Casa De Oro, LLC v. Assembly Yhwhhoshua

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
DEC 3 1998
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk

CASA DE ORO, LLC, a Colorado
limited liability company,

Plaintiff,

v. No. 98-1102
(D.C. No. 97-D-1107)
ASSEMBLY OF YHWHHOSHUA; (D. Colo.)
LAYCHER GONZALES, also known
as Laycher Eliseo Gonzales, and
Eliseo Gonzales; MAXINE P.
GONZALES, also known as Betty
Gonzales, and Petra Maxine
Gonzales, and all unknown occupants
in the premises,

Defendants,

v.

YOLANDA ESTRADA, STEVEN
GONZALES, JOHN GONZALES,
ANN GRAUMAN and TIM ORTIZ,

Third-Party Plaintiffs,

and

RANDY KALISH,

Third-Party Plaintiff-
Appellant,

v.
UNITED STATES OF AMERICA,
INTERNAL REVENUE SERVICE
and PHILIP BLONDIN,

Third-Party-Defendants-
Appellees,

and

ADELE K. ANDERSON, County
Court Judge, RONALD FRINDT,
BRADEN FRINDT & STINAR, LLC,
ANTHONEY J. ESTRADA and
DAVID A. COLE,

Third-Party-Defendants.

ORDER AND JUDGMENT *

Before BALDOCK , EBEL , and MURPHY , Circuit Judges.

After examining the briefs, appellate record, and the statement of reasons

for oral argument, this panel has determined unanimously that oral argument

would not materially assist the determination of this appeal. See Fed. R. App. P.

*
This order and judgment is not binding precedent, except under the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.

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34(a)(2); 10th Cir. R. 34.1.9. The case is therefore ordered submitted without

oral argument.

Appellant Randy Kalish, appearing pro se, appeals the orders of the district

court dismissing all claims against the United States, the Internal Revenue

Service, and Philip Blondin and remanding remaining issues of state law to the

District Court of Pueblo County, Colorado. We affirm the order of dismissal and

determine that we have no jurisdiction to review the order of remand.

Plaintiff Casa de Oro, LLC acquired real property at 1998 58th Lane,

Boone, Colorado, through federal foreclosure proceedings arising out of tax

assessments against the owners of the property, defendant Laycher Gonzales, the

pastor of defendant Assembly of Yhwhhoshua (the Assembly), and defendant

Maxine P. Gonzales, his wife. Casa de Oro then filed an action for possession in

state court, naming as defendants the Assembly, Mr. and Mrs. Gonzales, and all

unknown occupants in the premises. Church members entered the case as third-

party plaintiffs, filing claims for wrongful seizure and sale of the property. They

named the United States; the IRS; Mr. Blondin, a trial attorney with the United

States Department of Justice; Adele K. Anderson and David A. Cole, state court

judges; Casa de Oro; and others as third-party defendants. The United States

removed the action to federal district court. See 28 U.S.C. § 1346 (conferring

jurisdiction over a civil action against the United States).

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 After holding a hearing, the district court issued a series of three

dispositive orders: (1) dismissing with prejudice all claims against the United

States, its agencies, and Mr. Blondin on grounds of sovereign immunity and the

statutory provision that a claim which arises out of the collection of a tax is not

recoverable under the Federal Tort Claims Act, see 28 U.S.C. § 2680(c);

(2) dismissing with prejudice all claims against the state court judges based on

absolute judicial immunity; and (3) determining that it lacked subject matter

jurisdiction over the remaining issues, which related to possession of the property,

and remanding the matter back to the state court. One church member, appellant

Randy Kalish appearing pro se, has appealed. 1

We have jurisdiction to review the order of dismissal. See City of Waco v.

United States Fidelity & Guar. Co. , 293 U.S. 140, 143 (1934). We conclude, after

1
Mr. Kalish asserts in his filings that he is the “spokesperson” for the other
third-party plaintiffs, Yolanda Estrada, Steven Gonzales, John Gonzales, Ann
Grauman, and Tim Ortiz. We note one pro se litigant, who is not an attorney,
cannot represent other pro se parties. See 28 U.S.C. § 1654 (“parties may plead
and conduct their own cases personally or by counsel”); 10th Cir. R. 46.5 (“[a]
party who is not represented by an attorney must sign any motion, brief or other
paper”). Mr. Kalish, therefore, is the sole appellant.

We also note that Mr. Kalish’s notice of appeal does not designate the order
dismissing the state court judges, which was filed March 20, 1998. See
R., Doc. 40 (“Notice of Appeal of Order to Remand March 3rd, 1998, Notice of
Order of March 12, 1998 Dismissing IRS and Agents”). Accordingly, that order
is not at issue in this appeal. See Fed. R. App. P. 3(c) (requiring designation of
“the judgment, order, or part thereof appealed from”).

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a thorough examination of the record, that the district court committed no

reversible error in dismissing Mr. Kalish’s claims. We affirm for substantially

the same reasons expressed in the district court’s orders filed March 12 and

March 20, 1998.

We have no jurisdiction, however, to review the district court’s order of

remand. See 28 U.S.C. § 1447(d) (providing that, with a specified exception not

applicable here, “[a]n order remanding a case to the State court from which it was

removed is not reviewable on appeal or otherwise”); see also Flores v. Long , 110

F.3d 730, 733 (10th Cir. 1997) (holding that there is no appellate jurisdiction to

review a remand order, entered in a removed case, “based to a fair degree upon

the court’s finding that it lacked subject matter jurisdiction to hear the case”). 2

We AFFIRM the district court’s order of dismissal and DISMISS the appeal

from the district court’s order of remand. To the extent Mr. Kalish’s

2
We are aware that other circuit courts of appeals have determined that they
may exercise jurisdiction over a remand order triggered by the entry of a separate
determination which divested the court of subject-matter jurisdiction. See Trans
Penn Wax Corp. v. McCandless , 50 F.3d 217, 223 (3rd Cir. 1995); (“[A] remand
only falls under § 1447(c) if the removal itself was jurisdictionally improper, not
if the defect arose after removal.”); In re Amoco Petroleum Additives Co. , 964
F.2d 706, 708 (7th Cir. 1992) (holding that mandamus review is permitted “when
the district judge believes that removal was proper and that later developments
authorize remand”). In determining here that we may not review the remand
order, we follow the plain language of § 1447(d). Another panel of this court
may wish to revisit the issue in an appropriate case.

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supplemental filings may be construed as motions pending before this court, the

motions are DENIED. The mandate shall issue forthwith.

Entered for the Court

David M. Ebel
Circuit Judge

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