Date: 01-09-2019

Case Style:

Case Number: 18-1122

Judge: Harris L. Hartz

Court: United States Court of Appeals for the Tenth Circuit on appeal from the District of Colorado (Denver County)

Plaintiff's Attorney: Pro Se

Defendant's Attorney:

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This case arises from plaintiff Gilbert T. Tso�s dissatisfaction with the
child-support obligation established in his Illinois divorce from his ex-wife, Rebecca
Murray, and with the procedures used to establish and enforce that obligation. After
Murray obtained an Illinois court order requiring Tso to pay ongoing child support
and arrearages, and registered the order in Colorado state court, Tso brought this
federal civil-rights action in the District of Colorado. In his Second Amended
Complaint (the Complaint) he sued Murray, her parents, her Colorado and Illinois
legal counsel, a court-appointed psychologist, and various Colorado and Denver
government entities.
* 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
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The district court dismissed all of Tso�s claims. He challenges that dismissal,
along with the district court�s orders denying various motions he filed. Liberally
construing his pro se filings, but without serving as his advocate, see James v.
Wadas, 724 F.3d 1312, 1315 (10th Cir. 2013), we affirm the district court�s dismissal
of Tso�s claims and the challenged orders.
I. BACKGROUND
In November 2012 an Illinois district court entered a judgment dissolving
Tso�s marriage to Murray. The Illinois court designated Tso the �non-primary
caregiver,� and assigned him a �Duty of Support,� R. Vol. 5 at 56, � 117 (internal
quotation marks omitted); id. at 36, � 66 (internal quotation marks omitted), but
deferred the establishment of a child-support order.
By June 2013 Tso, Murray, and their minor child had moved to Colorado. Tso
filed several motions in the Denver District Court to establish a child-support order.
He alleges these were unsuccessful because the Colorado court deferred to the
Illinois district court concerning child support. The Illinois district court eventually
entered a support order that imputed income to Tso under Illinois law and required
him to pay arrearages of approximately $17,500. An Illinois appellate court later
affirmed the Illinois district court�s exercise of jurisdiction over the child-support
issue. In 2015 the Denver District Court granted a motion to register and enforce the
Illinois child-support order in Colorado.
Tso filed this action in October 2016. The Complaint seeks recovery from the
defendants under a variety of theories. It raises five claims: (1) �[Fifth] Amendment
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Violations from the Public Taking of Property Without Just Compensation,� id. at 38;
(2) �Civil Violations of 18 U.S.C. � 1962(c)� (part of the Racketeer Influenced and
Corrupt Organizations Act, or RICO, see 18 U.S.C. �� 1961-1968), id. at 41;
(3) �Civil Violations of 18 U.S.C. � 1962(d)� (also part of RICO), id. at 69; (4) �14th
Amendment [Equal Protection] Violation of [Uniform Interstate Family Support Act]
� 605(b)(2) and [Colo. Rev. Stat.] �� 14-5-607 (42 U.S.C. �1983),� id. at 72; and
(5) a claim seeking a declaration that �[Colo. Rev. Stat.] � 14-10-124 is
Unconstitutional,� id. at 75.
II. DISCUSSION
1. Rooker-Feldman Doctrine
The district court determined it lacked jurisdiction over Tso�s civil RICO
claims under the Rooker-Feldman doctrine. See Rooker v. Fid. Trust Co., 263 U.S.
413 (1923); D.C. Ct. App. v. Feldman, 460 U.S. 462 (1983). The Rooker-Feldman
doctrine implicates the subject-matter jurisdiction of the federal courts. See Lance v.
Coffman, 549 U.S. 437, 439 n.* (2007) (per curiam) (�Rooker�Feldman concerns a
district court�s subject-matter jurisdiction . . . .�). We therefore address it first. See
Steel Co. v. Citizens for a Better Env�t, 523 U.S. 83, 94 (1998) (jurisdiction must be
determined before resolving merits).
We review de novo the district court�s dismissal of claims under the
Rooker-Feldman doctrine. See Campbell v. City of Spencer, 682 F.3d 1278, 1281
(10th Cir. 2012). The doctrine �bars the lower federal courts from engaging in
appellate review of state-court judgments.� Id. at 1279-80. That appellate authority
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is reserved for the Supreme Court. See id. at 1281. Our de novo review persuades us
that Tso�s Fifth Amendment, Fourteenth Amendment, and RICO claims all are
subject to dismissal under Rooker-Feldman because (with one insignificant
exception) the harms for which he seeks relief in these claims all result from
state-court judgments. Although the district court did not dismiss all these claims
under Rooker-Feldman, we exercise our discretion to affirm its dismissal on
alternative grounds. See GF Gaming Corp. v. City of Black Hawk, 405 F.3d 876, 882
(10th Cir. 2005) (�This court can affirm the district court�s dismissal on any grounds
sufficiently supported by the record.�).
The Supreme Court has explained that Rooker-Feldman �is confined to
cases . . . brought by state-court losers complaining of injuries caused by state-court
judgments rendered before the district court proceedings commenced and inviting
district court review and rejection of those judgments.� Exxon Mobil Corp. v. Saudi
Basic Indus. Corp., 544 U.S. 280, 284 (2005). �In other words, an element of the
claim must be that the state court wrongfully entered its judgment.� Campbell,
