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

                             FOR THE TENTH CIRCUIT                        March 19, 2020
                         _________________________________
                                                                       Christopher M. Wolpert
                                                                           Clerk of Court
REED KIRK MCDONALD,

      Plaintiff - Appellant,

v.                                                          No. 19-1101
                                               (D.C. No. 1:18-CV-00105-CMA-NRN)
EAGLE COUNTY, a quasimunicipal                               (D. Colo.)
corporation and political subdivision of the
State of Colorado; BELLCO CREDIT
UNION,

      Defendants - Appellees.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before TYMKOVICH, Chief Judge, HARTZ and BACHARACH, Circuit Judges.
                 _________________________________

       Reed Kirk McDonald appeals from the district court’s order granting Eagle

County’s and Bellco Credit Union’s (“Bellco”) motions to dismiss under Fed. R. Civ.

P. 12(b)(1), and awarding them attorney fees incurred in defending against

McDonald’s suit. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm the




       *
        After examining the briefs 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
dismissal and award of fees; however, we remand the case for the court to amend the

judgment to reflect a dismissal without prejudice.

                                    I. BACKGROUND

         McDonald’s federal suit was based on two unrelated Colorado state court

cases.

         A. Eagle County Suit

         The first suit, filed in 2009 in Eagle County District Court (“Eagle Court”),

was an action by McDonald against Zions First National Bank (“Zions”), in which he

alleged Zions breached a loan agreement and the duty of good faith and fair dealing

when it failed to advance the draws he requested. Zions denied the allegations and

counterclaimed for a deficiency judgment. Shortly after the Eagle Court granted

summary judgment in favor of Zions on McDonald’s claims, Zions voluntarily

dismissed its counterclaim without prejudice. Thereafter, the Eagle Court awarded

Zions $102,267.75 in attorney fees and costs incurred in defending against

McDonald’s suit.

         When McDonald tried to appeal—including an appeal of Zions’s voluntary

dismissal of its counterclaim without prejudice—the Colorado Court of Appeals

ordered him to obtain certification under Colo. R. Civ. P. 54(b), “because the cross-

claims [sic] were dismissed without prejudice, [and therefore] an appealable order

has not entered.” R., Vol. I at 30. The court noted if it “had found that a final and

appealable order had been entered, it would have found that the time for filing an

appeal had not started to run because there was no evidence that [McDonald] ever

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was served a copy of the [Eagle Court’s] order.” Id. at 30-31. McDonald’s appeal

was dismissed when he failed to obtain certification. Sometime later, as part of its

efforts to collect the judgment for attorney fees and costs, Zions obtained a writ of

garnishment from the Eagle Court for an account McDonald maintained at Bellco.

      B. Arapahoe County Suit

      The second suit, filed by Bellco in county court in Arapahoe County in 2016,

was a collection action against McDonald for an unpaid debt of $14,664.09—it had

nothing to do with Zions’s garnishment of McDonald’s Bellco account several years

earlier in the Eagle Court litigation. Nonetheless, McDonald filed counterclaims

against Bellco and a third-party claim against Eagle County for perceived violations

of his due process right by the Eagle Court in the 2009 suit. At the same time,

McDonald removed the action to the Arapahoe County district court (the “Arapahoe

County litigation”). Eventually, McDonald’s counterclaims and third-party claims

were dismissed, leaving only Bellco’s original collection claim.

      C. Federal Court Suit

      Shortly after Bellco filed a motion for summary judgment in the Arapahoe

County litigation, McDonald sued Eagle County in federal court. Days later,

McDonald attempted to avoid summary judgment by filing a pleading in the federal

suit titled “Notice of Removal . . . Complaint and Jury Demand,” id. at 246, which

asserted four claims against Bellco. From that point forward, McDonald

maintained—and continues to maintain—there was no state proceeding because the

Arapahoe County litigation had been removed to federal court.

