Vazquez v. Liberty Mutual Insurance Company

• Court: Court of Appeals for the Tenth Circuit
• Decided: December 23, 2024
• Docket: 24-3069
• Status: Unpublished

Opinion

Appellate Case: 24-3069 Document: 31-1 Date Filed: 12/23/2024 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT December 23, 2024 _________________________________ Christopher M. Wolpert Clerk of Court JESUS MIGUEL ONTIVEROS VAZQUEZ,

Plaintiff - Appellant,

v. No. 24-3069 (D.C. No. 6:23-CV-01234-HLT-BGS) LIBERTY MUTUAL INSURANCE (D. Kan.) COMPANY; MARK A. KAHRS; MARK A. POWELL; SANDRA V. GOMEZ,

Defendants - Appellees. _________________________________

ORDER AND JUDGMENT* _________________________________

Before McHUGH, BALDOCK, and LUCERO, Circuit Judges. _________________________________

Jesus Miguel Ontiveros Vazquez, appearing pro se, appeals from the district

court’s dismissal of his complaint. Exercising jurisdiction pursuant to 28 U.S.C.

§ 1291, we affirm the decision of the district court.

* 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 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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: 24-3069 Document: 31-1 Date Filed: 12/23/2024 Page: 2

I

On February 26, 2020, Mr. Vazquez was driving in Wichita, Kansas, when his

vehicle was rear-ended by another vehicle driven by a woman named Sandra Gomez.

According to Mr. Vazquez, he was injured in the accident.

Mr. Vazquez filed three pro se lawsuits related to the accident. The first suit

was filed in June 2021 in Kansas state court against his automobile insurance carrier,

Liberty Mutual Insurance Company (Liberty Mutual), and Ms. Gomez’s automobile

insurance carrier, Progressive Direct Insurance Company (Progressive).

Mr. Vazquez alleged that both insurers failed to pay him what he was owed under the

respective policies. Liberty Mutual filed a counterclaim seeking a declaratory

judgment that it satisfied its obligations to Mr. Vazquez under his policy.

Mr. Vazquez did not respond to the counterclaim and the state court entered a default

judgment against Mr. Vazquez on the counterclaim. Progressive successfully moved

to dismiss the claims asserted against it.

In October 2021, shortly after the state court entered default judgment against

him, Mr. Vazquez filed his second suit. Unlike the first suit, the second suit was

filed in federal district court. That suit named a number of defendants, including

Ms. Gomez, Liberty Mutual, and Progressive. The district court, acting pursuant to

the defendants’ motions to dismiss, concluded that Mr. Vazquez failed to state a

plausible federal claim for relief against any of the defendants, and also failed to state

any plausible state claims for relief against any defendant other than Ms. Gomez.

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The district court therefore dismissed all of Mr. Vazquez’s claims except for his

negligence claim against Ms. Gomez.

In November 2022, Mr. Vazquez and Ms. Gomez, with her counsel Marc

Powell, appeared for a court-ordered settlement conference before the magistrate

judge. During the conference, Mr. Vazquez offered to settle all claims against

Ms. Gomez for a specific amount and under specific terms. Ms. Gomez accepted the

offer, and the magistrate judge communicated the acceptance to Mr. Vazquez. At

that point, Mr. Vazquez said he wanted to withdraw his offer. The magistrate judge

then went on the record and summarized the agreement, giving each party the

opportunity to correct anything he said. Both parties agreed with the magistrate

judge’s factual recitation. Mr. Vazquez, however, explained that he feared the

settlement could prevent him from recovering the rest of his medical expenses from

Liberty Mutual.

After the settlement conference, Ms. Gomez moved to enforce the settlement

agreement. Mr. Vazquez filed an objection, alleging bad faith, fraudulent lies,

deception, misleading statements, false statements, and fraud on the part of

Ms. Gomez and Mr. Powell during the litigation and the settlement conference. The

magistrate judge granted Ms. Gomez’s motion, concluding “the parties knowingly

and voluntarily entered a binding contract.” R. at 35. The magistrate judge in turn

ordered Ms. Gomez to pay the amounts agreed to under the terms of the settlement

agreement.