682 F.3d at 1283. Tso�s Complaint seeks relief from alleged harms flowing from
�acts of the state court.� Campbell, 682 F.3d at 1285. That is, �the allegedly
wrongful act that caused damage was the state-court order itself,� and his claims
�required a determination of the bona fides of the prior state-court judgment,� id. at
1284. Though he complains of various acts taken by the defendants, whether through
a RICO �conspiracy� or denial of just compensation, the only harms alleged involved
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deprivations that resulted from the state courts� orders. His claims are therefore
barred by Rooker-Feldman.1
2. Constitutionality of Colo. Rev. Stat. � 14-10-124
The magistrate judge recommended that the Complaint�s facial challenge to
Colo. Rev. Stat. � 14-10-124 be dismissed, both because it was �bare, conclusory,
and littered with legal conclusions masquerading as factual allegations,� R., Vol. 7 at
297, and because it was barred by Rooker-Feldman. In his amended objections Tso
responded with a single sentence: �Your Plaintiff respectfully objects to the finding
that this claim is barred by the Rooker-Feldman doctrine, and states his challenge of
C.R.S. � 14-10-124 is strictly a facial challenge.� Id. at 401. The district court
concluded he had �failed to articulate a substantial and principled reason for this
1 In his opening brief Tso does allude to one harm that potentially fell
outside the Rooker-Feldman doctrine. He argues �that his RICO injuries were
proximately due to the adverse impact on cashflow accrued directly from the cost of
mitigating and defending against the RICO defendants� schemes,� Aplt. Opening Br.
at 33-34, including �the cost of litigation� that resulted in losses related to his Illinois
real property, id. at 36. Adverse impacts on cashflow that result from enforcement of
an allegedly unlawful court order are of course incidents of that order, and hence
subject to Rooker-Feldman. See Campbell, 682 F.3d at 1285 (imposition of bond and
forfeiture of horses were acts of state court for Rooker-Feldman purposes). But the
Complaint also alleges that Tso�s litigation expenses were increased because the
number of pleadings the defendants filed in his Illinois litigation was excessive and
their expert witnesses were unqualified. To state a claim, however, the Complaint
must �contain sufficient factual matter to state a claim to relief that is plausible on its
face.� Acosta v. Jani-King of Okla., Inc., 905 F.3d 1156, 1158 (10th Cir. 2018)
(ellipsis and internal quotation marks omitted). The allegations of the Complaint
about litigation expenses do not meet that standard. They are conclusory; they do not
adequately support any of Tso�s claims, and do not prevent the dismissal of his
Complaint.
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Court to conclude that [the magistrate judge�s] recommendation on this claim is
erroneous or without a sound legal basis.� Id., Vol. 7 at 953.
We question the correctness of the district court�s Rooker-Feldman ruling on
this claim. See Feldman, 460 U.S. at 487 (the doctrine did not bar a challenge to the
constitutionality of a court rule). But we need not decide the issue because Tso has
not challenged the district court�s conclusion that he failed to adequately object to the
magistrate judge�s recommendation that the claim be dismissed under Rooker-
Feldman. By failing to adequately object, he forfeited his appellate challenge to the
dismissal of this claim. See Salazar v. Butterball, LLC, 644 F.3d 1130, 1143
(10th Cir. 2011) (to preserve issues for appellate review, �[a] party�s objections to a
magistrate judge�s report and recommendation must be both timely and specific�
(internal quotation marks omitted)); see also Havens v. Colo. Dep�t of Corrs.,
897 F.3d 1250, 1261 (10th Cir. 2018) (this court has no duty to consider waived
arguments in favor of subject-matter jurisdiction). We therefore affirm the dismissal
of this claim.
3. Motions
Tso also challenges the district court�s denial of his motions seeking sanctions
against certain defendants under Fed. R. Civ. P. 11(c), to set aside the district court�s
stay of discovery, and to amend or supplement his Complaint. We lack jurisdiction
to review the orders denying his motions to set aside the stay of discovery, which
were entered by a magistrate judge but not appealed to the district court. See SEC v.
Merrill Scott & Assoc., Ltd., 600 F.3d 1262, 1269 (10th Cir. 2010) (interlocutory
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orders by magistrate judge must first be appealed to the district court). We generally
review the remaining denials for an abuse of discretion. See Brown v. Eppler,
725 F.3d 1221, 1228 n.3 (10th Cir. 2013) (Rule 11 sanctions); Cohen v. Longshore,
621 F.3d 1311, 1313 (10th Cir. 2010) (motion to amend complaint); Duncan v. Mgr.,
Dep�t of Safety, City & Cty. of Denver, 397 F.3d 1300, 1315 (10th Cir. 2005) (motion
to supplement complaint). To the extent the district court determined that granting
leave to amend the Complaint would have been futile, however, our review is de
novo. See Cohen, 621 F.3d at 1314-15. Our review persuades us the district court
did not abuse its discretion in denying Tso�s motions, and that it correctly determined
it would have been futile to amend the complaint. We therefore affirm the denial of
his motions.

Outcome: We affirm the district court�s dismissal and its denial of the challenged
motions. Tso�s Motion for Leave to Take Judicial Notice is denied.

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