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Cook v. Baca

United States Court of Appeals, Tenth Circuit

August 26, 2015

DANIEL W. COOK, individually, Plaintiff - Appellant,
THE HONORABLE THEODORE C. BACA, individually and in his official capacity; WELLS FARGO BANK, N.A.; WELLS FARGO & COMPANY; JAY D. HERTZ, ESQ. and MICHELLE K. OSTRYE, ESQ., both individually and as counsel for Wells Fargo Bank, N.A. and Wells Fargo & Company, N.A.; PENNY T. KNIPPS, individually and in her capacity as a V.P. of Wells Fargo Bank, N.A.; SUTIN, THAYER BROWNE P.C.; SCOTT AND PAMELA JANE GARRETT TRUST dated June 14, 1999; SCOTT GARRETT, individually, as an officer of Bid Group, Inc., and as trustee of the Trust; PAMELA JANE GARRETT, individually and as trustee of the Trust; BID GROUP, INC.; GARRETT CAPITAL, LLC; JULIE VARGAS, ESQ. and CATHERINE DAVIS, ESQ., both counsel for Scott Garrett, the Garrett Trust, Garrett Capital, LLC, and Bid Group, Inc.; HUNT & DAVIS, P.C.; JOHN DOE and/or JANE DOE, Defendants-Appellees. DANIEL W. COOK, Plaintiff - Appellant,
WELLS FARGO BANK, N.A., SCOTT AND PAMELA JANE GARRETT TRUST, BID GROUP, INC., SCOTT GARRETT and PAMELA JANE GARRETT, individually and as trustees of the Trust, and SCOTT GARRETT, as an officer of BID GROUP, INC., Defendants-Appellees.

D.C. Nos. 1:10-CV-01173-JAP-KBM & 1:13-CV-00669-JAP-KBM (D. N.M.)




Mr. Daniel W. Cook appeals orders issued in two consolidated cases. In Case No. 10-CV-01173-JAP-KBM, he seeks review of the district judge's orders consolidating cases and imposing filing restrictions, the magistrate judge's refusal to allow the filing of certain motions, and other interlocutory orders related to the filing restrictions. In Case No. 13-CV-00669-JAP-KBM, Mr. Cook appeals from the district judge's order dismissing the complaint.

We dismiss the appeal in part based on a lack of appellate jurisdiction, modify the order of filing restrictions, and affirm the remainder of the challenged orders.

1. Mr. Cook's Statement to the District Court and the Eventual Filing Restrictions

This appeal grew out of an action in district court: No. 10-CV-1173. In that action, Mr. Cook sued a state district judge, the Hon. Theodore Baca. Judge Baca moved to enjoin further pleadings from Mr. Cook, claiming Mr. Cook was reasserting "disturbing, unfounded, conclusory, inflammatory allegations." R. at 1424.

In opposing Judge Baca's request, Mr. Cook stated:

As the Tenth Circuit has held, ultimately the question regarding a need for any kind of filing restrictions is whether a litigant is likely to continue to abuse the judicial process and harass other parties. . . . Cook affirmatively states to this Court there is absolutely no likelihood he would file any other actions in any federal district court against the parties named in his one and only complaint filed by Cook in the federal courts, not unless the Tenth Circuit found the dismissal of his complaint by this Court was err. [sic]

Id. at 1785 (emphasis added). Noting Mr. Cook's statement, the district judge declined in 2012 to impose filing restrictions, but dismissed the complaint. Id. at 1796.

Mr. Cook appealed the dismissal. Though we affirmed the dismissal, we remanded in part for the district court to modify the dismissal by making it without prejudice for the claims on which Mr. Cook lacked standing. Cook v. Baca, 512 F.App'x 821, 824 (10th Cir. 2013) (unpublished op.).

After we remanded for this narrow purpose, Mr. Cook filed an application in No. 10-CV-1173, entitled "Request for Hearing to Determine Scope of Tenth Circuit Remand and Notice of Cook's Ownership of Estate Interests in State Law Causes, Counts VII & VIII, Arising in a Title 11, § 1334 Jurisdiction." R. at 1863. The district court denied the request for a hearing concerning the scope of the remand, declined to exercise supplemental jurisdiction over the state-law causes of action, and modified the relevant portion of the prior dismissal to be without prejudice (as our court had instructed). Mr. Cook then filed a new action in the District of New Mexico (No. 13-CV-669) against Wells Fargo & Company and others.

Months later, Wells Fargo filed a motion in No. 10-CV-1173, asking the district court to (1) impose filing restrictions against Mr. Cook and (2) find Mr. Cook in contempt of court for breaking his promise that he would not file a new action in federal district court. In Wells Fargo's view, Mr. Cook violated the district court's previous order and was continuing to file frivolous suits over the same subject-matter.

The district court scheduled a hearing to determine whether (1) to impose filing restrictions and (2) to find Mr. Cook in contempt. Mr. Cook filed two "emergency" motions to vacate the hearing and presented evidence.

In the meantime, the district court sua sponte consolidated No. 10-CV-1173 and Mr. Cook's new filing (No. 13-CV-669), directed that all future filings be made in No. 10-CV-1173, and denied Mr. Cook's motion to vacate the consolidation.

On March 11, 2014, the district judge imposed filing restrictions, relying on a need to prevent additional frivolous filings. Toward that end, the district judge directed the Chief Magistrate Judge to review future filings to determine whether they were frivolous. R. at 2162.

The next document recorded on the district court's docket is Mr. Cook's notice of appeal. But Mr. Cook claims he submitted a number of post-judgment pleadings that were not docketed because they had been filed while he was under filing restrictions. They include:

• An application for leave to file a Rule 59(e) motion challenging the imposition of filing restrictions. The Chief Magistrate Judge denied Mr. Cook's application on the ground that it lacked merit. Id. at 2186 (letter attached to notice of appeal). The magistrate judge struck the file stamp, removed the application from the docket, and returned the documents with a letter denying authorization.
• A motion for an order directing the clerk to file the prior Rule 59(e) application. The clerk returned this document to Mr. Cook, with a note that the Chief Magistrate Judge had found the application lacked merit. Id. at 2192.
• A motion for authorization to object to the magistrate judge's so-called "recommendation" on the application to file a Rule 59(e) motion. The clerk returned this document, unfiled, with similar language. See id. at 2197.

On May 9, 2014, Mr. Cook filed a notice of appeal from the order imposing filing restrictions and certain other district court orders. At that point, the district judge had not disposed of the other consolidated case, No. 13-CV-669. The district judge later entered a final judgment ...

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