                                                              FILED
                                                  United States Court of Appeals
                     UNITED STATES COURT OF APPEALS       Tenth Circuit

                            FOR THE TENTH CIRCUIT                      December 3, 2012

                                                                      Elisabeth A. Shumaker
                                                                          Clerk of Court
DAVID M. BRAINARD; CATHERINE
A. BRAINARD,

             Plaintiffs-Appellants,

v.                                                         No. 12-1159
                                               (D.C. No. 1:11-CV-01140-PAB-BNB)
BAC HOME LOANS SERVICING, LP,                               (D. Colo.)

             Defendant-Appellee.


                            ORDER AND JUDGMENT*


Before KELLY, O’BRIEN, and MATHESON, Circuit Judges.


      Pro se Plaintiffs David M. Brainard and Catherine A. Brainard (collectively,

Brainards) appeal from the dismissal of their complaint for failure to state a claim.

They also complain about not being permitted to amend their complaint. They seek

to proceed on appeal without prepayment of fees. See 28 U.S.C. § 1915(a). We

exercise jurisdiction under 28 U.S.C. § 1291. We affirm the judgment and deny

leave to proceed without prepayment of fees.

*
      After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
                                     I.    Background

       Brainards’ complaint concerned the foreclosure sale of their home. The

complaint asserted they had filed a notice of objection to the foreclosure in a

Colorado state district court, demanding from defendant the original promissory note

and deed of trust, as well as the original endorsement thereof. Their objections were

not credited and therefore they allege the state court proceedings had not

“substantiate[d] Defendant’s claim of being the legal holder or owner of the debt.”

R. at 4.1 The complaint also charged the state district court as being “unable or

unwilling to regulate interstate commerce or to provide the same consumer protection

available under 15 U.S.C. 41, Section 1692f [sic].” Id. In their proposed amendment

to the complaint, Brainards specified various forms of relief they thought would be

appropriate, but provided no additional facts. Defendants moved to dismiss pursuant

to Fed. R. Civ. P. 12(b)(6), arguing Brainards failed to state a plausible claim for

relief and had not provided “a ‘short and plain statement’ of facts showing

entitlement to relief.” Id. at 49.

       The district court dismissed the complaint, characterizing it as “alleg[ing] that

defendant is proceeding with a foreclosure on Brainards’ property without having

sufficiently established a right to do so,” but “supply[ing] no supporting facts.” Id. at

94. It also denied leave to amend the complaint because “Brainards [sought] to


1
        Defendant has informed this court that defendant “BAC Home Loans
Servicing, LP merged with and into Bank of America, N.A. on July 1, 2011.” Aplee.
Br. at ii n.1.
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supplement their requests for injunctive relief but include[d] no additional facts.” Id.

at 95.

                                      II.    Discussion

         This court’s review of the dismissal order is de novo, “accepting as true all of

the well-pled factual allegations and asking whether it is plausible that the plaintiffs

are entitled to relief.” Coll v. First Am. Title Ins. Co., 642 F.3d 876, 886 (10th Cir.

2011) (internal quotation marks and brackets omitted). “To survive a [motion to

dismiss for failure to state a claim], a plaintiff must allege sufficient facts to make

her claim for relief plausible on its face. . . . If the allegations are so general that

they encompass a wide swath of conduct, much of it innocent, then the plaintiffs have

not nudged their claims across the line from conceivable to plausible.” Peterson v.

Grisham, 594 F.3d 723, 727 (10th Cir. 2010) (internal quotation marks and ellipsis

omitted).

         “We read pro se complaints more liberally than those composed by

lawyers. . . . Though we do not hold the pro se plaintiff to the standard of a trained

lawyer, we nonetheless rely on the plaintiff’s statement of his own cause of action.”

Firstenberg v. City of Santa Fe, 696 F.3d 1018, 1024 (10th Cir. 2012) (internal

quotation marks and italics omitted). Notwithstanding the liberal construction

afforded pro se filings, this court “will not supply additional factual allegations to

round out a plaintiff’s complaint or construct a legal theory on a plaintiff’s behalf.”

