense raised after partial summary judgment was granted).
Because of the timing of Mr. Travis’s motion, it could be construed as either a
Fed. R. Civ. P. 59(e) motion or a Fed. R. Civ. P. 54(b) motion. See United States v.
Amado, 841 F.3d 867, 871 (10th Cir. 2016) (“The substance of the motion, not its
form or label, controls its disposition.”). We therefore consider each possibility in
turn. We conclude that under either rule, the district court did not err in refusing to
consider Mr. Travis’s res judicata defense. We look first to whether the district court
permissibly refused to consider Mr. Travis’s res judicata argument if his motion
arose under Rule 59(e). We conclude that it did. A Rule 59(e) motion “is appropriate
where the court has misapprehended the facts, a party’s position, or the controlling
law.” Servants of Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir. 2005). It is not
appropriate where, as here, the proffered defense could have (and should have, under
Rule 8(c)) been raised earlier. See id. (Under Rule 59(e), “[i]t is not appropriate to . .
. advance arguments that could have been raised in prior briefing.”); Kipling v. State
Page 4 Appellate Case: 24-2086 Document: 26-1 Date Filed: 12/26/2024 Page: 5
Farm Mut., 774 F.3d 1306, 1309 (10th Cir. 2014) (affirming a district court’s refusal
to consider an argument in a Rule 59(e) motion because that argument could have
been raised earlier in the litigation). We reach the same conclusion if we treat Mr.
Travis’s pleading as a motion under Rule 54(b). Rule 54(b) states that “any order or
other decision” that “does not end the action as to any of the claims or parties . . .
may be revised at any time before the entry of a judgment adjudicating all the claims
and all the parties’ rights and liabilities.” Fed. R. Civ. P. 54(b). Thus, “district courts
generally remain free to reconsider their earlier interlocutory orders.” Been v. O.K.
Indus., Inc., 495 F.3d 1217, 1225 (10th Cir. 2007).
But Rule 54(b) does not require district courts to address every new issue
raised. That proposition is particularly true when it comes to a party’s request to add
a claim or a defense. As stated above, we treat invocations of untimely affirmative
defenses as constructive motions to amend the answer. See Ahmad, 435 F.3d at 1202.
And “we have often found untimeliness alone a sufficient reason to deny leave to
amend.” Viernow v. Euripides Dev. Corp., 157 F.3d 785, 799–800 (10th Cir.1998)
(internal quotation marks omitted) (district court did not abuse its discretion in
refusing to allow party to amend complaint 19 months after filing original complaint
and after court orally granted summary judgment); see also Hayes v. Whitman, 264
F.3d 1017, 1026 (10th Cir. 2001) (district court did not abuse its discretion in
refusing to allow party to amend more than two years after filing original complaint);
Burke v. Holdman, 750 F. App’x 616, 624 (10th Cir. 2018) (district court did not
abuse its discretion in refusing to allow party to amend complaint almost a year after
Page 5 Appellate Case: 24-2086 Document: 26-1 Date Filed: 12/26/2024 Page: 6
it was put on notice of affirmative defense). Only after the district court conditionally
granted summary judgment, 21 months after Mr. Travis filed his initial answer, did
he raise his res judicata defense for the first time. He has not offered an adequate
justification for his failure to amend at an earlier date. He states that he only
“recently learned of the principle of res judicata/ claim preclusion,” Aplt. App. at
233; but “it is well established that ignorance of the law, even for an incarcerated pro
se petitioner, generally does not excuse prompt filing.” Marsh v. Soares, 223 F.3d
1217, 1220 (10th Cir. 2000) (internal quotation marks omitted).
Citing Creative Consumer Concepts, Inc. v. Kreisler, 563 F.3d 1070, 1076
(10th Cir. 2009), Mr. Travis argues that the district court abused its discretion
because the government was not prejudiced by his late-raised defense. But Kreisler
stands only for the proposition that in the absence of prejudice, the district court has
discretion to recognize a late defense. See id. Indeed, if the res judicata defense was
clearly established on the record, the district court might have given Mr. Travis some
leeway. But, if anything, the defense appears highly questionable. See Restatement
(Second) of Judgments § 30 cmt. b (Am. Law. Inst. 1982) (“A judgment in an action
based on jurisdiction over a thing is conclusive with respect to interests in the thing,
but does not bind anyone with respect to a personal liability . . . . Thus a judgment
foreclosing a mortgage . . . does not merge or discharge the unpaid portion of the
personal debt secured.”). The district court here chose not to bend the rules for Mr.
Travis. It did not abuse its discretion in so doing.
Page 6 Appellate Case: 24-2086 Document: 26-1 Date Filed: 12/26/2024 Page: 7
III. CONCLUSION
We AFFIRM the judgment of the district court.
Entered for the Court
Harris L Hartz Circuit Judge
Page 7