Brown v. Town of Valley Brook

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT August 3, 2020
_________________________________
Christopher M. Wolpert
Clerk of Court
HAROLD W. BROWN,

Plaintiff - Appellant,

v. No. 19-6172
(D.C. No. 5:19-CV-00169-SLP)
THE TOWN OF VALLEY BROOK; (W.D. Okla.)
MICHAEL STAMP, Police Chief of the
Town of Valley Brook; JOHN DOES,
Officers 1 and 2,

Defendants - Appellees.
_________________________________

ORDER AND JUDGMENT *
_________________________________

Before BRISCOE, MATHESON, and CARSON, Circuit Judges.
_________________________________

Harold W. Brown appeals the district court’s denial of his motion to file an

amended complaint. The court denied the motion as moot and futile because (1) it

had dismissed all remaining pending claims without objection from Mr. Brown and

(2) his proposed amended complaint asserted only state-law claims. Exercising

jurisdiction under 28 U.S.C. § 1291, we affirm.

*
After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
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 This order and judgment is not binding precedent,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. Brown sued in Oklahoma state court, alleging constitutional violations

arising out of a traffic stop. He invoked 42 U.S.C. § 1983 and named as defendants

the Town of Valley Brook; its Police Chief, Michael Stamp; and two unknown John

Doe officers (Does 1 and 2). The complaint asserted constitutional violations against

these defendants in Counts I through IV. Count V, titled “Notice of Tort Claim,”

stated, “Plaintiff reserves the right to add additional claims against all Defendants

named herein pending the expiration of the ninety (90) day [state-law] waiting

period.” Aplt. App. at 21.

Mr. Brown served only the Town and Chief Stamp. They removed the suit to

federal court and moved to dismiss all claims against them. The district court

granted their motion. That ruling is not before us.

On September 9, 2019, the district court directed Mr. Brown to show cause

why Does 1 and 2 should not be dismissed for his failure to effect timely service

within 90 days of the date of removal as required by Federal Rule of Civil Procedure

4(m). The court noted the case was removed on February 22, 2019. Mr. Brown

requested an extension of time to respond, explaining that he was preparing a

proposed amended complaint to assert state-law claims. He also said he intended to

seek a remand to state court because “no federal questions remain to be resolved in

the matter.” Aplt. App. at 134. He did not address his failure to serve Does 1 and 2.

After the district court granted Mr. Brown’s request for an extension of time,

he moved to amend his complaint to assert only state-law claims. He also moved to

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remand the case to state court, urging the court not to exercise supplemental

jurisdiction over his proposed state-law claims. He argued for remand because,

absent federal claims, the district court lacked original jurisdiction. He still did not

address his failure to serve Does 1 and 2, nor did he attempt to show cause why his

claims against them should not be dismissed for lack of proper service.

The district court dismissed the claims against Does 1 and 2 under Rule 4(m)

for lack of service. It explained that after dismissing the Town and Chief Stamp, it

“continued to have subject-matter jurisdiction over” the § 1983 claims against the

Does. Id. at 175. The court issued the show-cause order because more than six

months had passed since the case was removed to federal court and Mr. Brown had

not served them. It recognized the proposed amended complaint identified Does 1

and 2, but noted that neither the proposed amendments nor the motion for remand

explained why Mr. Brown failed to identify and serve the Does within the Rule 4(m)

time period. As required by Rule 4, 1 the court considered granting a mandatory

extension of time to allow Mr. Brown to effect service, but he failed to show good

cause because he offered no explanation for the service defect. The court also

considered granting him a permissive extension, but concluded that it was

unwarranted under the relevant factors.

