F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
JUN 5 2000
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT
DONALD E. FYMBO,
Assignee of the Claims of
Class Representatives,
Plaintiff-Appellant,
and No. 99-1305
JAMES HOWE; LEE A. LINDSEY;
SANDRA KLINGER; GERRIT
WESTERVELT; LAWLOR T.
WESTERVELT, as Representatives
of a Class of All Other Similarly
Situated State Farm Insureds,
Plaintiffs,
v.
STATE FARM FIRE AND
CASUALTY COMPANY,
Defendant-Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
(D.C. No. 98-WY-2078-WD)
Submitted on the briefs:
Donald E. Fymbo, pro se.
Michael S. McCarthy, Jeanne M. Coleman, and Christopher P. Beall, Faegre &
Benson LLP, Denver, Colorado, for Defendant-Appellee.
Before KELLY , McKAY , and HENRY , Circuit Judges.
McKAY , Circuit Judge.
Plaintiff Donald E. Fymbo, a public insurance adjuster appearing pro se,
brought this class action suit against defendant State Farm Fire and Casualty
Company on behalf of himself as assignee of certain State Farm insureds and on
behalf of other similarly situated State Farm insureds. The magistrate judge
recommended that the complaint be dismissed because Mr. Fymbo is not an
attorney, his lack of competence was proven by his pleadings filed in the district
court, and he was not an adequate representative for the putative class under
Fed. R. Civ. P. 23(a)(4). See R. doc. 15. The district court adopted the
magistrate judge’s recommendation, dismissed the complaint, and imposed
sanctions of $500.00 under Fed. R. Civ. P. 11(b). See R. docs. 20, 25.
Mr. Fymbo appeals. We have jurisdiction under 28 U.S.C. § 1291. 1
1
After examining the briefs and appellate record, this panel has determined
(continued...)
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Issues not raised in plaintiff’s objections to the magistrate judge’s
recommendation are waived on appeal. See Smith v. Kitchen , 156 F.3d 1025,
1029 (10th Cir. 1997). Mr. Fymbo objected to the magistrate judge’s
determination that he was not an adequate class representative but not to the
dismissal of his assigned claims. See R. doc. 16. Therefore, the only issue before
this court is whether the district court erred in dismissing the complaint because
Mr. Fymbo was not capable of representing the putative class. We review the
dismissal of a complaint under Rule 12(b)(6) de novo. See Chemical Weapons
Working Group, Inc. v. United States Dep’t of the Army , 111 F.3d 1485, 1490
(10th Cir. 1997). We review the district court’s finding that Mr. Fymbo is not an
adequate class representative for abuse of discretion. See Pilots Against Illegal
Dues v. Air Line Pilots Ass’n , 938 F.2d 1123, 1134 (10th Cir. 1991).
We do not hesitate to affirm the district court’s decision that Mr. Fymbo
cannot adequately represent the putative class. Under Rule 23(a)(4), a class
representative must “fairly and adequately protect the interests of the class.”
A litigant may bring his own claims to federal court without counsel, but not the
claims of others. See 28 U.S.C. § 1654; see also 7A Wright, Miller & Kane,
1
(...continued)
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
-3-
Federal Practice and Procedure: Civil 2d § 1769.1 & n.12 (2d ed. 1986) (citing
cases for rule that “class representatives cannot appear pro se”). This is so
because the competence of a layman is “clearly too limited to allow him to risk
the rights of others.” Oxendine v. Williams , 509 F.2d 1405, 1407 (4th Cir. 1975).
AFFIRMED.
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