Lundahl v. Global E. LLC

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

FOR THE TENTH CIRCUIT March 25, 2016
_________________________________
Elisabeth A. Shumaker
Clerk of Court
MARTI LUNDAHL,

Plaintiff - Appellant,

and

HOLLIE TELFORD,

Plaintiff,

v. No. 15-8120
(D.C. No. 2:15-CV-00178-SWS)
GLOBAL E. LLC d/b/a PIONEER PARK (D. Wyo.)
MHC; LINCOLN COUNTY DISTRICT
JUDGE, a/k/a Nena James, in her official
capacity; CENTURYLINK PUBLIC
COMMUNICATIONS INC.; ANN
CLAYTON, individually; JUDY
CARRILLO, individually; MICHAEL
STULKEN, individually,

Defendants - Appellees.
_________________________________

ORDER AND JUDGMENT*
_________________________________

Before KELLY, HOLMES, and MORITZ, Circuit Judges.
_________________________________

*
After examining the appellant’s brief 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is not binding precedent, except under the doctrines of law of the case, res judicata,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. See
Fed. R. App. P. 32.1; 10th Cir. R. 32.1.
 Marti Lundahl appeals the district court’s dismissal of her complaint based on

co-plaintiff Hollie Telford’s failure to abide by certain filing restrictions.1 Because

we conclude the district court didn’t abuse its discretion, we affirm.

In 2014, the district court imposed filing restrictions on Holli Lundahl.

Specifically, the district court enjoined “Holli Lundahl (and all of her aliases,

including ‘Holli Telford’)” from proceeding as a plaintiff in the District of Wyoming

unless a Wyoming-licensed attorney represents her or she first receives permission to

proceed pro se. R. vol. 1, at 61-62 (footnote omitted). The district court specifically

listed “Marti Lundahl” as one of Holli Lundahl’s known aliases. R. vol. 1, at 61 n.1.

In its order, the court warned that if Holli Lundahl submitted a pro se complaint

without first obtaining permission to do so, it would summarily dismiss the

complaint.

In 2015, Marti Lundahl and Hollie Telford were listed as plaintiffs in a pro se

complaint filed in the District of Wyoming. The district court dismissed the

complaint, citing Holli Lundahl’s failure to obtain permission to proceed pro se as

required by its previous order. The court noted that its previous order applied to Holli

Lundahl if she proceeded under “some spelling variation of ‘Holli Telford’ or ‘Marti

Lundahl.’” R. vol. 1, at 54. The district court acknowledged that Holli Lundahl has a

sister named Marti Lundahl. Nevertheless, the court noted that it was “also apparent

1
Because Marti Lundahl proceeds pro se, we construe her brief liberally. See
Eldridge v. Berkebile, 791 F.3d 1239, 1243 n.4 (10th Cir. 2015). But we won’t act as
her advocate by formulating arguments or scouring the record on her behalf. See id.
2
Holli Lundahl simply uses her sister as a pawn in Holli’s vexatious litigation tactics”

and cited similar activities in a previous case in the same court. R. vol. 1, at 54 n.1.

Marti Lundahl appeals,2 arguing she isn’t bound by the district court’s

previous order imposing filing restrictions on Holli Lundahl because she wasn’t a

party to that case. We review for abuse of discretion a district court’s decision to

dismiss based on a party’s failure to comply with a court order. Gripe v. City of Enid,

312 F.3d 1184, 1188 (10th Cir. 2002).

An injunctive order binds a nonparty who is “in active concert or participation

with” a party and has actual notice of the order. Fed. R. Civ. P. 65(d)(2)(C). Such an

order binds a participating nonparty because if courts didn’t have the authority to do

so “the named parties could easily thwart the injunction by operating through others.”

ClearOne Commc’ns, Inc. v. Bowers, 651 F.3d 1200, 1215 (10th Cir. 2011) (quoting

Sec. & Exch. Comm’n v. Homa, 514 F.3d 661, 674 (7th Cir. 2008)). Accordingly, the

rule encompasses an alter ego or someone who aids or abets the named party. See

Reliance Ins. Co. v. Mast Constr. Co., 84 F.3d 372, 377 (10th Cir. 1996).

Here, Marti Lundahl correctly points out that she wasn’t a party to the action

in which the district court imposed filing restrictions on her sister. But if we presume,

as the district court did, that Holli Lundahl simply used Marti Lundahl’s name as her

alter ego, the injunctive order expressly applied to “Marti Lundahl” as one of Holli

2
This court dismissed Hollie Telford from this appeal for failing to comply
with filing restrictions we previously imposed on Holli Lundahl. See Johnson v.
Stock, 2005 WL 1349963, at *3-4 (10th Cir. 2005). We allowed the appeal to proceed
with Marti Lundahl as the sole appellant.
3
Lundahl’s known aliases. R. vol. 1, at 61 n.1. And even if we presume Marti Lundahl

genuinely participated, she aided her sister’s disobedience by jointly filing this suit as

a co-plaintiff before her sister received the district court’s permission to proceed pro

se.3 Under both alternatives, Marti Lundahl is bound by the district court’s injunctive

order, either as an alter ego or as an active participant aiding her sister. See Reliance,

84 F.3d at 377; Fed. R. Civ. P. 65(d)(2)(C). Therefore, the district court did not abuse

its discretion in dismissing the complaint, and we affirm the dismissal.4 We also deny

Marti Lundahl’s motion to proceed in forma pauperis on appeal.

Entered for the Court

Nancy L. Moritz
Circuit Judge

3
Marti Lundahl’s brief recounts that in filing this suit, “Plaintiffs sent to the
federal court . . . a petition to proceed pro se pursuant to a void contempt judgment
issued by Judge Skavdahl” along with the complaint and other documents. Aplt. Br.
at 4. Thus, Marti Lundahl had actual notice of the injunctive order as indicated by her
awareness that she, as one of the plaintiffs, sent the court her sister’s petition to
proceed pro se as required by the court’s order.
4
Marti Lundahl raises other issues unrelated to the district court’s dismissal
order, none of which were raised below. Generally, we don’t consider theories raised
for the first time on appeal, and because there’s no argument for plain error, we
decline to address these issues. See Martinez v. Angel Expl., LLC, 798 F.3d 968, 974
(10th Cir. 2015).
4