FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT June 24, 2021
_________________________________
Christopher M. Wolpert
Clerk of Court
KERRY KRUSKAL,
Plaintiff - Appellant,
No. 20-2177
v. (D.C. No. 1:16-CV-01075-JB-SCY)
(D. N.M)
JUAN MARTINEZ and DIANA
MARTINEZ,
Defendants - Appellees.
_________________________________
ORDER AND JUDGMENT *
_________________________________
Before BACHARACH, MURPHY, and CARSON, Circuit Judges.
_________________________________
This appeal grew out of a state action for breach of a contract to
purchase land. The state district court ruled for the buyer, concluding that
he could avoid payment by returning the land to the seller, Mr. Kerry
Kruskal. Mr. Kruskal appealed in state court, but the state supreme court
dismissed the appeal on the ground that he had begun the appeal too late.
*
We conclude that oral argument would not materially help us to
decide the appeal, so we have decided the appeal based on the record and
the parties’ briefs. See Fed. R. App. P. 34(a)(2)(C); 10th Cir. R. 34.1(G).
Our order and judgment does not constitute binding precedent except
under the doctrines of law of the case, res judicata, and collateral estoppel.
But the order and judgment may be cited for its persuasive value if
otherwise appropriate. See Fed. R. App. P. 32.1(a); 10th Cir. R. 32.1(A).
Mr. Kruskal argues that the ruling was incorrect. Rather than appeal
to the U.S. Supreme Court, however, he appealed to the federal district
court. The district court dismissed the appeal for lack of jurisdiction, and
Mr. Kruskal acknowledges that this ruling was correct.
Mr. Kruskal nonetheless filed two motions to reopen his time to
appeal the federal district court’s ruling on the ground that he had not
timely received notice of the ruling. See Fed. R. App. P. 4(a)(6)(A). The
district court denied the motions, and Mr. Kruskal wants to appeal the
denial of his second motion to reopen on the ground that he hadn’t timely
received the electronic copy of the district court’s order of dismissal. We
reject his argument for two reasons:
1. He admitted in federal district court that he had timely received
the electronic copy of the ruling.
2. More time to appeal to our court would not help him.
Mr. Kruskal repeatedly argued in district court that he had
experienced delays in receiving his electronic mail. The federal district
court rejected this argument, stating that it had checked and confirmed
proper delivery of the electronic copy of the ruling on the day of its entry
(November 30, 2016). Mr. Kruskal moved twice for reconsideration. In his
first motion to reconsider, he admitted electronic receipt of the ruling on
November 30, 2016, but said that he didn’t notice the ruling because of
delays in getting some of his other electronic mail:
2
R. vol. 1, at 82 (Doc. 11 at 3).
This admission is fatal. Mr. Kruskal could obtain reopening of the
time to appeal only if he hadn’t timely received the ruling on November
30, 2016, Fed. R. App. P. 4(a)(6)(A), and he admittedly received the
electronic copy on the day of its issuance.
Mr. Kruskal emphasizes that even if he received the ruling on
November 30, 2016, he did not open or read the email until later. But it
doesn’t matter when Mr. Kruskal read the email; we consider only when he
received the notice. See Fed. R. App. P. 4(a)(6)(A); Fed. R. Civ. P. 77(d)
and 5(b)(2)(E).
Mr. Kruskal also argues that he did not read the ruling promptly
because he was hospitalized in late December 2016. But Mr. Kruskal
received the ruling almost a month before he was hospitalized. R. vol. 1, at
81 (Doc. 11 at 2). So the district court correctly declined to reopen his
time to appeal.
3
Even if the district court had allowed him to reopen the time to
appeal, an appeal would do him little good. He admits that the federal
district court lacked jurisdiction to consider an appeal of a decision in
state court. He wants to correct his prior misstep by appealing the state
supreme court’s dismissal to the U.S. Supreme Court. But if the district
court were to reopen time to appeal, our inquiry would be limited to the
district court’s ruling that it lacked jurisdiction over an appeal from state
court. Despite this limitation, Mr. Kruskal admits that the federal district
court lacked jurisdiction. And neither the federal district court nor our
court could grant Mr. Kruskal additional time to appeal from state court to
the U.S. Supreme Court. So his effort to obtain additional time to appeal
the district court’s ruling is futile. Even if he were to obtain more time, he
would simply be appealing a federal district court ruling that he concedes
was correct.
We do not fault Mr. Kruskal: He is pro se and was understandably
confused by the complicated procedural status of this case. In his first
motion to reopen, he asked the federal district court if his appeal should go
to “Colorado” or to the “U.S. Supreme Court.” R. Vol. 1, at 74 (Doc. 9 at
3). The district court could not give legal advice. So the court
understandably ruled on the legal ground presented, concluding correctly
that Mr. Kruskal had failed to show satisfaction of the requirements to
reopen his time to appeal.
4
The federal district court’s ruling was correct. And Mr. Kruskal’s
challenges to that ruling were misguided from the outset: A federal court
cannot grant additional time for a litigant to appeal from a state court to
the U.S. Supreme Court.
We thus affirm the denial of Mr. Kruskal’s second motion to reopen
the time to appeal.
Entered for the Court
Robert E. Bacharach
Circuit Judge
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