                                                                          F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                         October 31, 2005
                                 TENTH CIRCUIT
                                                                          Clerk of Court

 ROBERT MULDER and TAMARA L.
 MULDER,
                                                        No. 05-4044
               Plaintiffs-Appellants,


          v.                                          District of Utah
 SCOTT LUNDBERG; LUNDBERG &                    (D.C. No. 2:04CV1200 DAK)
 ASSOCIATES; ALEJANDRO
 MAYNEZ; MAYNEZ LAW FIRM;
 DEANNA MARIE
 LASKER-WARDEN; BEAN &
 SMEDLEY CHASE MANHATTAN
 MORTGAGE; MORTGAGE
 ELECTRONIC REGISTRATION
 SYSTEMS, INC.; MARIA
 SEVERINO-ROLLER; TONI M.
 KLYSZ,

               Defendants - Appellees.




                           ORDER AND JUDGMENT           *




Before HARTZ , BARRETT , and McCONNELL , Circuit Judges.




      *
       This order and judgment is not binding precedent, except under the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.
      Plaintiffs Robert and Tamara Mulder defaulted on loans secured by two

parcels of real property in Utah County and Weber County, Utah. In response,

Defendants Scott Lundberg and Lundberg & Associates initiated nonjudicial

foreclosure proceedings as authorized by Utah law. 1 The Mulders subsequently

transferred their interest in both parcels by quitclaim deed to the Pembina Nation

Little Shell Band of North America. They then filed an action pro se in federal

court, claiming that Utah’s nonjudicial foreclosure statute violated their

“fundamental, God-given and Constitutionally supported Rights” as “Sovereign

Citizens” of the Pembina Nation Little Shell Band of North America. Compl.

2–3. The complaint requested an injunction barring the Defendants from selling,

transferring, or conveying the two parcels.

      The district court dismissed the action with prejudice on January 11, 2005,

citing defective service, lack of standing, and failure to state a claim for which

relief can be granted under Rule 12(b). The court subsequently denied the

Mulders’ motion to amend the complaint on January 20. On March 2, the district

court issued an order quashing an apparently unfiled “Notice of Removal” and

“Summons and Complaint,” which purported to remove the action to the “Federal



      1
       A number of additional parties, including Chase Manhattan Mortgage
Corp. and several individual attorneys, were subsequently joined as defendants
and submitted separate briefs on appeal. For the sake of convenience, we refer to
both sets of defendants collectively as “Defendants.”

                                         -2-
Tribal Circuit Court” for the Pembina Nation Little Shell Band. The Mulders

filed a notice of appeal on March 9.

       This Court has jurisdiction over the appeal. A notice of appeal in a civil

case where the United States is not a party must be filed within 30 days of the

date of entry of judgment, Fed. R. App. P. 4(a)(1)(A), and an unfiled notice of

“removal” to another court does not extend the time to file a notice of appeal, see

Fed. R. App. P. 4(a)(4)(A). For a motion to dismiss under Rule 12(b), however,

entry of judgment does not take place until it is “set forth on a separate

document” or when 150 days have run from entry in the civil docket. Fed. R. Civ.

P. 58(b)(2). In this case, the Plaintiffs filed a notice of appeal 57 days after the

district court dismissed their action. Because the district court did not set forth

its judgment on a separate document, entry of judgment had not yet occurred and

filing of the notice of appeal was timely.

       Nonetheless, we do not reach the merits of the Mulders’ claims because

they lack standing to assert them in federal court. Article III limits federal courts

to hearing “cases” or “controversies,” which requires the following: (1) that the

plaintiff “suffered an ‘injury in fact’—an invasion of a legally protected interest

which is (a) concrete and particularized and (b) actual or imminent, not

conjectural or hypothetical”; (2) that the injury is “fairly . . . trace[able] to the

challenged action of the defendant”; and (3) that it is “likely, as opposed to


                                            -3-
merely speculative, that the injury will be redressed by a favorable decision.”

Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61 (1992) (internal quotation

marks omitted). We review de novo a district court’s dismissal with prejudice for

lack of standing. See United States v. Colo. Supreme Ct., 87 F.3d 1161, 1164

(10th Cir. 1996). In this case, as the complaint acknowledges, the Mulders

surrendered title to both parcels to the Pembina Nation Little Shell Band of North

America. The quitclaim deeds signed by the Mulders relinquished “all the right,

title, interest and claim . . . in and to” the properties. App. 24. Accordingly, the

sale, transfer, or conveyance of the properties would not cause any “injury in

fact” to the Mulders. Further, the injunctive relief requested in the complaint

would not redress any injury to the Mulders. The Mulders lack standing to enjoin

the Defendants from taking action against a third party regarding parcels of land

they no longer own.

      Moreover, the Mulders do not enjoy sovereign immunity on the facts set

forth in the complaint. Tribal sovereign immunity inheres in the tribe itself, not

in individual tribe members acting in their capacity as individuals. See Puyallup

Tribe, Inc. v. Dep’t of Game of State of Wash., 433 U.S. 165, 173 (1977)

(“[T]ribal sovereign immunity . . . does not impair the authority of the state court

to adjudicate the rights of the individual [tribal member] defendants over whom it

properly obtained personal jurisdiction.”); Fletcher v. United States, 116 F.3d


                                          -4-
1315, 1324 (10th Cir. 1997) (noting that tribal officials, like state and federal

officials, are protected by sovereign immunity only when acting in their official

capacity). Here, the Mulders as individuals entered into loan agreements

regarding the two parcels of land, and their default prompted the Defendants to

initiate nonjudicial foreclosure proceedings. According to the complaint, the

Pembina Nation Little Shell Band of North America now owns the properties, but

it is not a party to this action. The Mulders are not an Indian tribe, and therefore

they cannot assert tribal sovereign immunity as a basis for injunctive relief

against the Defendants.

      The parties have presented three additional motions on appeal. First, the

Mulders have submitted a “Motion to Vacate Void Judgments” of the district

court, apparently objecting to the order that quashed their “Notice of Removal” to

the “Federal Tribal Circuit Court” of the Pembina Nation Little Shell Band of

North America. We note that the Bureau of Indian Affairs does not recognize this

tribe or its courts. See Indian Entities Recognized and Eligible to Receive

Services from the United States Bureau of Indian Affairs, 65 Fed. Reg. 13,298

(Mar. 13, 2000). Further, as the district court held, the motion was improperly

filed, and no device exists under federal law for “removing” a case to tribal court

after dismissal with prejudice.




                                          -5-
      Second, the Mulders have submitted an “Amended Notice to Submit for

Decision,” which asserts that because the Defendants failed to respond within five

days to “a challenge” issued in their reply brief to produce the original promissory

notes, the Defendants have no legal basis for foreclosure and automatically lose

the lawsuit. In fact it is the Mulders who lack any legal basis for their

“challenge,” which flouts the Federal Rules of Civil Procedure.

      Third, the Defendants have submitted a motion for an award of costs and

attorney fees for defending a frivolous appeal. This Court is authorized to grant

such motions, even against pro se appellants. See Haworth v. Royal, 347 F.3d

1189, 1192 (10th Cir. 2003). Yet we typically awards costs and attorney fees only

in response to serious and sustained abuses. In Haworth, for example, the pro se

appellant had advance notice that the Defendants would pursue sanctions in the

event of an appeal, and she had filed repeated frivolous actions and motions, both

in state and federal court. Id. at 1191–92. Although we sympathize with the

Defendants in this case, who were forced to decipher and respond to sometimes

frivolous and often incomprehensible legal arguments, we do not think the

Mulders’ conduct amounts to a serious abuse of the appellate process. We

therefore decline to award costs and attorney fees.

      We AFFIRM the judgment of the district court dismissing the action with

prejudice for lack of standing. We DENY the Plaintiffs’ Motion to Vacate Void


                                          -6-
Judgments. We DENY both sets of Defendants’ motions for an award of

damages, costs and fees.



                                          Entered for the Court


                                          Michael W. McConnell
                                          Circuit Judge




                                    -7-
