Fymbo v. State Farm Fire & Casualty Co.

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.

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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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