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      Next, McDonald filed an amended complaint in the federal suit adding Bellco

as a defendant. The amended complaint also alleged four claims against Eagle

County, all of which were based on the outcome in the Eagle Court litigation:

(1) under 42 U.S.C. § 1983 for violating his Fifth and Fourteenth Amendment rights

by “fail[ing] its obligation to obey the Court of Appeals Order [to provide] due

process and equal protection” and by “refusing to conclude the [litigation in Eagle

Court], id. at 314; (2) under § 1983 for violating his Fourth Amendment rights by

“knowingly fil[ing] and issu[ing] [a] writ allowing [Zions] to seize Plaintiff’s bank

accounts to financially prevent [him] from pursuing his civil case,” R., Vol. I at 316;

(3) under § 1983 for violating “the United States Constitution” by “knowingly and

improperly refus[ing] under color of state law to allow Plaintiff to present his case

against [Zions],” id. at 317; and (4) under 42 U.S.C. § 1985 for conspiring with the

clerk of the Eagle Court and Zions to violate his civil rights.

      As to Bellco, McDonald realleged the failed defenses and/or counterclaims he

raised in the Arapahoe County suit: (1) violation of his Fourteenth Amendment

rights by refusing to dismiss its collection suit and “conspir[ing] with [the] state court

to prosecute a civil action out-of-time in violation of Colorado’s statute of

limitations,” id. at 320; (2) violation of the federal Fair Debt Collection Practices

Act; (3) violation of Colorado’s Fair Debt Collection Practices Act; and (4) violation

of his First Amendment rights to privacy “by trespassing his gated property to

illegally search and seize Plaintiff’s personal property,” id. at 324.



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      D. Disposition of Federal and Arapahoe County Litigation

      Thereafter, the Arapahoe County district court determined McDonald’s

attempted removal was improper and entered summary judgment in favor of Bellco

on its collection claim. McDonald appealed.

      While McDonald’s appeal was pending, Eagle County and Bellco moved to

dismiss the federal suit on several grounds. Relevant to the issues on appeal, the

magistrate judge recommended the following: (1) dismissal of the claims against

Eagle County for lack of subject-matter jurisdiction under the Rooker-Feldman

doctrine1; (2) dismissal of the claims against Bellco under the Younger abstention

doctrine2 if the state-court proceedings had not concluded, or under Rooker-Feldman

if the proceedings were completed; and (3) an award of attorney fees to Eagle County

and Bellco.

      In his objections to the magistrate judge’s recommendations, McDonald

argued that Rooker-Feldman and Younger did not apply, and in any event, the

dismissal should be without prejudice. On de novo review, the district court affirmed

the magistrate judge’s recommendation to dismiss the claims with prejudice under

Rooker-Feldman and Younger. The district court reviewed the recommendation to

award attorney fees for clear error and affirmed.



      1
      See Rooker v. Fid. Tr. Co., 263 U.S. 413 (1923); D.C. Court of Appeals v.
Feldman, 460 U.S. 462 (1983).
      2
          See Younger v. Harris, 401 U.S. 37 (1971).

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      An “update” recently filed by McDonald confirms the Arapahoe County suit is

still ongoing. Shortly after the federal district court entered its order in March 2019,

the Colorado Court of Appeals decided McDonald’s appeal, affirming the state

court’s judgment. Bellco Credit Union v. McDonald, No. 18CA0689, 2019 WL

1873422 (Colo. App. Apr. 25, 2019) (unpublished). When the Colorado Supreme

Court denied certiorari review, McDonald v. Bellco Credit Union, No. 19SC475,

2019 WL 4643619 (Colo. Sept. 23, 2019) (unpublished), McDonald filed a petition

for a writ of certiorari in the United States Supreme Court, which has not been

resolved. McDonald v. Bellco Credit Union, 2020 WL 290965 (U.S. Jan. 15, 2020)

(No. 19-895).

                           II. STANDARD OF REVIEW

      We review de novo the district court’s dismissal under both the Rooker-

Feldman doctrine and the Younger abstention doctrine. Campbell v. City of Spencer,

682 F.3d 1278, 1281 (10th Cir. 2012) (Rooker-Feldman); Taylor v. Jaquez, 126 F.3d

1294, 1296 (10th Cir. 1997) (Younger).

