F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
MAY 7 1997
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
CHARLOTTE ANN PLOTNER, an
individual,
Plaintiff-Appellant, No. 96-6212
(D.C. No. CIV-95-50-R)
v. (W.D. Okla.)
AT&T CORPORATION, a New York
Corporation; GERALD L. GAMBLE;
CHARLES C. GREEN; KENNETH N.
MCKINNEY; MARK D. COLDIRON;
JIM T. PRIEST; GARY D.
HAMMOND; MCKINNEY
STRINGER & WEBSTER PC.,
Defendants-Appellees,
ORDER AND JUDGMENT *
Before PORFILIO, TACHA, and BRISCOE, Circuit Judges.
*
This order and judgment is not binding precedent, except under the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.
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.
Plaintiff’s primary asset in her Chapter 11 bankruptcy estate was an 80-acre
piece of commercial property in Oklahoma City. Over her objections, the
bankruptcy court approved the sale of the property to AT&T, through a strawman,
and the district court dismissed her appeal as moot because the sale had been
consummated. Plaintiff then filed this action in the district court alleging fraud
on the bankruptcy court against all defendants except Gerald Gamble and breach
of fiduciary duty against Gamble and seeking rescission of the sale plus
compensatory and punitive damages.
Defendants moved for dismissal or summary judgment based on, inter alia,
lack of subject matter jurisdiction. As the district court noted, plaintiff’s basis for
jurisdiction has evolved since her original complaint against AT&T only, which
alleged diversity jurisdiction. Adding the remaining defendants with her first
amended complaint, plaintiff changed her jurisdictional basis to federal question.
In response to defendants’ motions, the only basis for jurisdiction plaintiff alleged
was as an independent action for fraud on the court under Fed. R. Civ. P. 60(b).
See, e.g., Appellant’s App. Vol. III at 1219.
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The district court concluded that while Rule 60(b) preserved ancillary
jurisdiction to entertain an independent equitable action challenging a judgment
based on fraud on the court, see Crosby v. Mills, 413 F.2d 1273, 1275-76 (10th
Cir. 1969), this case did not present the unusual and exceptional circumstances
necessary to warrant exercise of its jurisdiction, in large part because the fraud
was allegedly perpetrated on the bankruptcy court, and the bankruptcy court could
provide an adequate remedy to plaintiff. The court therefore dismissed plaintiff’s
complaint without prejudice to her seeking appropriate relief in the bankruptcy
court. The court also denied her motion to file a second amended complaint as
moot. Plaintiff appeals, although before even filing her notice of appeal she had
filed a separate action in the bankruptcy court seeking virtually the same relief as
in this case.
On appeal, plaintiff contends that the district court had federal question
jurisdiction due to defendants’ commission of the crime of bankruptcy fraud and
their use of the courts to deprive her of her due process rights. Though it is
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unclear from the record whether plaintiff ever asserted these bases for jurisdiction
in the district court, 1 it is clear that plaintiff did not raise these issues in response
to defendants’ motions to dismiss or for summary judgment, nor did the district
court consider them in its dismissal order. We do not consider on appeal issues
not raised or abandoned in the district court absent unusual circumstances that are
not present here. See Rademacher v. Colorado Ass’n of Soil Conservation Dists.
Med. Benefits Plan, 11 F.3d 1567, 1571-72 (10th Cir. 1993); Daigle v. Shell Oil
Co., 972 F.2d 1527, 1539 (10th Cir. 1992) (court may “eschew untimely raised
legal theories which may support . . . jurisdiction”). Because plaintiff did not
preserve her arguments for federal question jurisdiction, we reject her contention
that the dismissal violated her right to a jury trial.
Plaintiff also contends that the unusual and exceptional circumstances of
this case required exercise of the district court’s ancillary jurisdiction over this
case as an independent action. She also contends that the district court abused its
discretion in not allowing her to amend her complaint to add an additional
defendant. The district court has discretion regarding whether to exercise its
ancillary jurisdiction over an independent action, see King Fisher Marine Serv.,
1
Plaintiff failed to comply with 10th Cir. R. 28.2(b) requiring her to provide
“with respect to each issue raised on appeal, a statement as to where in the record
the issue was raised and ruled upon.” Additionally, she did not provide an overall
index to her nearly 2000-page appendix, much of which applies to her separate
bankruptcy court case.
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Inc. v. 21st Phoenix Corp., 893 F.2d 1155, 1158 (10th Cir. 1990); Treadaway v.
Academy of Motion Picture Arts & Sciences, 783 F.2d 1418, 1422 (9th Cir.
1986), and we see no abuse of that discretion here. We also agree with the court
that whether to allow amendment of the complaint is moot. Thus, we affirm the
district court’s dismissal of plaintiff’s complaint for substantially the same
reasons as stated in the district court’s July 30, 1996 amended order.
AFFIRMED.
Entered for the Court
John C. Porfilio
Circuit Judge
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