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    The United States Court of Appeals for the Tenth Circuit affirmed the district court's dismissal without prejudice of the plaintiff's amended complaint. The plaintiff appealed the dismissal, arguing that it did not violate the local rule allowing 14 days to respond to a motion to dismiss. However, the appellate court found that the district court concluded the jurisdictional defects in the complaint were well-founded, providing an independent basis for dismissal regardless of the response timeline. As the plaintiff did not challenge the jurisdictional ruling, its arguments on appeal could not succeed. The appellate court affirmed the dismissal as to all defendants.

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    Filed: Patrick Fisher

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    The United States Court of Appeals for the Tenth Circuit affirmed the district court's dismissal without prejudice of the plaintiff's amended complaint. The plaintiff appealed the dismissal, arguing that it did not violate the local rule allowing 14 days to respond to a motion to dismiss. However, the appellate court found that the district court concluded the jurisdictional defects in the complaint were well-founded, providing an independent basis for dismissal regardless of the response timeline. As the plaintiff did not challenge the jurisdictional ruling, its arguments on appeal could not succeed. The appellate court affirmed the dismissal as to all defendants.

    Original Description:

    Filed: 2000-07-13 Precedential Status: Non-Precedential Docket: 99-2261

    Original Title

    J.O. Tobin, Ltd. v. Crown West Farms, 10th Cir. (2000)

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    The United States Court of Appeals for the Tenth Circuit affirmed the district court's dismissal without prejudice of the plaintiff's amended complaint. The plaintiff appealed the dismissal, arguing that it did not violate the local rule allowing 14 days to respond to a motion to dismiss. However, the appellate court found that the district court concluded the jurisdictional defects in the complaint were well-founded, providing an independent basis for dismissal regardless of the response timeline. As the plaintiff did not challenge the jurisdictional ruling, its arguments on appeal could not succeed. The appellate court affirmed the dismissal as to all defendants.

    Copyright:

    Public Domain
    Download as PDF or read online from Scribd
    Download as pdf
    21 views4 pages

    Filed: Patrick Fisher

    Uploaded by

    Scribd Government Docs
    The United States Court of Appeals for the Tenth Circuit affirmed the district court's dismissal without prejudice of the plaintiff's amended complaint. The plaintiff appealed the dismissal, arguing that it did not violate the local rule allowing 14 days to respond to a motion to dismiss. However, the appellate court found that the district court concluded the jurisdictional defects in the complaint were well-founded, providing an independent basis for dismissal regardless of the response timeline. As the plaintiff did not challenge the jurisdictional ruling, its arguments on appeal could not succeed. The appellate court affirmed the dismissal as to all defendants.

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    of 4

    F I L E D

    UNITED STATES COURT OF APPEALS

    United States Court of Appeals


    Tenth Circuit

    FOR THE TENTH CIRCUIT

    JUL 13 2000

    PATRICK FISHER
    Clerk

    J.O. TOBIN, LTD., a Horse Syndicate


    of the Commonwealth of Kentucky,
    Plaintiff-Appellant,
    v.
    CROWN WEST FARMS, INC.,
    a Canadian corporation; BRIAN
    KOZACK; LEROY BROWN;
    KAREN BROWN,

    No. 99-2261
    (D.C. No. CIV-97-1706)
    (D. N.M.)

    Defendants-Appellees.
    ORDER AND JUDGMENT

    Before BRORBY , ANDERSON , and MURPHY , Circuit Judges.

    After examining the briefs and appellate record, this panel has determined
    unanimously to grant the parties request for a decision on the briefs without oral
    argument. See Fed. R. App. P. 34(f); 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. 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.

    Plaintiff appeals from the


    complaint without prejudice. Pla

    district court s order dismissing its amended


    intiff contends that the dismissal was bas

    ed on

    its alleged failure to comply with a local rule allowing fourteen days to respond
    to a motion to dismiss served on it by defendants Crown West Farms, Inc. and
    Brian Kozak (Crown & Kozak). It asserts error due to the
    to consider the factors set out in

    district court s failure

    Murray v. Archambo , 132 F.3d 609, 611

    (10th Cir. 1998), and an unidentified conflict with the Federal Rules of Civil
    Procedure. Plaintiff alleges irreparable prejudice because the statute of
    limitations has now run on its claims against defendants.
    Plaintiff also contends that

    it did not violate the local rule in question,

    D.N.M. Local Rule 7.6, on the theory that the allowed time for response could
    have run from the magistrate judges ruling granting defendants Crown &
    Kozaks motion for extension of time to respond, despite the fact that the ruling
    acknowledged the motion to dismiss had been filed earlier and stated that the
    court deemed the motion to dismiss a timely response to the amended complaint.
    See Appellants App., tab 14. Based on its contention that its response to the
    motion was timely, plaintiff also argues that the

    district court was statutorily and

    constitutionally required to consider its response to the motion to dismiss before


    ruling. See Appellants Br. at 7. Finally, plaintiff argues that the

    -2-

    district court

    could not have dismissed its complaint as to defendants Lee Roy and Karen
    Brown because they did not join the motion to dismiss.
    All of these arguments are foreclosed by the

    district court s ruling granting

    defendants Crown & Kozaks motion to dismiss. The ruling concludes that
    plaintiffs response to the motion to dismiss was untimely and therefore in
    violation of the local rule in question. However, it also concludes, based on the

    district court s review of the motion and relevant law, that the jurisdictional
    defects complained of are well founded and that the motion is generally well
    taken. 2 Appellants App., tab 18, at 2. Because plaintiff does not challenge the

    district court s conclusion that the amended complaint was jurisdictionally


    defective, its arguments on appeal cannot prevail.

    See Murrell v. Shalala , 43 F.3d

    1388, 1390 (10th Cir. 1994). The courts jurisdictional ruling is an independent
    and alternative basis for dismissal which supports the courts dismissal of the
    amended complaint as to all defendants.

    The jurisdictional defects complained of included personal jurisdiction over


    defendants generally and under RICO specifically, improper venue, failure to
    state a claim under RICO, failure to allege required specific elements under
    RICO, and lack of standing.
    See Appellants App., tab 18, at 1-2.

    -3-

    The judgment of the United States District Court for the District of
    New Mexico is AFFIRMED.

    Entered for the Court

    Stephen H. Anderson
    Circuit Judge

    -4-

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