Smith v. United States, 561 F.3d 1090, 1096 (10th Cir. 2009) (internal quotation


                                            -3-
marks omitted). “[T]his court has repeatedly insisted that pro se parties follow the

same rules of procedure that govern other litigants.” Hall v. Witteman, 584 F.3d 859,

864 (10th Cir. 2009) (internal quotation marks omitted).

       Brainards first argue defendant is not a creditor as defined by the Fair Debt

Collection Practices Act. Relying on Miller v. Deutsche Bank National Trust Co.

(In re Miller), 666 F.3d 1255 (10th Cir. 2012), they claim entitlement to relief. But

their complaint alleges no facts to show their circumstances were similar to those

described in Miller, nor is the procedural posture of the cases similar. Miller was an

appeal from an order granting relief from the automatic bankruptcy stay, id. at 1258,

not from an order of dismissal for failure to state a claim. Miller does not help

Brainards.

       Next, Brainards argue their complaint was sufficient because it claimed

defendant did not provide original documents, despite their repeated requests for

them. In addition, they point to a state court order referring only to their initial

lender, not to this defendant. These arguments do not “show that the pleader is

entitled to relief,” Fed. R. Civ. P. 8(a)(2). Our independent review of the complaint

confirms the district court’s assessment that it fails to state a claim upon which relief

can be granted. Accordingly, dismissal under Rule 12(b)(6) was correct.

       Brainards also assert error in the district court’s refusal to grant them leave to

amend their complaint. “[W]e generally review for abuse of discretion a district

court’s denial of leave to amend a complaint.” Cohen v. Longshore, 621 F.3d 1311,


                                           -4-
1314 (10th Cir. 2010). Where leave was denied “based on a determination that

amendment would be futile, our review for abuse of discretion includes de novo

review of the legal basis for the finding of futility.” Id. (internal quotation marks

omitted). Consequently, we apply the de novo standard to ascertain whether the

proposed amended complaint could survive dismissal. See id. at 1314-15.

      The proposed amendment added no facts, but merely requested various forms

of relief. Based on our de novo review, we conclude the district court correctly

denied the proposed amendment because it would have been futile.

      Brainards further complain the district court allowed misstatements in

defendant’s motion to dismiss to go unchallenged. But they did not file a responsive

pleading to the motion in which they could have challenged the alleged

misstatements. Moreover, the district court did not base its decision on the

statements in the motion to dismiss but, rather, on the insufficiency of the complaint.

Accordingly, we find no error.

      Finally, we consider Brainards’ claim that defendant mistakenly referred to an

unidentified foreclosure in the motion to dismiss.2 Brainards did not raise this

argument in the district court, so we do not consider it. See Curtis v. Chester,

626 F.3d 540, 548 (10th Cir. 2010) (“Absent extraordinary circumstances, we will

not consider arguments raised for the first time on appeal.” (internal quotation marks

omitted)). Even so, we fail to see how they were harmed by this error.
2
      Brainards have withdrawn their arguments relating to their untimely receipt of
the motion to dismiss and to defendant’s duty to confer.
                                          -5-
                             III.   Filing and Docketing Fees

       The district court denied Brainards’ request to proceed on appeal without

prepayment of fees (in forma pauperis). 28 U.S.C. § 1915 (a)(3). They renewed the

request here. It is DENIED “because [they have] failed to present a nonfrivolous

argument in support of the issues on appeal, and [they are] directed to pay the full

appellate filing fee,” Thomas v. Parker, 609 F.3d 1114, 1121 (10th Cir. 2010)

(citation and footnote omitted). All filing and docketing fees are immediately

payable to the clerk of the district court.

                                     IV.      Conclusion

   The judgment of the district court is AFFIRMED.




                                                    Entered for the Court


                                                    Terrence L. O’Brien
                                                    Circuit Judge




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