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

                       FOR THE TENTH CIRCUIT                      December 30, 2015
                       _________________________________
                                                                 Elisabeth A. Shumaker
                                                                     Clerk of Court
SARA M. FRANKLIN,

       Plaintiff - Appellant,

v.                                                   No. 15-1205
                                            (D.C. No. 1:15-CV-00847-LTB)
DOUGLAS COUNTY DISTRICT                               (D. Colo.)
COURT; TOWN OF CASTLE
ROCK; DOUGLAS COUNTY, CO;
CASTLE ROCK POLICE DEPT.;
DOUGLAS COUNTY SHERIFF’S
OFC; LITTLE POLICE
DEPARTMENT; ARAPAHOE
COUNTY SHERIFF’S OFC;
DOUGLAS COUNTY SCHOOL
SYSTEM; STATE OF COLORADO;
JUDGE CHRISTOPHER CROSS; JUDGE
DONALD MARSHALL; JUDGE
THERESA SLADE; JUDGE MITCHELL
SPEAR; JUDGE NATALIE CHASE;
MAGISTRATE FRANK MOSCHETTI;
MAGISTRATE REBECCA MOSS,

      Defendants - Appellees.
                      _________________________________

                        ORDER AND JUDGMENT *
                        _________________________________


*
      The parties do not request oral argument, and the Court has
determined that oral argument would not materially aid our consideration
of the appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). Thus, we
have decided the appeal based on the briefs.

     Our order and judgment does not constitute binding precedent except
under the doctrines of law of the case, res judicata, and collateral estoppel.
Before KELLY, BACHARACH, and MORITZ, Circuit Judges.

                        _________________________________

      Ms. Sara Franklin filed two suits in federal court. The first one was

dismissed without prejudice because she had related proceedings pending

in state court. When the state-court proceedings ended, Ms. Franklin filed

a new suit in federal court. Even though the prior dismissal was without

prejudice, the federal district court dismissed the new federal suit on the

ground that it was repetitious with the first suit. We reverse.

I.    In the first federal suit, the district court dismissed without
      prejudice based on Younger abstention.

      In the first suit, Ms. Franklin claimed constitutional violations during

her divorce proceedings. Because the divorce proceedings were ongoing at

the time, the federal district court abstained under Younger v. Harris and

ordered dismissal without prejudice. Hartmann v. Douglas Cty., No. 12-cv-

03309-LTB, order at 3-4 (D. Colo. Feb. 7, 2013); see Younger v. Harris,

401 U.S. 37, 43-44 (1971) (describing the general rule that federal courts

should not interfere with ongoing state cases).

II.   Even though the first dismissal was without prejudice, the district
      court ordered dismissal of the second suit on the ground that it
      was repetitious with the first suit.

      After Ms. Franklin’s divorce became final, she brought a second

federal suit against many of the same parties. The next day, the district

court ordered Ms. Franklin to show cause why the second suit should not



                                       2
be dismissed as repetitious. When Ms. Franklin failed to timely respond,

the court dismissed the action with prejudice on the ground that the claims

were repetitious. Hartmann v. Douglas Cty. Dist. Ct., No. 15-cv-00847-

GPG, order at 2 (D. Colo. May 28, 2015).

       Ms. Franklin argues in part that the district court erred when it

dismissed the claims as repetitious, pointing out that the prior dismissal

had been without prejudice. 1

III.   Even though Ms. Franklin failed to respond to the show-cause
       order, we address the merits of her appeal point.

       By failing to respond to the district court’s show-cause order, 2 Ms.

Franklin may have forfeited her argument that the district court erred by

dismissing her claims as repetitious. See Richison v. Ernest Group, Inc.,

634 F.3d 1123, 1128 (10th Cir. 2011) (a party forfeits an appeal point by

failing to raise it in district court). But even if she otherwise committed a

forfeiture, we would consider the merits for two reasons.


