Edwards v. MacFarlane, 10th Cir. (1999)

F I L E D
UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT
United States Court of Appeals

Tenth Circuit
MAR 4 1999
PATRICK FISHER
Clerk
A.G. EDWARDS, JR.,

Plaintiff-Appellant,
v.
RICHARD MACFARLANE; E. LEE
HAWKES; DONALD RASMUSSEN;
RICHARD E. MALLORY, in their
personal and individual capacity only,
No. 98-4123
(D.C. No. 97-CV-177-S)
(D. Utah)
Defendants-Appellees.
ORDER AND JUDGMENT
Before ANDERSON , KELLY , and BRISCOE , Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
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.

Plaintiff A.G. Edwards Jr. brought this action in the district court alleging
a variety of tort and contract claims against defendants stemming from their
alleged violation of a 1989 settlement agreement involving the United States
Department of Agricultures Farmers Home Administration (FmHA), plaintiff
and others relating to certain property in Nevada. Defendants are all present
or former employees of the FmHA.
On October 6, 1997, defendant Mallory filed a motion to dismiss for failure
to timely serve the complaint pursuant to Fed. R. Civ. P. 4(m) and for lack of
personal jurisdiction. On that same day, the other defendants moved for summary
judgment on the bases that they were not parties to the settlement agreement; the
court lacked jurisdiction to hear a breach of contract claim against the United
States; any breach of contract claim was barred by the applicable statute of
limitations; and they were qualifiedly immune from the tort claims. Alternatively,
they contended the case should be dismissed because they were not properly
served. The magistrate judge granted plaintiff one extension of time to respond,
until November 15, 1997, but denied plaintiffs subsequent requests for
extensions. On May, 19, 1998, the district court denied plaintiffs objections to
the magistrate judges denial of his request for extensions of time to respond.
-2-
Although subsequent to the filing of defendants dispositive motions, plaintiff

filed a variety of his own motions and objections, he never responded to
defendants dispositive motions. On June 18, the district court granted
defendants motions on the merits on the record before it and dismissed plaintiffs
case. Plaintiff filed a timely notice of appeal.
Because plaintiff proceeds pro se, we construe his pleadings liberally.
See Haines v. Kerner , 404 U.S. 519, 520 (1972). Plaintiff first contends that the
district and magistrate judges assigned to his case were biased against him and
should have recused themselves. He did not move for their recusal in the district
court (nor did he raise his corollary argument that venue should be changed),
and we therefore will not consider the issue on appeal.
See Walker v. Mather
(In re Walker) , 959 F.2d 894, 896 (10th Cir. 1992). Moreover, we note that
plaintiffs generalized and conclusory allegations of bias are insufficient to show
a need for recusal or disciplinary action against the judges, which he also
requests. See Hinman v. Rogers , 831 F.2d 937, 939 (10th Cir. 1987).
Plaintiff also challenges a number of the district courts procedural
rulings--the grant of defendants and denial of his motions to extend time to
respond; his motion to disqualify counsel for the Department of Justice from
representing defendants; and the denial of his request for default judgment.
We review these rulings for an abuse of discretion,
-3-
see Buchanan v. Sherrill ,
51 F.3d 227, 228 (10th Cir. 1995) (time extensions);
McEwen v. City of
Norman , 926 F.2d 1539, 1550 (10th Cir. 1991) (disqualification of counsel);
Panis v. Mission Hills Bank, N.A.
, 60 F.3d 1486, 1494 (10th Cir. 1995)
(default judgments), and see no abuse of that discretion here.

Finally, though plaintiff filed no response to defendants dispositive
motions in the district court, he apparently challenges the district courts
dismissal of his action on the merits. We review a district courts grant of
summary judgment and dismissal for lack of personal jurisdiction de novo,
see Kaul v. Stephan , 83 F.3d 1208, 1212 (10th Cir. 1996);
FDIC v. Oaklawn
Apartments , 959 F.2d 170, 173 (10th Cir. 1992), and dismissal for lack of timely
service for an abuse of discretion,
see Espinoza v. United States , 52 F.3d 838, 840
(10th Cir. 1995). Even if we consider plaintiffs requests for judicial notice of
new adjudicative facts, we conclude that plaintiff has not identified any error in
the district courts ruling.
The judgment of the United States District Court for the District of Utah is
AFFIRMED. The mandate shall issue forthwith.
Entered for the Court
Stephen H. Anderson
Circuit Judge
-4-

Edwards v. MacFarlane, 10th Cir. (1999)

Uploaded by

Copyright:

Available Formats

Edwards v. MacFarlane, 10th Cir. (1999)

Uploaded by

Document Information

Original Description:

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Edwards v. MacFarlane, 10th Cir. (1999)

Uploaded by

Copyright:

Available Formats

F I L E D

UNITED STATES COURT OF APPEALS

United States Court of Appeals

A.G. EDWARDS, JR.,

ORDER AND JUDGMENT

Before ANDERSON , KELLY , and BRISCOE , Circuit Judges.

See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

Although subsequent to the filing of defendants dispositive motions, plaintiff

See Walker v. Mather

see Buchanan v. Sherrill ,

51 F.3d 227, 228 (10th Cir. 1995) (time extensions);

, 60 F.3d 1486, 1494 (10th Cir. 1995)

(default judgments), and see no abuse of that discretion here.

see Espinoza v. United States , 52 F.3d 838, 840

You might also like