UNITED STATES COURT OF APPEALS
Filed 10/21/96
FOR THE TENTH CIRCUIT
In re: SAMMY S. JENKINS and
MADELINE F. JENKINS,
Debtors,
No. 96-2043
_________________________ (D.C. No. CIV-96-716-SC)
(D. N.M.)
SAMMY S. JENKINS, MADELINE F.
JENKINS,
Plaintiffs-Appellants,
v.
JAMES W. OAKLEY, CLAUDEAN
OAKLEY,
Defendants-Appellees.
ORDER AND JUDGMENT *
Before BRISCOE and MURPHY, Circuit Judges, and VAN BEBBER, ** District
Judge.
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
**
Honorable G. Thomas Van Bebber, Chief Judge, United States District
Court for the District of Kansas, sitting by designation.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore
ordered submitted without oral argument.
Sammy S. Jenkins and Madeline F. Jenkins, appearing pro se, appeal from
the district court’s judgment affirming the dismissal of their complaint in an
adversary proceeding before the bankruptcy court. Our jurisdiction over this
appeal arises from 28 U.S.C. §§ 158(a) and 1291. Appellees’ motion to
supplement the record on appeal with a full transcript of the bankruptcy court
proceeding is GRANTED.
After the first witness was sworn in during the bankruptcy court trial on the
merits of the adversary proceeding, appellants sought to invoke Fed. R. Evid. 615,
the “witness rule,” against appellees, that is, exclude them from appellants’
examination of the witness. Noting that the rule is inapplicable to parties, the
bankruptcy court declined to exclude appellees. Appellants then sought to change
the order of witnesses, which the court also rejected. Mr. Jenkins complained that
“due process is not operating in this case,” Rec. Supp. at 20, and stated: “then we
will call it off. I can’t prove my case the way you are doing it,” id. Appellees
moved for judgment in their favor. When the judge asked for appellants’
response to that motion, Mr. Jenkins reiterated his contention that he was being
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denied due process, and stated that the proceedings were “totally
unconstitutional” unless the court put the witness rule in effect. Id. at 21. When
Mr. Jenkins refused to proceed with his case and present evidence in support of
his claims, the bankruptcy court dismissed the complaint with prejudice and
awarded costs to appellees. Mr. Jenkins appealed the bankruptcy court's ruling to
the district court.
Appellees filed a motion to dismiss the appeal, contending that appellants’
notice of appeal failed to satisfy the applicable standards. After briefing on the
appeal, the magistrate judge recommended granting the motion to dismiss in part
by dismissing Madeline F. Jenkins from the appeal, and affirming the bankruptcy
court’s dismissal of the adversary proceeding complaint. The district court
adopted the magistrate judge’s report and recommendation.
On appeal to this court, the Jenkins raise three issues. First, they argue the
merits of their contentions in the underlying bankruptcy proceeding and a related
state court suit. Because neither the bankruptcy court nor the district court
reached these issues, we cannot review them on appeal. See R. Eric Peterson
Constr. Co. v. Quintek, Inc. (In re R. Eric Peterson Constr. Co.), 951 F.2d 1175,
1182 (10th Cir. 1991). Further, the district court correctly ruled that, outside of
appellees’ motion to dismiss, the only issue before it was the propriety of the
bankruptcy court’s dismissal. See Affiliated Ute Citizens v. Ute Indian Tribe,
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22 F.3d 254, 255 (10th Cir. 1994)(no review of issues not necessary to support
the underlying ruling).
Second, appellants assert that the bankruptcy court was biased against them
because they are pro se litigants. Some of their contentions in support of this
argument were not raised to the district court, and we decline to entertain them.
To the extent that this issue was raised and argued before the district court, we
agree with the district court that appellants’ allegations do not suffice to
demonstrate bias. See Lopez v. Behles (In re American Ready Mix, Inc.), 14 F.3d
1497, 1501 (10th Cir.), cert. denied, 115 S. Ct. 77 (1994).
Subsumed within appellants’ argument on this point, albeit not raised
expressly until their reply brief, is a challenge to the bankruptcy court’s denial of
appellants’ motion to invoke the witness rule and the subsequent dismissal of
their complaint when they refused to go forward with their evidence. We review
these bankruptcy court rulings for an abuse of discretion. See First Nat’l Bank
LaGrange v. Martin (In re Martin), 963 F.2d 809, 814-15 & n.4 (5th Cir.
1992)(ruling under Fed. R. Evid. 615); In re Pyramid Energy, Ltd., 869 F.2d
1058, 1061 (7th Cir. 1989)(bankruptcy court’s dismissal of adversary proceeding).
Although we hold appellants’ pleadings to less stringent standards than those
drafted by lawyers, Meade v. Grubbs, 841 F.2d 1512, 1526 (10th Cir. 1988), pro
se litigants must follow the same procedural rules as other litigants, Green v.
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Dorrell, 969 F.2d 915, 917-18 (10th Cir. 1992), cert. denied, 507 U.S. 940 (1993).
After a review of the record on appeal, we conclude the bankruptcy court did not
abuse its discretion in this case. The bankruptcy court was correct in ruling the
witness rule cannot be invoked to exclude parties (see Fed. R. Evid. 615), and the
court was also correct in dismissing appellants' case when Mr. Jenkins refused to
proceed.
Third, appellants contend the district court erred when it granted appellees’
motion to dismiss in part, dismissing Madeline F. Jenkins from the appeal. In
their motion to dismiss, appellees argued that the notice of appeal failed to name
Ms. Jenkins as an appellant from the bankruptcy court’s judgment, and the district
court agreed. We review this issue de novo, as a question of law, Estate of Holl v.
Commissioner, 967 F.2d 1437, 1438 (10th Cir. 1992), and conclude that the
district court’s ruling was correct. The notice of appeal does not evidence Ms.
Jenkins’ intent to appeal, as argued on appeal to this court. See Storage
Technology Corp. v. United States Dist. Ct., 934 F.2d 244, 247 (10th Cir.
1991)(failure to “adequately describe all the appealing parties” results in district
court’s lack of jurisdiction). Whether the district court erred in dismissing Ms.
Jenkins as an appellant becomes an esoteric question in this case because it
appears both Mr. and Ms. Jenkins were asserting the same issues. Whether there
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were one or two appellants would not alter the outcome of this case before the
district court or this court.
The judgment of the district court is AFFIRMED.
Entered for the Court
Mary Beck Briscoe
Circuit Judge
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