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

                       FOR THE TENTH CIRCUIT           October 16, 2012
                                                      Elisabeth A. Shumaker
                                                          Clerk of Court
ALISON MAYNARD and
GERALD LEWIS,

         Plaintiffs-Appellants,

v.                                              No. 11-1207
                                   (D.C. Nos. 1:09-CV-02052-JLK-MEH,
THE COLORADO SUPREME COURT              1:10-CV-01850-JLK-MEH,
OFFICE OF ATTORNEY                         1:11-CV-00901-JLK)
REGULATION COUNSEL; APRIL                        (D. Colo.)
McMURREY; JOHN GLEASON;
JAMES COYLE; COLORADO
SUPREME COURT; MARY
MULLARKEY; GREGORY J. HOBBS,
JR.; NANCY RICE; MICHAEL
BENDER; NATHAN BEN COATS;
ALEX MARTINEZ; ALLISON EID,

         Defendants-Appellees,

and

WILLIAM LUCERO; DAVID R. LASS;
KAREN ROMERO; THOMAS W.
OSSOLA; GILBERT ROMAN; JERRY
JONES; GALE MILLER; VICTOR
BOOG; ROBERT SWENSON; BRUCE
E. ANDERSON; JUDITH ANDERSON;
GLENN PORZAK; DON KNOX;
NELSON LANE; CIRCUIT MEDIA,
LLC; REBECCA C. ALEXANDER;
GARY MAGNESS; MICHAEL C.
SCHAEFER; MICHAEL A.
MARTINEZ,

         Consolidated
         Defendants-Appellees.
                            ORDER AND JUDGMENT *          0F




Before BRISCOE, Chief Judge, PORFILIO, Senior Circuit Judge, and MURPHY,
Circuit Judge.


      This appeal arises from a District of Colorado proceeding encompassing

three consolidated cases: lead case No. 09-CV-2052 (Case #1), brought by

Alison Maynard and Gerald Lewis; No. 10-CV-1850 (Case #2), also brought by

Maynard and Lewis; and No. 11-CV-901 (Case #3), brought by Maynard alone. All

three cases involve issues related to Maynard’s disciplinary suspension from the

practice of law in Colorado, as well as issues surrounding other state-court litigation

in which Maynard represented Lewis and others. Plaintiffs appeal from two orders

entered in the three consolidated cases: the September 2009 denial of preliminary

injunctive relief in Case #1 and the April 2011 dismissal in Case #3. Plaintiffs also

request a writ of mandamus and/or prohibition, asking this court to remove

Senior District Judge John L. Kane from the district court proceedings and to nullify

all of his rulings. We conclude that the challenges to the denial of preliminary

injunctive relief are moot and that, through inadequate briefing, Maynard has waived
*
      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.


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any challenge to the dismissal of Case #3. We decline to consider the request for

extraordinary relief.

                                      Background

      Maynard and Lewis filed Case #1 in August 2009, seeking declaratory and

injunctive relief with regard to attorney disciplinary proceedings against Maynard.

Along with the complaint, plaintiffs filed a motion for a preliminary injunction.

After holding a hearing, the district court denied a preliminary injunction by order

dated September 8, 2009. The district judge later recused himself, and the case went

through several reassignments due to additional recusals.

      In August 2010, Maynard and Lewis filed Case #2, which contained similar

claims to Case #1 but requested money damages as well as injunctive relief. After

several months of proceedings, the district judge assigned to Case #2 recused herself.

After more reassignments, in March 2011, Chief District Judge Wiley Y. Daniel

assigned both cases to Judge Kane.

      On March 29, 2011, Judge Kane issued an order (1) consolidating Case #1 and

Case #2; (2) striking the complaints without prejudice in both cases because they

facially violated Fed. R. Civ. P. 8(a)(1) and (a)(2); and (3) referring the cases to a

magistrate judge for proceedings to clarify the background and issues. Judge Kane

ordered the parties to attend a status conference with the magistrate judge to discuss

plaintiffs’ claims. He further directed the magistrate judge to issue a report and

recommendation as to whether plaintiffs were in a position to file an amended


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consolidated complaint. And he stated that he would not entertain a motion to file an

amended complaint until the conditions set forth in the order were satisfied.