1
     Because Ms. Franklin filed her brief pro se, we liberally construe her
arguments. United States v. Pinson, 584 F.3d 972, 975 (10th Cir. 2009).
2
      The defendants state that the district court dismissed the second suit
as a sanction “for failure to timely respond” to the show-cause order.
Appellees’ Answer Br. at 14-18. According to the defendants, this sanction
was proper under the four-factor test in Ehrenhaus v. Reynolds, 965 F.2d
916, 921 (10th Cir. 1992). This characterization is incorrect. After noting
Ms. Franklin’s failure to respond to the show-cause order, the district court
stated that it would dismiss the action as repetitious, not as a sanction for
failing to respond to the show-cause order. Hartmann v. Douglas Cty. Dist.
Ct., No. 15-cv-00847-GPG, order at 2 (D. Colo. May 28, 2015).


                                       3
      First, we have discretion to consider forfeited arguments when they

involve pure matters of law and their resolution is certain. See Cox v.

Glanz, 800 F.3d 1231, 1244, 1246 n.7 (10th Cir. 2015); United States v.

Jarvis, 499 F.3d 1196, 1201-02 (10th Cir. 2007). These requirements are

satisfied here, as discussed below.

      Second, the defendants waived the possible forfeiture. In this appeal,

they had an opportunity to argue forfeiture, but did not. Thus, the

defendants waived any possible forfeiture. See United States v. Rodebaugh,

798 F.3d 1281, 1314 (10th Cir. 2015); Cook v. Rockwell Int’l Corp., 618

F.3d 1127, 1138-39 (10th Cir. 2010).

      For both reasons, we would consider the merits even if Ms. Franklin

had forfeited her appeal point in district court.

IV.   The district court erred when it dismissed Ms. Franklin’s claims
      as repetitious.

      The district court reasoned that Ms. Franklin’s claims were

repetitious. Many of them were. But Ms. Franklin was free to refile the

claims because the first dismissal had been without prejudice.

      We would ordinarily review the dismissal for an abuse of discretion.

Fogle v. Pierson, 435 F.3d 1252, 1259 (10th Cir. 2006). But the dismissal

turned on an issue of law: whether the second suit could be dismissed as

repetitious when the prior dismissal was without prejudice. On that issue,

we engage in de novo review. Id.



                                       4
      The court erred as a matter of law in ordering dismissal based on

repetition of the claims. Because the court dismissed the prior claims

without prejudice, Ms. Franklin was free to refile the claims. See Semtek

Int’l Inc. v. Lockheed Martin Corp., 531 U.S. 497, 505 (2001) (a dismissal

without prejudice allows the plaintiff to return and bring the same claim to

the same court).

      That is what Ms. Franklin did. After the state divorce proceedings

ended, she brought this action to pursue the claims she had been unable to

litigate earlier. In the first federal suit, the court dismissed the action

without prejudice, allowing Ms. Franklin to bring the same claims through

a new suit when the divorce case ended.

      The defendants argue that the jurisdictional impediment remained

because the second federal suit (like the first suit) arose out of the state

divorce proceedings. According to the defendants, the district court had

“already determined in the prior proceeding that [Ms. Franklin] may not

pursue her constitutional claims arising out of state court proceedings.”

Appellees’ Answer Br. at 12. This characterization is incorrect. The

district court dismissed the first action under Younger because Ms.

Franklin had alleged the state divorce proceedings were still pending.

Hartmann v. Douglas Cty., No. 12-cv-03309-LTB, order at 3 (D. Colo.

Feb. 7, 2013). In the second federal suit, Ms. Franklin alleged that the state

divorce proceedings had ended. Compl. at 2. Once the state divorce


                                        5
proceedings ended, Younger would no longer support dismissal. See Myers

v. Garff, 876 F.2d 79, 81 n.3 (10th Cir. 1989).

      The defendants’ justification for the ruling does not match the

district court’s explanation for the first dismissal. In dismissing the second

federal suit, the court effectively treated the first dismissal as a permanent

obstacle to relief. It wasn’t: it prevented relief only while the state divorce

proceedings were pending, and Ms. Franklin alleged that they had ended

before she filed the second suit. Under these circumstances, we conclude

the court erred by dismissing the second suit as repetitious.

V.    Disposition of the Appeal

      We reverse the dismissal and remand for further proceedings.

VI.   Leave to Proceed Without Prepayment of the Filing Fee

      We grant Ms. Franklin’s request to proceed on appeal without

prepayment of the filing fee.

                                    Entered for the Court




                                    Robert E. Bacharach
                                    Circuit Judge




                                       6
