FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT September 7, 2016
_________________________________
Elisabeth A. Shumaker
Clerk of Court
R. KIRK MCDONALD,
Plaintiff - Appellant,
v. No. 15-1445
(D.C. No. 1:15-CV-00027-MSK-MEH)
NATIONWIDE TITLE CLEARING, INC.; (D. Colo.)
ERIKA LANCE, individually and in her
official capacity as employee/supervisor
for National Title Clearing Company,
Defendants - Appellees.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before HARTZ, HOLMES, and McHUGH, Circuit Judges.
_________________________________
Appellant R. Kirk McDonald, proceeding pro se, appeals the final judgment of
the district court dismissing his claim against Nationwide Title Clearing, Inc. and its
employee, Erika Lance (collectively, Nationwide). Exercising jurisdiction under
28 U.S.C. § 1291, we affirm.
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
I. Background
Mr. McDonald brought this case in January 2015 with a complaint captioned
as an “Ex Parte Motion for Show Cause.” R., Vol. 1 at 1. A month later he filed an
amended pleading at the direction of the court. It sought an order under Colo. Rev.
Stat. § 38-35-204 for Nationwide to show cause why an allegedly spurious lien it
created should not be declared invalid. According to Mr. McDonald, Nationwide
filed fraudulent lien documents that purported to assign his mortgage from JPMorgan
Chase Bank, N.A. to Citibank, N.A. The statute provides, in pertinent part:
Any person whose real or personal property is affected by a recorded or
filed lien or document that the person believes is a spurious lien or
spurious document may petition the district court in the county or city
and county in which the lien or document was recorded or filed or the
federal district court in Colorado for an order to show cause why the
lien or document should not be declared invalid.
Colo. Rev. Stat. § 38-35-204(1).
On motion by Nationwide, the district court dismissed the case for lack of
subject-matter jurisdiction, among other grounds. We agree with the district court.
II. Subject-Matter Jurisdiction
We construe Mr. McDonald’s pro se pleadings liberally. See Childs v. Miller,
713 F.3d 1262, 1264 (10th Cir. 2013). But pro se parties must follow the same rules
of procedure as other litigants, see Kay v. Bemis, 500 F.3d 1214, 1218 (10th Cir.
2007), and we will not supply additional factual allegations or construct legal
theories on their behalf, see Smith v. United States, 561 F.3d 1090, 1096 (10th Cir.
2009). We review de novo a dismissal for lack of subject-matter jurisdiction. See
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Radil v. Sanborn W. Camps, Inc., 384 F.3d 1220, 1224 (10th Cir. 2004). “The
burden of establishing subject-matter jurisdiction is on the party asserting
jurisdiction.” Montoya v. Chao, 296 F.3d 952, 955 (10th Cir. 2002).
“[F]ederal courts are courts of limited jurisdiction and require both
constitutional and statutory authority in order to adjudicate a case.” Estate of
Harshman v. Jackson Hole Mountain Resort Corp., 379 F.3d 1161, 1164 (10th Cir.
2004). Mr. McDonald’s complaint cites Colo. Rev. Stat. § 38-35-204 and 28 U.S.C.
§ 1367 as bases for the court’s jurisdiction. Neither suffices.
Although Colo. Rev. Stat. § 38-35-204 permits a proceeding to be brought in
federal court under that statute, the state statute itself cannot provide the basis for
federal jurisdiction. See Estate of Harshman, 379 F.3d at 1164 n.1 (“Federal
jurisdiction is limited by Article III . . . [and] also by congressional power to create
federal courts and invest them with jurisdiction.”). Nor is there supplemental
jurisdiction under 28 U.S.C. § 1367, which requires an anchor claim over which the
court has or had original jurisdiction. See id. “District courts do not otherwise have
jurisdiction to hear pendent state law claims but for their intertwinement with claims
over which they have original jurisdiction.” Estate of Harshman, 379 F.3d at 1164.
Mr. McDonald asserts only a single claim for relief based on a state statute. In that
circumstance, no supplemental jurisdiction can exist.
Although not set forth in his complaint, Mr. McDonald makes two additional
arguments for subject-matter jurisdiction. First, he argues there is federal question
jurisdiction under 28 U.S.C. § 1331. “[F]ederal jurisdiction demands not only a
3
contested federal issue, but a substantial one, indicating a serious federal interest in
claiming the advantages thought to be inherent in a federal forum.” Nicodemus v.
Union Pac. Corp., 440 F.3d 1227, 1232 (10th Cir. 2006) (internal quotation marks
omitted). Here, there is no federal question because Mr. McDonald’s claim is based
entirely on a state statute and state foreclosure proceedings.
Second, Mr. McDonald argues there is diversity jurisdiction under 28 U.S.C.
§ 1332. Diversity jurisdiction requires a party to “show that complete diversity of
citizenship exists between the parties and that the amount in controversy exceeds
$75,000.” Radil, 384 F.3d at 1225. Mr. McDonald has properly alleged that the
adverse parties were citizens of different states, but he has not adequately alleged the
necessary amount in controversy. The only relief requested in the complaint is an
order for Nationwide to appear in district court to show cause why allegedly spurious
lien documents (purportedly transferring the mortgage on Mr. McDonald’s property
from one bank to another) should not be declared invalid. He has not alleged any
monetary damages from the alleged transfer or demonstrated the potential to recover
over $75,000 on his claims. As said by the magistrate judge, whose recommendation
was adopted by the district court:
The alleged spurious lien was placed on [Mr. McDonald’s] property
before Citibank foreclosed on the property, and [he] offers no facts
showing that [Nationwide’s] actions created any additional
encumbrance on his property. The assignment recorded by
[Nationwide] on April 26, 2012, merely transferred the existing
mortgage on [Mr. McDonald’s] property from Chase to Citibank and
[he] has not demonstrated any monetary damages as a result of this
transfer.
4
R., Vol. 1 at 1134. “Although allegations in the complaint need not be specific or
technical in nature, sufficient facts must be alleged to convince the district court that
recoverable damages will bear a reasonable relation to the minimum jurisdictional
floor.” Adams v. Reliance Standard Life Ins. Co., 225 F.3d 1179, 1183 (10th Cir.
2000) (internal quotation marks omitted).1
III. Conclusion
The judgment is affirmed. Mr. McDonald’s motion to submit a supplemental
brief is granted.
Entered for the Court
Harris L Hartz
Circuit Judge
1
Insofar as Mr. McDonald may be claiming that the allegedly unlawful
transfer resulted in an improper foreclosure on his home mortgage, that claim
amounts to a challenge to the state-court foreclosure action, which would be barred
by the Rooker-Feldman doctrine, see Rooker v. Fid. Tr. Co., 263 U.S. 413 (1923);
D.C. Court of Appeals v. Feldman, 460 U.S. 462 (1983), and which has not been
raised here. See McDonald v. J.P. Morgan Chase Bank, N.A., 2016 WL 4547605,
___ F. App’x ___ (10th Cir. Aug. 31, 2016) (rejecting Mr. McDonald’s challenges to
the foreclosure proceedings).
5