Pine Tree Capital, LLC; Elk Mountain, Inc.; Bear Creek Trail, LLC; Bear Trail, LLC v. BOKF, N.A., d/b/a Bank of Texas, an Oklahoma banking corporation

UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
_________________________________
PINE TREE CAPITAL, LLC; ELK
MOUNTAIN, INC.; BEAR CREEK
TRAIL, LLC; BEAR TRAIL, LLC,
Plaintiffs - Appellants,
v.
BOKF, N.A., d/b/a Bank of Texas, an
Oklahoma banking corporation; THOMAS
MCCLINTOCK, individually,
Defendants - Appellees.
No. 20-8058
(D.C. No. 2:20-CV-00145-SWS)
(D. Wyo.)
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before TYMKOVICH, Chief Judge, LUCERO, Senior Circuit Judge, and
MATHESON, Circuit Judge.
_________________________________
This appeal arises from Plaintiff entities’ request for injunctive relief from
enforcement of a Texas state court turnover order. The district court dismissed the
complaint, finding that it lacked specific personal jurisdiction and, in the alternative,
would decline jurisdiction under federal abstention doctrines. Plaintiffs appeal both
dismissal of their complaint and denial of their Rule 60(b) motion for relief from
judgment. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm for
* This order and judgment is not binding precedent, except under the doctrines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.
FILED
United States Court of Appeals
Tenth Circuit
October 4, 2021
Christopher M. Wolpert
Clerk of Court
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substantially the same reasons as given by the district court. Because the standard of
review on appeal to us is de novo, we amplify briefly.
Plaintiffs are a set of Wyoming and Delaware corporate entities all ultimately
owned by Marvin Keith. Beginning in 2019, Defendant Bank of Texas (“the Bank”)
began judicial process in Texas to collect on a foreclosure deficiency judgment it
obtained against Keith in 2009. At the Bank’s request, a Texas state court issued a
pair of turnover orders authorizing the Bank, through its receiver Defendant Thomas
McClintock, to seize and sell the leviable assets of both Keith and Plaintiff entities.
Subsequently, Plaintiff entities filed the instant action in Wyoming state court,
seeking injunctive relief from enforcement of the Texas turnover orders. Plaintiffs
argued that the orders: (1) were entered without personal jurisdiction; (2) violated
various provisions of Texas law; and (3) resulted from the Bank’s alleged abuse of
process, among other purported deficiencies. The Bank and McClintock removed the
case to federal district court pursuant to 28 U.S.C. § 1441, which dismissed for lack
of personal jurisdiction and, in the alternative, based on abstention doctrines
established by Younger v. Harris, 401 U.S. 37 (1971), and Colorado River Water
Conservation Dist. v. United States, 424 U.S. 800 (1976).
We review dismissal for want of jurisdiction de novo. Old Republic Ins. Co.
v. Cont’l Motors, Inc., 877 F.3d 895, 903 (10th Cir. 2017). Federal courts apply
forum state law to determine whether personal jurisdiction exists in diversity cases.
Fed. R. Civ. P. 4(k)(1)(A). Wyoming law extends personal jurisdiction to the
constitutional limit prescribed by the Due Process Clause. Wyo. Stat. Ann. § 5-1-107
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(2020). “[T]o exercise jurisdiction in harmony with due process, defendants must
have ‘minimum contacts’ with the forum state, such that having to defend a lawsuit
there would not ‘offend traditional notions of fair play and substantial justice.’”
Dudnikov v. Chalk & Vermilion Fine Arts, Inc., 514 F.3d 1063, 1070 (10th Cir.
2008) (quoting Int’l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945)). At the
motion to dismiss stage, Plaintiffs “bear the burden of establishing personal
jurisdiction,” but can satisfy this burden by making “a prima facie showing” of
minimum contacts. Id. at 1069-70.
The district court was correct in finding that it lacked personal jurisdiction.
Plaintiffs failed to allege that any of the Bank’s efforts to enforce the Texas turnover
orders took place in or were directed at Wyoming. Rather, the only link between
Defendants’ conduct and Wyoming is the fact that Plaintiff entities are incorporated,
organized, or have assets in Wyoming. These ties do not satisfy the minimum
contacts standard. See Walden v. Fiore, 571 U.S. 277, 285 (2014) (“[T]he plaintiff
cannot be the only link between the defendant and the forum. Rather, it is the
defendant’s conduct that must form the necessary connection with the forum State
that is the basis for its jurisdiction over him.”).
In the alternative, Plaintiffs assert theories of in rem and quasi in rem
jurisdiction. The district court was correct to reject both. In rem jurisdiction does
not exist because the complaint did not ask the district court to adjudicate the rights
of all persons in Plaintiffs’ assets. See Tooele Cnty. v. United States, 820 F.3d 1183,
1188 (10th Cir. 2016). Quasi in rem jurisdiction fails because it requires
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substantially the same minimum contacts discussed above. See Shaffer v. Heitner,
433 U.S. 186, 207 (1977). Thus, the district court correctly concluded that it lacked
any basis to exercise jurisdiction over the instant action.1
Finally, Plaintiff entities contest the district court’s denial of their motion for
relief from judgement on the basis of “newly discovered evidence,” pursuant to Fed.
R. Civ. P. 60(b)(2). We review a district court’s decisions under Rule 60(b) for
abuse of discretion. Wright ex rel. Tr. Co. of Kansas v. Abbott Lab’ys., Inc., 259
F.3d 1226, 1235 (10th Cir. 2001).
In their motion, Plaintiffs raised evidence that the Bank, through McClintock,
filed documents asserting ownership of Plaintiff entities in Wyoming bankruptcy
court proceedings, contending that these filings establish minimum contacts between
Defendants and Wyoming. There is no dispute that these filings were made only
after entry of the district court’s dismissal judgment and thus do not constitute
“newly discovered evidence” within the meaning of Rule 60(b)(2). See Wolfgang v.
Mid-Am. Motorsports, Inc., 111 F.3d 1515, 1530 (10th Cir. 1997) (“[N]ewly
discovered evidence must have been in existence at the time of trial . . . .”). Plaintiff
entities argue instead that their evidence should be considered because it establishes
facts that existed before the district court issued its dismissal judgment. This
assertion disregards that the facts at issue are when and to what extent the Bank acted
in Wyoming. Because the bankruptcy filings were made after the district court
1 Because the district court lacked jurisdiction, we decline to reach the district
court’s alternative bases for dismissal grounded in federal abstention doctrines.
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entered judgment, the fact of the Bank’s involvement in the bankruptcy proceedings
could not have existed at the time of judgment. Plaintiffs have therefore failed to
demonstrate that the district court’s conclusion was an abuse of discretion.
Accordingly, the judgment of the district court is AFFIRMED.
Entered for the Court
Carlos F. Lucero
Senior Circuit Judge
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