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

                             FOR THE TENTH CIRCUIT                       September 23, 2015
                         _________________________________
                                                                        Elisabeth A. Shumaker
                                                                            Clerk of Court
ELBERT KIRBY, JR.;
CALEB MEADOWS,

      Plaintiffs - Appellants,

v.                                                         No. 15-5019
                                              (D.C. No. 4:14-CV-00389-GKF-FHM)
RESMAE MORTGAGE                                            (N.D. Okla.)
CORPORATION; LASALLE BANK
NATIONAL ASSOCIATION; US BANK
NATIONAL ASSOCIATION; SAXON
MORTGAGE SERVICES, INC.; OCWEN
LOAN SERVICING, LLC; JOHN AND
JANE DOES 1-100,

      Defendants - Appellees.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before HARTZ, PORFILIO, and PHILLIPS, Circuit Judges.
                  _________________________________

      Pro se plaintiffs Elbert Kirby, Jr. and Caleb Meadows (collectively “Kirby”)

appeal the district court’s orders denying their motion for default judgment,



      *
        After examining the brief 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
dismissing their initial and amended complaints, and denying their request to file a

second amended complaint. We affirm.

                                     I. Background

      Kirby sued Resmae Mortgage Corporation and others under the Racketeer

Influenced and Corrupt Organizations Act, 18 U.S.C. §§ 1961-1968, accusing them

of using false evidence of indebtedness to deprive him of property. Specifically,

Kirby alleged that he received monthly requests for payment from someone who

claimed to have a security interest in his property. Kirby did not, however, state

whether he ever made a payment or explain how he was deprived of property. As a

result, the district court dismissed Kirby’s complaint for failure to state a claim on

which relief could be granted. Kirby subsequently filed an amended complaint,

which the court also dismissed on grounds that his claims were “clearly baseless” and

“factually frivolous.”

      Having given Kirby two opportunities to bring a valid claim, the court entered

judgment in favor of Resmae and the other defendants. After the judgment entered,

Kirby filed a motion asking the district court to vacate its prior order and allow him

to file a second amended complaint. The court denied the motion and Kirby

appealed.

                                     II. Discussion

      On appeal, Kirby argues the district court erred by (1) denying his motion for

default judgment against Resmae, (2) dismissing his initial and amended complaints,

and (3) denying his postjudgment motion for leave to file a second amended

                                            2
complaint. We lack jurisdiction to review Kirby’s first two claims and conclude the

district court did not abuse its discretion when it denied Kirby’s motion for leave to

file an amended complaint.

    A. Orders Denying Kirby’s Motion for Default Judgment and Dismissing his
                                 Complaints

      Kirby argues in his opening brief that the district court erred when it denied

his motion for default judgment and dismissed his initial and amended complaints.

Kirby’s notice of appeal, however, designates only one order for appellate review:

the district court’s “final order on the Plaintiffs[’] Motion for Leave to File an

Amended Complaint based upon Newly Discovered Evidence of Extrinsic Value

entered into this action on March 3, 2015.” We do not have jurisdiction to review

orders not identified in the notice of appeal. Foote v. Spiegel, 118 F.3d 1416, 1422

(10th Cir. 1997). We therefore limit our review to the district court’s order denying

Kirby’s postjudgment motion for leave to file a second amended complaint.

               B. Postjudgment Motion for Leave to Amend Complaint

      Kirby claims the district court erred when it denied his postjudgment motion

for leave to file a second amended complaint. He argues the court should have

allowed him to amend his complaint in light of new evidence, namely a prospectus

supplement for a particular mortgage loan asset-backed certificate. He also claims

the district court should have recused because the judge had two accounts with




                                            3
Merrill Lynch, which filed the prospectus supplement with the Securities and

Exchange Commission.1 We disagree on both counts.

      We review the denial of a postjudgment motion for abuse of discretion.

Jennings v. Rivers, 394 F.3d 850, 854 (10th Cir. 2005). “A district court abuses its

discretion when it makes a clear error of judgment, exceeds the bounds of

permissible choice, or when its decision is arbitrary, capricious or whimsical, or

results in a manifestly unreasonable judgment.” BancInsure, Inc., v. F.D.I.C.,

Nos. 14-3063 & 3064, 2015 WL 4647980, at *9 (10th Cir. Aug. 6, 2015) (internal

quotation marks omitted).

      As an initial matter, we construe Kirby’s motion as a request to alter or amend

the district court’s judgment under Fed. R. Civ. P. 59(e) because it was filed within

twenty-eight days after the judgment entered, sought to present new evidence, and

raised an additional legal issue. See Fed. R. Civ. P. 59(e); Commonwealth Prop.

Advocates, LLC v. Mortg. Elec. Registration Sys., Inc., 680 F.3d 1194, 1200

(10th Cir. 2011) (“A Rule 59(e) motion is the appropriate vehicle to correct manifest

errors of law or to present newly discovered evidence.”) (internal quotation marks

omitted); Tool Box, Inc. v. Ogden City Corp., 419 F.3d 1084, 1087 (10th Cir. 2005)

(a plaintiff may not file an amended complaint after judgment has entered unless the

judgment is vacated pursuant to Fed. R. Civ. P. 59(e) or 60(b)). Relief under Rule

59(e) may be warranted (1) when there has been a change in the controlling law,

      1
         The supplement was actually filed by Merrill Lynch Mortgage Investors
Trust. For purposes of this appeal, we need not determine whether the two are
distinct entities.
                                           4
(2) when there is new evidence that was previously unavailable, or (3) to correct

clear error or prevent manifest injustice. Somerlott v. Cherokee Nation Distribs.,

Inc., 686 F.3d 1144, 1153 (10th Cir. 2012).

      We agree with the district court that, to the extent the prospectus supplement

was relevant to Kirby’s claims, he failed to show it warranted relief under Rule 59(e).

A party who seeks to submit additional evidence must show the evidence is newly

discovered and, if the evidence was available at the time of the decision being

challenged, that he made a diligent effort to discover it. Comm. For First

Amendment v. Campbell, 962 F.2d 1517, 1523 (10th Cir. 1992). As the district court

noted, the prospectus supplement is a public record that appears to have been

available since 2006,2 and Kirby offered no explanation for his failure to discover it

sooner. Under the circumstances, we conclude the district court did not abuse its

discretion when it denied Kirby’s motion on this ground.

      Likewise, we reject Kirby’s claim that the district court erred when it denied

his request to recuse. Kirby alleged in his postjudgment motion that the district court

had a “conflict[] with the current subject matter” because, according to a financial

disclosure report, the judge had two retirement accounts with Merrill Lynch.

R. vol. 1 at 107. The court interpreted Kirby’s argument as a request for recusal

under 28 U.S.C. § 455.3 It found that recusal was not required because Merrill Lynch


      2
         The prospectus supplement is dated June 26, 2006, and is on file with the
Securities and Exchange Commission.
       3
         Kirby made no objection to this interpretation and appears to have adopted it
in his opening brief.
                                           5
was not a party to the case, a reasonable person knowing all relevant facts would not

harbor doubts about the court’s impartiality, and the case could not substantially

affect the court’s financial interests. See 28 U.S.C. § 455(a), (b)(4). Kirby has given

us no reason to conclude otherwise. Therefore, the district court did not abuse its

discretion by denying Kirby’s request to recuse.

                                    III. Conclusion

      Because the district court did not abuse its discretion when it denied Kirby’s

motion for leave to file an amended complaint, and we lack jurisdiction to address

Kirby’s other claims, we affirm the district court’s order.


                                            Entered for the Court


                                            John C. Porfilio
                                            Circuit Judge




                                           6