1
Under circumstances not relevant here, or if a plaintiff shows good cause, a
court must grant a mandatory extension of time to effect service. See Fed. R. Civ. P.
(4)(i)(4), (m). A court also may grant a permissive extension if warranted by factors
such as a plaintiff’s pro se status, the complexity of the service requirements, the
danger of prejudice to the defendants, and the potential expiration of the statute of
limitations. See Espinoza v. United States, 52 F.3d 838, 840-42 (10th Cir. 1995).
3
 The district court thus denied Mr. Brown’s motion to amend his complaint as

moot, reasoning there were no longer any claims over which it had original

jurisdiction. It also determined that amendment would be futile because the court

lacked jurisdiction over the proposed amended complaint, which asserted only

state-law claims, and Mr. Brown did not ask the court to exercise supplemental

jurisdiction. Mr. Brown appealed the denial of his motion to amend the complaint. 2

II. DISCUSSION

A. Standard of Review

“Although we generally review for abuse of discretion a district court’s denial

of leave to amend a complaint, when this denial is based on a determination that

amendment would be futile, our review for abuse of discretion includes de novo

review of the legal basis for the finding of futility.” Cohen v. Longshore, 621 F.3d

1311, 1314 (10th Cir. 2010) (quotations omitted). “A proposed amendment is futile

if the complaint, as amended, would be subject to dismissal.” Bradley v. Val-Mejias,

379 F.3d 892, 901 (10th Cir. 2004) (quotations omitted). A proposed amendment is

subject to dismissal if the court lacks jurisdiction over the claims. See, e.g.,

Hutchinson v. Pfeil, 211 F.3d 515, 522-23 (10th Cir. 2000) (affirming denial of

2
Mr. Brown’s notice of appeal referenced the denial of both his motion to
amend and his motion to remand, but he advances no argument regarding the denial
of his motion to remand, and we do not consider it. See Bronson v. Swensen,
500 F.3d 1099, 1104 (10th Cir. 2007) (“[W]e routinely have declined to consider
arguments that are not raised, or are inadequately presented, in an appellant’s
opening brief.”).
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motion to amend as futile where proposed state-law claim was subject to dismissal

for lack of jurisdiction).

B. Analysis of Mr. Brown’s Arguments

Mr. Brown argues the district court should have granted his motion to amend

because it had (1) federal question jurisdiction under 28 U.S.C. § 1331 and

(2) supplemental jurisdiction under 28 U.S.C. § 1367.

1. Federal Question Jurisdiction

Mr. Brown suggests the district court should have granted leave to amend

because it had federal question jurisdiction over his § 1983 claims against Does 1 and

2. See Aplt. Br. at 6. The court did have jurisdiction over those claims until it

dismissed them under Rule 4(m) for lack of service. Mr. Brown never challenged

that ruling, nor did he address the lack of service in seeking to amend. He thus

waived any argument contesting the dismissal of his claims against the Does, see

WildEarth Guardians v. Nat’l Park Serv., 604 F.3d 1192, 1197 (10th Cir. 2010)

(“Failure to raise an issue in the district court generally constitutes waiver.”

(quotations omitted)), and therefore now cannot contend the court failed to exercise

its jurisdiction. This rendered the motion moot. It was futile to amend the complaint

because the proposed amendment asserted only state-law claims that, absent original

jurisdiction, were also subject to dismissal. See Hutchinson, 211 F.3d at 523.

2. Supplemental Jurisdiction

Mr. Brown argues the district court should have granted leave to amend

because it retained supplemental jurisdiction under 28 U.S.C. § 1367 over the state-

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law claims asserted in Count V of his complaint and the state-law claims asserted in

his proposed amended complaint. He offers five arguments. Each rests on the

premise that the district court should have exercised supplemental jurisdiction over

the state-law claims. We need not detail Mr. Brown’s arguments because they fail

for at least two reasons. 3

First, they rely on his supposition that Count V asserted claims that were

pending when the district court denied leave to amend. He therefore asserts the court

should have exercised supplemental jurisdiction over Count V and the state-law

claims alleged in the proposed amended complaint. But Mr. Brown waived this

argument by failing to raise it in the district court. Also, the district court repeatedly

stated that Count V did not assert a substantive claim for relief. Count V stated only

that Mr. Brown gave notice to the Town of an unidentified tort claim and that he

“reserve[d] the right to add additional claims against all Defendants named herein

pending the expiration of the ninety (90) day [state-law] waiting period.” Aplt. App.

