                                                                       F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                    UNITED STATES CO URT O F APPEALS
                                                                      August 18, 2006
                                 TENTH CIRCUIT                     Elisabeth A. Shumaker
                                                                       Clerk of Court


 EV ERETT H O U CK ,

               Plaintiff - Appellant,                   No. 06-6006
          v.                                           (W . Dist. Okla.)
 OKLA HOM A W ORK ERS’                           (D.C. No. CIV-05-1247-F)
 COM PENSATION COURT; M ARCIA
 W ILLIAM SON; DR EW
 EDM ONDSO N, State Attorney
 General; COM PSOURCE
 OKLAHO M A; LARRY BRAWN ER,

               Defendants - Appellees.



                            OR D ER AND JUDGM ENT *


Before TA CH A, Chief Judge, HA RTZ and TYM KOVICH, Circuit Judges.


      On October 27, 2005, Everett Houck filed suit in the United States District

Court for the W estern District of O klahoma against the O klahoma W orkers’




      *
       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not binding precedent, except under the doctrines of law of the case, res judicata,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. The court generally disfavors the citation of orders and
judgments; nevertheless, an order and judgment may be cited under the terms and
conditions of 10th Cir. R. 36.3.
Compensation Court, M arcia W illiamson, Drew Edmondson, CompSource

Oklahoma, and Larry Brawner. The complaint states in full:

             The O klahoma Workers Compensation and Compusource Ok
      discriminate against w orkers w ho have injuries that will not result in
      large awards. In those cases where workers are able to obtain legal
      representation, Compusource forces those cases to be taken to court
      and the law yer w ithdraw s from representing the injured worker. In
      my case, I chose to continue with my case pro se, and have found a
      system in which judges totally ignore evidence and routinely rule in
      favor of Compusource. I have taken my complaint to the Attorney
      General and have not even got the dignity of a response. . . . In the
      interests of justice and equity, I am now taking my case to this court.
      I would like to make this case a class action to invite others who
      have been denied justice by this court to join this action. To correct
      this injustice, there needs to be a monetary award for all the people
      who were injured by this court, and a new and fair hearing on their
      cases.

R. Doc. 1. The defendants, other than M s. W illiamson, moved to dismiss the

complaint. The district court granted their motions, dismissing all defendants,

including M s. W illiamson, without prejudice. It ruled that M r. Houck’s response

was untimely under the local rules so “it is appropriate to deem both motions

confessed and granted on that basis.” Id. Doc. 16 at 2. Alternatively, it

dismissed on the grounds that (1) the court lacked jurisdiction; (2) the complaint

failed to state a claim; and (3) with respect to defendants W illiamson and

Brawner, the complaint made no allegations against them. W e affirm.

      The untimeliness of M r. Houck’s response to the motions to dismiss was

not a sufficient basis for dismissal. See Issa v. Comp USA, 354 F.3d 1174, 1177-

78 (10th Cir. 2003) (“[A] district court may not grant a motion to dismiss for

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failure to state a claim merely because a party failed to file a response. . . .

[E]ven if a plaintiff does not file a response to a motion to dismiss for failure to

state a claim, the district court must still examine the allegations in the plaintiff’s

complaint and determine whether the plaintiff has stated a claim upon which

relief can be granted.” (internal quotation marks, citations, and brackets

omitted)). The district court also ruled, however, that it lacked subject-matter

jurisdiction. Our review of this issue is de novo. See Colo. Envtl. Coal. v.

Wenker, 353 F.3d 1221, 1227 (10th Cir. 2004). Even construing M r. Houck’s pro

se complaint liberally, as we must, see Hunt v. U phoff, 199 F.3d 1220, 1223 (10th

Cir. 1999), we agree with the district court that diversity jurisdiction does not

exist, and the complaint fails to set forth “a short and plain statement of the

grounds upon which the court’s jurisdiction depends,” as required by Fed. R. Civ.

P. 8(a).

       W e A FFIRM the judgment of the district court and deny M r. Houck’s

motion to proceed in form a pauperis.

                                         ENTERED FOR THE COURT


                                         Harris L Hartz
                                         Circuit Judge




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