      A week after Judge Kane’s March 29 order, Maynard filed Case #3. In

addition to the complaint, she filed a “New and Renewed Application for Temporary

Restraining Order and Preliminary Injunction,” seeking to renew the motion for a

preliminary injunction that was denied in Case #1 in September 2009 and moving for

preliminary injunctive relief in Case #3. Maynard also moved to consolidate Case #3

with the consolidated Cases #1 and #2.

      The next day, April 7, 2011, Judge Kane granted the motion to consolidate.

But he struck the complaint and dismissed Case #3 with prejudice because it was “yet

another attempt to rehash matters that have either already been decided or are already

before the Court in Civil Action 09-cv-2052-JLK.” R. Vol. 1 at 2025. He declared

that the action was subject to striking under Fed. R. Civ. P. 12(f) because it “contains

only redundant, immaterial, and impertinent matters,” and that it was also subject to

striking “to the extent it constitutes an attempt to circumvent [the] March 29, 2011

Order striking Plaintiffs’ complaints in 09-cv-2052-JLK and 10-cv-1850-JLK and

requiring them to participate meaningfully in a status conference . . . before

continuing to pursue their claims in 09-cv-2052-JLK.” Id. The order did not decide

the motion for injunctive relief.

      On May 6, 2011, Maynard and Lewis commenced this appeal by filing a

“Petition for Extraordinary Writs, and Notice of Appeal.” Thereafter, the magistrate


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judge issued a comprehensive report and recommendation in which he recommended

that the district court deny leave to file an amended consolidated complaint. In

July 2012, Judge Kane adopted the report and recommendation and dismissed the

case with prejudice, concluding that “no purpose would be served by allowing

Plaintiffs to file what would be an ineffective Consolidated Amended Complaint that

failed to state any viable, actionable claims against the Defendants.” Supp. R. Vol. 1

at 77. The district court entered final judgment in favor of the defendants on

August 3, 2012.

       Because this appeal was filed and briefed while Cases #1 and #2 were still

pending in the district court, many of the parties’ arguments concern this court’s

jurisdiction to hear an interlocutory appeal. The entry of final judgment has mooted

the issue of interlocutory jurisdiction. But neither Maynard nor Lewis have filed a

notice of appeal from the final judgment, and the time for taking an appeal has

expired. Having failed to file a timely notice of appeal of the final judgment,

plaintiffs cannot challenge such judgment. See Nolan v. U.S. Dep’t of Justice,

973 F.2d 843, 846-47 (10th Cir. 1992). Accordingly, this appeal concerns only the

orders challenged by plaintiffs that existed at the time plaintiffs filed their notice of

appeal. See id. at 846.




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                                      Discussion

      A. Injunctive Relief in Cases #1 and #3.

      Plaintiffs appeal the district court’s September 2009 denial of the motion for a

preliminary injunction in Case #1. They also attack the district court’s failure to

decide the “New and Renewed Application for Temporary Restraining Order and

Preliminary Injunction.” The district court’s dismissal of the entire action, however,

moots plaintiffs’ challenge to the denial of preliminary injunctive relief. See Shaffer

v. Carter, 252 U.S. 37, 44 (1920) (stating, “the denial of the interlocutory application

[for injunctive relief] was merged in the final decree” and dismissing appeal of such

denial); Baker v. Bray, 701 F.2d 119, 122 (10th Cir. 1983) (stating that the dismissal

of the claim underlying the request for a preliminary injunction “certainly mooted”

the appeal of the preliminary injunction). Accordingly, the portions of the appeal

challenging the district court’s handling of plaintiffs’ requests for preliminary

injunctive relief are dismissed as moot.

      B. Dismissal Order in Case #3.

      Maynard also purports to appeal the district court’s dismissal of her complaint

in Case #3. The background section of plaintiffs’ opening brief lays out certain facts

comparing Cases #1 and #2 with #3. But the summary of the argument merely states,

“I am entitled to immediate reinstatement of case 11 CV 901[,]” Aplt. Br. at 17, and

the argument section ignores the issue. In the conclusion, the brief states:

      I have not briefed the issue of the wrongful dismissal of 11 CV 901,
      because what else is there to say about it? Judge Kane obviously did

                                           -6-
       not even read my complaint. He had no authority to act as the
       defendants’ advocate and dismiss the case before it was even served on
       them, saying it was “the same case” as 09 CV 2052, which involves not
       a single one of the same defendants. He must be reversed and this case
       reinstated forthwith.