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The instant case is Mr. Vazquez’s third suit. Mr. Vazquez initiated these

proceedings in November 2023 by filing a pro se civil complaint against Ms. Gomez,

Mr. Powell, Liberty Mutual, and Mark Kahrs, a Wichita-based attorney who was

allegedly involved in pursuing a medical debt incurred by Mr. Vazquez related to

medical treatment for injuries sustained in the automobile accident. The complaint

alleged that Liberty Mutual engaged in bad faith by denying payment to

Mr. Vazquez’s “medical creditors.” R. at 11. The complaint alleged that Mr. Powell

acted negligently or, alternatively, acted with fraudulent intent when he “affirmed on

behalf . . . of his client . . . false statements of material fact.” Id. The complaint

alleged that Ms. Gomez was responsible “for fraud and intentional

misrepresentation.” Id. As for Mr. Kahrs, the complaint alleged that he was

responsible “for unfair or unconscionable collection practices.” Id. Notably, the

complaint acknowledged that “a substantially equivalent complaint . . . was

previously filed in” federal district court. R. at 14.

All of the defendants moved to dismiss the complaint for failure to state a

claim upon which relief could be granted. Mr. Powell and Ms. Gomez argued that

Mr. Vazquez’s claims against them were “barred by res judicata and/or collateral

estoppel.” R. at 21. Liberty Mutual likewise argued that to the extent Mr. Vazquez

was attempting to plead a breach of contract claim for failure to pay personal injury

protection benefits, such a claim was barred by res judicata. Mr. Kahrs, for his part,

noted that Mr. Vazquez’s complaint contained only “two sentences related to” him

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and that those sentences contained only “conclusory allegations” regarding “unfair or

unconscionable collection practices” on his part. R. at 16.

Mr. Vazquez filed responses to each of the motions to dismiss. But, with

respect to the motions filed by Mr. Powell, Ms. Gomez, and Liberty Mutual, the

district court found he did not “meaningfully challenge the[] [defendants’]

position[s]” or “contend that the elements for res judicata [we]re missing.” R. at 317,

368. Instead, he argued “that his previous decision to proceed pro se denied him the

full and fair opportunity to litigate [his] claim[s] in state court.” R. at 368. With

respect to Mr. Kahrs’s motion to dismiss, Mr. Vazquez submitted supplemental

documents but did not attempt to amend his complaint to include additional factual

allegations.

The district court granted all of the motions to dismiss. The district court

concluded that Mr. Vazquez’s claims against Mr. Powell, Ms. Gomez, and Liberty

Mutual were “precluded by res judicata.” R. at 318 (order granting motion to dismiss

filed by Ms. Gomez and Mr. Powell); see R. at 368 (order granting Liberty Mutual’s

motion to dismiss). As for Mr. Kahrs, the district court concluded that the allegations

in Mr. Vazquez’s complaint were “wholly inadequate to state a claim against”

Mr. Kahrs, and it declined “to act as [Mr. Vazquez’s] advocate and dig through [his]

miscellaneous filings to discern whether” a valid “claim exist[ed]” against Mr. Kahrs.

R. at 314–15.

Following the entry of final judgment, Mr. Vazquez filed a timely notice of

appeal.

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II

The claims against Mr. Powell, Ms. Gomez and Liberty Mutual

Mr. Vazquez challenges the district court’s conclusion that his claims against

Mr. Powell, Ms. Gomez, and Liberty Mutual were precluded by res judicata. We

review de novo a district court’s grant of a motion to dismiss on res judicata grounds.

Campbell v. City of Spencer, 777 F.3d 1073, 1077 (10th Cir. 2014).