at 21 (emphasis added). In response to the Town and Chief Stamp’s motion to

dismiss, Mr. Brown appeared to acknowledge these averments failed to give notice of

any claim to any defendant. He explained that he intended to amend his complaint

3
Mr. Brown contends (1) the Town and Chief Stamp’s motion to dismiss
tolled the time to file a responsive pleading to Count V; (2) Count V satisfies state
and federal pleading standards; (3) Count V asserts state-law tort claims that relate to
his federal claims; (4) the proposed state-law claims relate back to the date of the
motion to amend under the “tender rule”; and (5) the district court retained
supplemental jurisdiction over Count V.
6
“to add a governmental tort claim to address violations of the Oklahoma State

Constitution.” Id. at 83.

Because Count V was merely a placeholder and devoid of any claim, the

district court stated in its order dismissing the Town and Chief Stamp that the

complaint alleged “four causes of action,” id. at 117 (emphasis added), not five. 4

Mr. Brown did not object or otherwise attempt to alert the court to any claims he now

asserts were alleged in Count V. His failure to do so waived this issue. See

WildEarth Guardians, 604 F.3d at 1197. Apart from the waiver, Mr. Brown still fails

to specify what claims he intended to assert in Count V. He simply concedes “Count

V was premature,” Aplt. Br. at 3, and that it “alleged an alternative ground for relief

for the actions of [the Town] of Valley Brook, Michael Stamp, and the John Doe

Officers,” id. at 14. But he never identifies the alternative ground.

Second, Mr. Brown’s arguments all insist the district court should have

exercised supplemental jurisdiction over Count V and the state-law claims in his

proposed amended complaint, but he took the opposite position in the district court.

Before the district court dismissed the § 1983 claims against Does 1 and 2,

Mr. Brown argued (incorrectly) in his motion for remand that the court had dismissed

all claims over which it had original jurisdiction and thus “the Court should decline

to exercise supplemental jurisdiction under 28 U.S.C. § 1367(c)(3).” Aplt. App. at

4
The court similarly observed in its order dismissing Does 1 and 2 that the
complaint “asserted 42 U.S.C. § 1983 claims (and no other claims) against”
defendants. Aplt. App. at 174 (emphasis added).
7
157. He insisted “that a district court does not abuse its discretion when it declines to

exercise supplemental jurisdiction over a claim under 28 U.S.C. § 1367(c)(3) where it

has dismissed all claims over which it has original jurisdiction.” Id. (ellipsis and

quotations omitted). In response, the district court observed that Mr. Brown was “not

requesting the Court to exercise supplemental jurisdiction over” the state-law claims

in his proposed amended complaint. Id. at 177. On appeal, Mr. Brown switches

course and asserts the district court should have exercised supplemental jurisdiction.

The invited-error doctrine forecloses this contention.

“The invited-error doctrine precludes a party from arguing that the district

court erred in adopting a proposition that the party had urged the district court to

adopt.” ClearOne Commc’ns, Inc. v. Bowers, 643 F.3d 735, 771 (10th Cir. 2011)

(quotations omitted). The doctrine “is a form of waiver” predicated on “the

intentional relinquishment or abandonment of a known right.” Id. (quotations

omitted).

Mr. Brown urged the district court to decline to exercise supplemental

jurisdiction. Here he contends the district court should have exercised supplemental

jurisdiction. Mr. Brown invited any error. He may not now complain that the court

erred in adopting the approach he advocated.

* * * *

In sum, Mr. Brown’s arguments are either barred or waived. He fails to show

the district court abused its discretion in denying leave to amend.

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 III. CONCLUSION

We affirm the district court’s judgment.

Entered for the Court

Scott M. Matheson, Jr.
Circuit Judge

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