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

                           FOR THE TENTH CIRCUIT                       October 16, 2013

                                                                      Elisabeth A. Shumaker
                                                                          Clerk of Court
DAVID SILVER,

             Plaintiff-Appellant,

v.                                                         No. 13-2091
                                               (D.C. No. 1:12-CV-00948-JAP-RHS)
BRUNO VASSEL, III; GORDON                                   (D. N.M.)
PETERSON; CLINTON H. BULLOCK,

             Defendants-Appellees.


                            ORDER AND JUDGMENT*


Before KELLY, TYMKOVICH, and PHILLIPS, Circuit Judges.


      David Silver appeals the district court’s dismissal of his fraud, racketeering,

disparagement, and negligent infliction of emotional distress (“NIED”) claims.

Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

      Silver is the founder and CEO of an investment group, Santa Fe Capital Group

(“SFCG”), located in Santa Fe, New Mexico. In 2002, SFCG entered into an


*
      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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
agreement with iboats, inc. (“iboats”), a Utah corporation, under which Silver would

locate investors to provide startup capital to the company in exchange for preferred

stock. Under the agreement, SFCG would then receive a percentage of the securities

purchased by the investors that Silver introduced to iboats.

      Silver found six investors to purchase preferred stock in iboats. According to

him, although iboats grew exponentially, the company paid no dividends or interest

on the preferred stock to those six investors, and violated numerous covenants to

their investment agreements. In 2012, iboats’ counsel, Clinton Bullock, contacted

the preferred shareholders and made offers to buy or convert to common stock their

preferred shares. After the investors informed Silver of the offers, he contacted

iboats’ CFO, Gordon Peterson, and demanded that iboats pay each of the six

investors a specified return on their original investment. But iboats apparently did

not do so.

      Proceeding pro se, Silver then brought a diversity action in the District of New

Mexico for fraud and racketeering based on alleged violations of the contract

between SFCG and iboats. He also asserted claims of disparagement and NIED

based on the fact that Bullock, Peterson, and CEO Bruno Vassel (hereinafter

“Defendants”) communicated with the investors without including him, thus

allegedly damaging his reputation.

      The Defendants moved to dismiss the complaint and the district court granted

the motion. The court first dismissed Silver’s fraud and racketeering charges for lack


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of standing. The court reasoned that because those claims were based on the contract

between SFCG and iboats, only SFCG had standing to sue to enforce the contract’s

terms. Nor could Silver bring a claim on SFCG’s behalf because he was not a

lawyer. See Rowland v. Cal. Men’s Colony, 506 U.S. 194, 201-202 (1993) (a

business entity can only appear in court through an attorney and not a corporate

officer appearing pro so). The court also held that even if Silver could bring his

claim, dismissal was appropriate because the lawsuit did not name the real party in

interest, iboats, as it was the company—and not the Defendants individually—with

which SFCG contracted.

      As to the disparagement and NIED claims, the district court concluded that it

lacked personal jurisdiction over the Defendants because none of them had

established minimum contacts with the District of New Mexico such that they should

reasonably anticipate being haled into court there. See World-Wide Volkswagon

Corp. v. Woodson, 444 U.S. 286, 297 (1980). The court alternatively found that

dismissal was appropriate for improper venue.

      On appeal, Silver does not challenge the district court’s conclusion about the

dismissal of his disparagement and NIED claims, thus review of those claims is

waived. See Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 679 (10th Cir. 1998).

Rather, Silver challenges the court’s dismissal of his fraud and racketeering claims

on two grounds. First, Silver alleges that despite his pro se status, the district court

denied him any leniency and instead held him to the same standards as a practicing


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attorney.1 See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991) (“A pro se

litigant’s pleadings are to be construed liberally and held to a less stringent standard

than formal pleadings drafted by lawyers.”). It is true that while discussing his pro se

status, the court noted Silver’s numerous federal cases and experience with federal

litigation. But it only did so in finding that he had sufficient experience in federal

court to recognize the obvious jurisdictional and procedural defects with his

complaint—the same defects, it should be noted, for which all pro se litigants are

held accountable. See Hall v. Witteman, 584 F.3d 859, 863-64 (10th Cir. 2009).

       Second, Silver contends that by acting adversely to iboats’ interests, the

Defendants are liable in their individual capacity and are therefore the properly

named parties in interest. See Mosier v. Callister, Nebeker & McCullough, 546 F.3d

1271, 1276 (10th Cir. 2008) (noting that under the “adverse interest exception,”

conduct by corporate officers acting in their own interest and adverse to the company

will not be imputed to the company). However, Silver’s only support for this

contention is a conclusory statement that the Defendants caused the preferred

stockholders to be “angry,” and “[t]o anger one’s earliest stockholders clearly hurts

the corporation’s interests.” Aplt. Br. at 14. Moreover, Silver ignores entirely that

the court also dismissed his claims because he lacked standing to bring them on his

company’s behalf. The district court did not err in dismissing Silver’s claims.


1
       It is worth noting that Silver suggests in his brief that he is, in fact, a disbarred
attorney. Aplt. Br. at 12.


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Accordingly, the judgment of the district court is affirmed.


                                        Entered for the Court


                                        Paul J. Kelly, Jr.
                                        Circuit Judge




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