Id. at 23-24.

       These types of “conclusory allegations with no citations to the record or any

legal authority for support” result in a waiver on appeal. Garrett v. Selby Connor

Maddux & Janer, 425 F.3d 836, 841 (10th Cir. 2005); see also United States v.

Beckstead, 500 F.3d 1154, 1164-65 (10th Cir. 2007) (applying waiver when appellant

mentioned issue only in two section headings, a single sentence in summary, and two

phrases in arguments regarding another issue, and provided no citations); Christian

Heritage Acad. v. Okla. Second Sch. Activities Ass’n, 483 F.3d 1025, 1031 (10th Cir.

2007) (applying waiver when appellant identified issue in opening brief, but devoted

less than one page to it and provided “no other argument and no citations”). The

federal rules set standards for proper briefing, and even a pro se litigant has to

“follow the same rules of procedure that govern other litigants.” Garrett, 425 F.3d at

840-41 (internal quotation marks omitted). Moreover, Maynard is not a typical pro

se party who is unschooled in the law; she was admitted to the bar. Accordingly, the

question of whether the district court erred in dismissing the complaint in Case #3 is

waived for failure to adequately brief the issue.




                                          -7-
      C. Plaintiffs’ Request for a Writ of Mandamus and/or Prohibition.

      Plaintiffs further request that this court issue a writ of mandamus and/or

prohibition removing Judge Kane from the three cases and nullifying all of his

rulings. Plaintiffs argue that the transfer to Judge Kane in March 2011 was improper

because there was no random assignment as purportedly required by D. Colo. L.R.

40.1. According to plaintiffs, all of Judge Kane’s orders entered are therefore “void”

and the cases should be reinstated. Aplt. Br. at 7, 24.

      There is no proper petition for extraordinary relief before the court. Plaintiffs

object to the court’s handling of their “Motion for Writ of Prohibition and

Mandamus,” submitted under this appeal’s number in August 2011. Instead of filing

that motion in this appeal, the Clerk opened a new matter (No. 11-1363) and directed

plaintiffs to comply with the formalities attendant on opening a matter in this court.

When they failed to do so, the Clerk dismissed No. 11-1363 for failure to prosecute.

Plaintiffs now request that the “Motion for Writ of Prohibition and Mandamus” be

filed and decided in this appeal, as they originally intended. But plaintiffs were

afforded the opportunity to seek extraordinary relief through the proper channels,

which they declined to do. 1 We decline to allow them to abandon No. 11-1363 but
                           1F




then to attempt to seek extraordinary relief in this appeal.



1
      It appears that plaintiffs objected to paying a second filing fee. The Clerk,
however, specifically gave plaintiffs the opportunity to request leave to proceed
without prepayment of fees. Plaintiffs failed to avail themselves of that opportunity.


                                          -8-
      Moreover, at this point, there are no pending district court cases from which to

remove Judge Kane. As discussed, plaintiffs have not appealed from the final

judgment against them, and considering their request for mandamus relief in this

appeal would relieve them of that failure. “The extraordinary relief of a writ of

mandamus is not a substitute for an appeal, and it is not a vehicle to relieve persons

of the consequences of their . . . decision not to pursue available procedures and

remedies.” Weston v. Mann (In re Weston), 18 F.3d 860, 864 (10th Cir. 1994).

      Those portions of the appeal challenging the denial of preliminary injunctive

relief and seeking extraordinary relief are DISMISSED. The district court’s

dismissal of Case #3 is AFFIRMED. Plaintiffs’ “Motion to Vacate Case 11-1363,

and For Forthwith Ruling,” “Motion to Correct the Record,” and “Second Motion to

Correct the Record, and To Strike” are DENIED.


                                                Entered for the Court


                                                Michael R. Murphy
                                                Circuit Judge




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