                                   III. ANALYSIS

      A. Claims Against Eagle County

      The Rooker-Feldman doctrine bars “cases brought by state-court losers

complaining of injuries caused by state-court judgments rendered before the district

court proceedings commenced and inviting district court review and rejection of

those judgments.” Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280,

284 (2005).

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      McDonald argues the district court erred by determining his claims against

Eagle County are barred by Rooker-Feldman. We will not consider McDonald’s

argument because he has failed to adequately brief the issue; instead, he continues to

denounce the actions of the Eagle County District Court, Bellco, the magistrate

judge, and the district court. McDonald’s failure to adequately brief the issue means

that we will not consider the issue on appeal. See Holmes v. Colo. Coal. For

Homeless Long Term Disability Plan, 762 F.3d 1195, 1199 (10th Cir. 2014)

(declining to consider arguments on appeal that were inadequately briefed); Murrell

v. Shalala, 43 F.3d 1388, 1390 n.2 (10th Cir. 1994) (declining to consider “a few

scattered statements” and “perfunctory” arguments that failed to develop an issue).

      We affirm the district court’s dismissal of McDonald’s claims against Eagle

County as barred by Rooker-Feldman.

      B. Claims Against Bellco

      In contrast with the Rooker-Feldman doctrine, the Younger abstention doctrine

applies when state proceedings have not concluded; it “dictates that federal courts not

interfere with state court proceedings by granting equitable relief—such as

injunctions of important state proceedings or declaratory judgments regarding

constitutional issues in those proceedings—when such relief could adequately be

sought before the state court.” Amanatullah v. Colo. Bd. of Med. Exam’rs, 187 F.3d

1160, 1163 (10th Cir. 1999) (internal quotation marks omitted). Younger abstention

is non-discretionary and must be applied when three conditions exist:



                                          7
      (1) there is an ongoing state criminal, civil, or administrative
      proceeding, (2) the state court provides an adequate forum to hear the
      claims raised in the federal complaint, and (3) the state proceedings
      involve important state interests, matters which traditionally look to
      state law for their resolution or implicate separately articulated state
      policies.

Id. (internal quotation marks omitted).

      Once again, we will not consider McDonald’s argument because he has failed

to adequately brief the issue; instead of addressing Younger, he excoriates the Eagle

County District Court, Bellco, the magistrate judge, and the district court.

McDonald’s failure to adequately brief the issue means that we will not consider the

issue on appeal. See Holmes, 762 F.3d at 1199; Murrell, 43 F.3d at 1390 n.2.

      We affirm the district court’s dismissal of McDonald’s claims against

Bellco under Younger.

      C. Attorney Fees

      The record shows that McDonald failed to object to the magistrate judge’s

recommendation to award Eagle County and Bellco their attorney fees incurred in

defending against the amended complaint. “We have adopted a firm waiver rule

when a party fails to object to the findings and recommendations of the magistrate.”

Duffield v. Jackson, 545 F.3d 1234, 1237 (10th Cir. 2008) (brackets and internal

quotation marks omitted). “The failure to timely object to a magistrate’s

recommendations waives appellate review of both factual and legal questions.” Id.

(internal quotation marks omitted). There are two exceptions to the rule; however,

neither exception applies here. As such, we will not consider the issue on appeal.


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                                  IV. CONCLUSION

       We affirm the district court’s order of dismissal and award of attorney fees and

remand only for the district court to amend its judgment to reflect that the dismissal

is without prejudice. “A longstanding line of cases from this circuit holds that where

the district court dismisses an action for lack of jurisdiction, as it did here, the

dismissal must be without prejudice.” Brereton v. Bountiful City Corp., 434 F.3d

1213, 1216 (10th Cir. 2006). See also Chapman v. Oklahoma, 472 F.3d 747, 750

(10th Cir. 2006) (addressing Younger).


                                              Entered for the Court


                                              Timothy M. Tymkovich
                                              Chief Judge




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