FILED
United States Court of Appeals
Tenth Circuit
July 16, 2009
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
FOR THE TENTH CIRCUIT
SAMUEL K. LIPARI,
Plaintiff-Appellant,
v. Nos. 08-3287, 08-3338 & 08-3345
(D.C. No. 2:07-CV-02146-CM-DJW)
US BANCORP NA; US BANK, NA, (D. Kan.)
Defendants-Appellees.
ORDER AND JUDGMENT *
Before O’BRIEN, Circuit Judge, BRORBY, Senior Circuit Judge, and
GORSUCH, Circuit Judge.
These consolidated appeals arise out of Samuel Lipari’s most recent effort
to recover damages stemming from a failed business relationship with defendants
US Bank NA and US Bancorp NA. His prior effort, culminating in Med. Supply
Chain, Inc. v. Neoforma, Inc., 2009 WL 1090070 (10th Cir. 2009) (hereinafter,
the “Med. Supply Chain Litigation”), failed, and Mr. Lipari was prohibited from
*
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)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
future pro se filings in that case. Given the parties’ long familiarity with the facts
of the case, and having already outlined the essence of the parties’ dispute in our
prior decision, we dispense with any recitation of the facts. Mr. Lipari challenges
the district court’s dismissal of his latest lawsuit on jurisdictional and merits
grounds. Because he appears before us pro se, we review his challenges with
solicitude. See Van Deelen v. Johnson, 497 F.3d 1151, 1153 n. 1 (10th Cir.
2007). Even so, we conclude that none of his arguments is meritorious.
Jurisdictional challenges. Mr. Lipari argues that the district court
improperly asserted jurisdiction over this case during times when appeals in the
Med. Supply Chain Litigation were pending in this court. There is nothing
improper about the district court’s actions, however. The two lawsuits were
distinct cases. The district court could entertain one while we entertained the
other. Relatedly, Mr. Lipari asserts the defendants should be estopped from
asserting that this case and the Med. Supply Chain Litigation are distinct matters
because they had previously argued for dismissal of this case under principles of
res judicata. This argument, however, has been waived because Mr. Lipari did
not raise it in the district court, see Stewart v. U.S. Dept. of Interior, 554 F.3d
1236, 1245 n. 1 (10th Cir. 2009), and in any event it lacks merit: the district
court did not accept the defendants’ res judicata argument for dismissal, and so
the requirements for estoppel are not present, see Eastman v. Union Pacific R.R.
Co., 493 F.3d 1151, 1156 (10th Cir. 2007). On a different note, Mr. Lipari urges
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us to hold that complete diversity did not exist in the Med. Supply Chain
Litigation. But, again, that is a different case and any jurisdictional defect that
might or might not have existed in that case is of no moment to this lawsuit. Mr.
Lipari also argues that the district court violated the “first to file” rule by
asserting jurisdiction in this case over matters that were first presented in the
Med. Supply Chain Litigation. But this rule has no application here. It pertains
when two district courts have jurisdiction over the same controversy, affording
deference to the first filed lawsuit. It does not pertain to distinct controversies
arising seriatim. Finally, we deny Mr. Lipari’s motion to have this appeal
transferred to the United States Court of Appeals for the Eighth Circuit pursuant
to 28 U.S.C. § 1631 because that motion rests wholly on the erroneous premise
that the district court in this case lacked jurisdiction to adjudicate.
Merits challenges. Mr. Lipari contests the district court’s dismissal of two
of his claims under Fed. R. Civ. P. Rule 12(b)(6). After careful review, and for
substantially the same reasons given by the district court, we affirm. “To survive
a motion to dismiss, a complaint must contain sufficient factual matter, accepted
as true, to ‘state a claim for relief that is plausible on its face.’” Ashcroft v.
Iqbal, 129 S.Ct. 1937, 1949 (2009) (quoting Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 570 (2007)). Mr. Lipari’s complaint does not meet this standard.
Mr. Lipari next asserts that the district court erred by entertaining successive
motions to dismiss under Fed. R. Civ. P. Rule 12(b)(6), in violation of Fed. R.
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Civ. P. Rule 12(g)(2). But Rule 12(g)(2) specifically provides that a party may
file a motion for failure to state a claim under Rule 12(c), and the district court
permissibly treated the defendants’ second Rule 12(b)(6) motion as though it had
been styled under Rule 12(c). See Jacobsen v. Deseret Book Co., 287 F.3d 936,
941 n.2 (10th Cir. 2002). Mr. Lipari also argues that the district judge and
magistrate judge erred by failing to recuse themselves after he moved for their
recusal under 28 U.S.C. § 144. But his only asserted ground for recusal rests on a
series of rulings decided against him, and we have long held that “adverse rulings
cannot in themselves form the appropriate grounds for disqualification.” Green v.
Branson, 108 F.3d 1296, 1305 (10th Cir. 1997) (internal quotation marks
omitted). We do not reach Mr. Lipari’s remaining merits arguments. Two of his
challenges are directed at rulings the district court never made. And three are
challenges to discovery orders entered by the court, but any such challenge is now
moot given that, as a matter of law, Mr. Lipari has no viable claim to pursue.
The judgment of the district court is affirmed, and Mr. Lipari’s motion to
transfer this appeal under 28 U.S.C. § 1631 is denied.
Entered for the Court
Neil M. Gorsuch
Circuit Judge
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