No. 1:14-CV-00921-LH-KBM) (D. N.M.)
BRISCOE, BACHARACH, and McHUGH, Circuit Judges.
ORDER AND JUDGMENT [*]
Beck Briscoe Circuit Judge
a dispute between two brothers over their deceased
father's estate and filed as a diversity action.
Plaintiff Byron Dean Waller, a pro se Florida inmate, claims his
brother, Michael James Waller, and sister-in-law, Paula
Waller, who are residents of New Mexico, tortiously
interfered with his inheritance expectancy by exerting undue
influence over their father, who executed a will in Missouri,
but later moved to New Mexico where he died. The district
court granted summary judgment to Michael and Paula, ruling
that the suit was barred under New Mexico's three-year
statute of limitations. We have jurisdiction under 28 U.S.C.
§ 1291 and affirm the district court's judgment.
a Florida resident, is presently serving a twenty-year
sentence in a Florida state prison. His brother, Michael, and
sister-in-law, Paula, live in New Mexico. Byron and
Michael's father, James Byron Waller, was a resident of
Missouri and was hospitalized in March 2006 after suffering a
stroke. While in the hospital, James and Michael met with a
lawyer, who prepared a last will and beneficiary deed that
conveyed all of James' estate to Michael. At the time,
James had difficulty speaking, but he was lucid. He executed
the will and deed on April 10, 2006, and was discharged from
the hospital on April 18, 2006. James soon moved to New
Mexico, and approximately a year later, on June 15, 2007, he
is some uncertainty concerning when Byron first learned that
he would not receive an estate distribution. According to an
affidavit that Michael submitted in support of summary
judgment, he told Byron weeks after their father's death
that Byron would receive only $5, 000 from a life insurance
policy, to which Byron replied, "I know." R. at
229. Byron, however, alleged that his father had previously
executed a will that equally divided the estate between him
and his brother. Byron claimed he had no knowledge of the
last will and deed until early 2010, when, during an
argument, Michael told him their father had executed the will
and deed that transferred the entire estate to him. Michael
denies that a previous will ever existed, but he does not
dispute that Byron received a copy of the last will and
beneficiary deed on or about January 27, 2011.
these events, Byron filed at least three other actions
claiming that Michael and Paula tortiously interfered with
his inheritance expectancy. Two of those actions were
initiated in the Southern District of Florida and were
dismissed for lack of jurisdiction. See Waller v.
James, No. 11-CV-22547 (S.D. Fla. Aug. 31, 2011) (court
could not identify any jurisdictional basis); Waller v.
Waller, No. 11-CV-23596 (S.D. Fla. Sept. 21, 2012)
(dismissed for lack of personal jurisdiction). The third suit
Byron filed in the District of New Mexico, though he
voluntarily dismissed that case because he was sick and
wished to resolve the dispute amicably. Waller v.
Waller, No. 12-CV-1234 (D. N.M. Apr. 10, 2013). There
was no such resolution, however, because on October 14, 2014,
Byron initiated this suit by filing the same complaint he
filed in No. 12-CV-1234, again alleging that Michael and
Paula tortiously interfered with his inheritance expectancy.
and Paula answered the complaint and moved for summary
judgment, arguing, among other things, that the suit was
time-barred. Byron failed to respond, however, and after well
over a month passed, Michael and Paula notified the court
that briefing was complete. This prompted Byron to file a
motion in opposition, seeking an extension of time to
respond. Thereafter, he also moved for appointment of counsel
and discovery pursuant to Fed.R.Civ.P. 54(d). The district
court, in three separate orders, denied counsel, denied
discovery and an extension, and granted Michael and
Paula's motion for summary judgment. Byron subsequently
Standard of Review
review a district court's decision to grant summary
judgment de novo, applying the same standard as the district
court." Wright v. Experian Info. Sols., Inc.,
805 F.3d 1232, 1238-39 (10th Cir. 2015) (internal quotation
marks omitted). Courts will grant summary judgment if
"'the movant shows that there is no genuine dispute
as to any material fact and the movant is entitled to
judgment as a matter of law.'" Birch v. Polaris
Indus., Inc., 812 F.3d 1238, 1251 (10th Cir. 2015)
(quoting Fed.R.Civ.P. 56(a)). "When applying this
standard, we view the evidence and draw reasonable inferences
therefrom in the light most favorable to the nonmoving
party." Wright, 805 F.3d at 1239 (internal
quotation marks omitted).
summary judgment standard "provides that the mere
existence of some alleged factual dispute between
the parties will not defeat an otherwise properly supported
motion for summary judgment; the requirement is that there be
no genuine issue of material fact."
Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
247-48 (1986). "An issue is genuine if there is
sufficient evidence on each side so that a rational trier of
fact could resolve the issue either way. An issue of fact is
material if under the substantive law it is essential to the
proper disposition of the claim." J.V. v.
Albuquerque Public Schs., 813 F.3d 1289, 1295 (10th Cir.
2016) (citations and internal ...