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Kirby v. Resmae Mortgage Corp.

United States Court of Appeals, Tenth Circuit

September 23, 2015

ELBERT KIRBY, JR.; CALEB MEADOWS, Plaintiffs - Appellants,
v.
RESMAE MORTGAGE CORPORATION; LASALLE BANK NATIONAL ASSOCIATION; U.S. BANK NATIONAL ASSOCIATION; SAXON MORTGAGE SERVICES, INC.; OCWEN LOAN SERVICING, LLC; JOHN AND JANE DOES 1-100, Defendants-Appellees.

(D.C. No. 4:14-CV-00389-GKF-FHM) (N.D. Okla.)

Before HARTZ, PORFILIO, and PHILLIPS, Circuit Judges.

ORDER AND JUDGMENT [*]

John C. Porfilio Circuit Judge

Pro se plaintiffs Elbert Kirby, Jr. and Caleb Meadows (collectively "Kirby") appeal the district court's orders denying their motion for default judgment, dismissing their initial and amended complaints, and denying their request to file a second amended complaint. We affirm.

I. Background

Kirby sued Resmae Mortgage Corporation and others under the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. §§ 1961-1968, accusing them of using false evidence of indebtedness to deprive him of property. Specifically, Kirby alleged that he received monthly requests for payment from someone who claimed to have a security interest in his property. Kirby did not, however, state whether he ever made a payment or explain how he was deprived of property. As a result, the district court dismissed Kirby's complaint for failure to state a claim on which relief could be granted. Kirby subsequently filed an amended complaint, which the court also dismissed on grounds that his claims were "clearly baseless" and "factually frivolous."

Having given Kirby two opportunities to bring a valid claim, the court entered judgment in favor of Resmae and the other defendants. After the judgment entered, Kirby filed a motion asking the district court to vacate its prior order and allow him to file a second amended complaint. The court denied the motion and Kirby appealed.

II. Discussion

On appeal, Kirby argues the district court erred by (1) denying his motion for default judgment against Resmae, (2) dismissing his initial and amended complaints, and (3) denying his postjudgment motion for leave to file a second amended complaint. We lack jurisdiction to review Kirby's first two claims and conclude the district court did not abuse its discretion when it denied Kirby's motion for leave to file an amended complaint.

A. Orders Denying Kirby's Motion for Default Judgment and Dismissing his Complaints

Kirby argues in his opening brief that the district court erred when it denied his motion for default judgment and dismissed his initial and amended complaints. Kirby's notice of appeal, however, designates only one order for appellate review: the district court's "final order on the Plaintiffs['] Motion for Leave to File an Amended Complaint based upon Newly Discovered Evidence of Extrinsic Value entered into this action on March 3, 2015." We do not have jurisdiction to review orders not identified in the notice of appeal. Foote v. Spiegel, 118 F.3d 1416, 1422 (10th Cir. 1997). We therefore limit our review to the district court's order denying Kirby's postjudgment motion for leave to file a second amended complaint.

B. Postjudgment Motion for Leave to Amend Complaint

Kirby claims the district court erred when it denied his postjudgment motion for leave to file a second amended complaint. He argues the court should have allowed him to amend his complaint in light of new evidence, namely a prospectus supplement for a particular mortgage loan asset-backed certificate. He also claims the district court should have recused because the judge had two accounts with Merrill Lynch, which filed the prospectus supplement with the Securities and Exchange Commission.[1] We disagree on both counts.

We review the denial of a postjudgment motion for abuse of discretion. Jennings v. Rivers, 394 F.3d 850, 854 (10th Cir. 2005). "A district court abuses its discretion when it makes a clear error of judgment, exceeds the bounds of permissible choice, or when its decision is arbitrary, capricious or whimsical, or results in a manifestly unreasonable judgment." BancInsure, Inc., v. F.D.I.C., Nos. ...


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