“The preclusive effect of a judgment is defined by claim preclusion and issue

preclusion, which are collectively referred to as ‘res judicata.’” Taylor v. Sturgell,

553 U.S. 880, 892 (2008). “The doctrine of claim preclusion . . . prohibits

‘successive litigation of the very same claim’ by the same parties.” Whole Woman’s

Health v. Hellerstedt, 579 U.S. 582, 599 (2016) (quoting New Hampshire v. Maine,

532 U.S. 742, 748 (2001)) (overruled in part on other grounds). This prohibition bars

“the parties or their privies from relitigating issues that were or could have been

raised” in an action that resulted in a final judgment on the merits. Allen v. McCurry,

449 U.S. 90, 94 (1980).

Mr. Vazquez does not dispute that he is asserting in this action the same claims

and arguments that he asserted in the prior federal action against Mr. Powell,

Ms. Gomez, and Liberty Mutual. Instead, he appears to suggest that claim preclusion

should not apply because the magistrate judge in the first federal action “deceived”

him and “induc[ed]” him to enter into a settlement agreement with Ms. Gomez.

Aplt. Br. at 21. He also appears to imply that these three defendants engaged in fraud

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and collusion in connection with the judgment that was entered in the first federal

case.

We reject Mr. Vazquez’s arguments for a number of reasons. To the extent

Mr. Vazquez believed the judgment that was entered against him in the first federal

action was the product of fraud or collusion, the proper remedy was to file a direct

appeal raising that issue. The same holds true for Mr. Vazquez’s assertion that the

magistrate judge acted improperly during the settlement conference and in enforcing

the settlement agreement. Notably, however, Mr. Vazquez did not file a direct appeal

following the entry of judgment in the first federal action. In any event, the claims of

fraud and collusion that Mr. Vazquez asserts in his appellate brief in this case are

vague and conclusory and lack any supporting details. Further, having reviewed the

record in this case, we see nothing therein that would remotely rise to the level of

misconduct on the part of the magistrate judge or these three defendants during the

course of the first federal lawsuit. We therefore affirm the district court’s conclusion

that Mr. Vazquez’s claims against Mr. Powell, Ms. Gomez, and Liberty Mutual are

barred by the doctrine of claim preclusion.

The claims against Mr. Kahrs

Mr. Vazquez also purports to challenge the district court’s dismissal of the

claims he asserted against Mr. Kahrs. Generally speaking, “[w]e review de novo a

district court’s grant of a motion to dismiss for failure to state a claim.” In re

Overstock Sec. Litig., 119 F.4th 787, 798 (10th Cir. 2024). “To survive a motion to

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dismiss, a complaint must contain sufficient factual matter, accepted as true, to state

a claim for relief that is plausible on its face.” Id. (internal quotation marks omitted).

As best we can determine, Mr. Vazquez does not seriously dispute the district

court’s conclusion that the allegations in his complaint were inadequate to state a

claim against Mr. Kahrs. Instead, Mr. Vazquez attempts, as he did below in

responding to Mr. Kahrs’s motion to dismiss, to provide more detail regarding his

claim against Mr. Kahrs. According to Mr. Vazquez, Mr. Kahrs “refuse[d] to show

the existence of a contract that stipulates that he is entitled to collect interest” from

Mr. Vazquez in connection with the medical debt that Mr. Vazquez owes to

Mid America Orthopedics. Aplt. Br. at 10 (internal quotation marks omitted).

Mr. Vazquez asserts that his “good faith attempts . . . to reach a fair settlement” of

his medical debt with Mr. Kahrs “failed,” so he brought his claim against Mr. Kahrs

in an effort to have the underlying medical debt “decided fairly.” Id. at 1.

Like the district court, we decline to consider any allegations or evidence

extraneous to Mr. Vazquez’s complaint. Instead, “we accept as true all well-pleaded

factual allegations in” Mr. Vazquez’s complaint and, construing them favorably to

him, consider “whether it is plausible that [he] is entitled to relief.” Dyno Nobel v.

Steadfast Ins. Co., 85 F.4th 1018, 1025 (10th Cir. 2023) (internal quotation marks

omitted). Doing so, we agree with the district court that Mr. Vazquez has failed to

state a valid claim for relief against Mr. Kahrs.

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III

We affirm the judgment of the district court.

Entered for the Court

Bobby R. Baldock Circuit Judge