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

                                    TENTH CIRCUIT                             December 4, 2012

                                                                             Elisabeth A. Shumaker
                                                                                 Clerk of Court
FABIAN TINNER,

               Plaintiff – Appellant,
                                                              No. 12-3115
v.                                                (D.C. No. 2:11-CV-02694-JTM-DJW)
                                                               (D. Kan.)
FARMERS INSURANCE COMPANY,
INC.,

               Defendant - Appellee.




                               ORDER AND JUDGMENT*


Before LUCERO, O'BRIEN, and MATHESON, Circuit Judges.


       Fabian Tinner, appearing pro se, appeals from the district court’s denial of his

various post-judgment motions.1 Because the district court correctly determined it lacked



       *
        The parties have waived oral argument. See Fed. R. App. P. 34(f); 10th Cir. R.
34.1(G). This case is submitted for decision on the briefs.
        This order and judgment is an unpublished decision, not binding precedent. 10th
Cir. R. 32.1(A). Citation to unpublished decisions is not prohibited. Fed. R. App. 32.1.
It is appropriate as it relates to law of the case, issue preclusion and claim preclusion.
Unpublished decisions may also be cited for their persuasive value. 10th Cir. R. 32.1(A).
Citation to an order and judgment must be accompanied by an appropriate parenthetical
notation B (unpublished). Id.
       1
           The district court granted Tinner leave to proceed on appeal without prepayment
of fees.
subject matter jurisdiction, we affirm.

                                    I. BACKGROUND

       Tinner had an auto insurance policy with Farmers Insurance Company (Farmers)

which provided uninsured motorist coverage. In April 2005, he was injured in a two-

vehicle car accident. Because the driver of the other vehicle was uninsured, Tinner filed

a claim with Farmers. After retaining counsel, Tinner settled with Farmers in 2009.

       In December 2011, Tinner filed the instant action against Farmers alleging

Farmers breached the insurance policy by (1) wrongfully paying a portion of the

settlement funds to a non-lienholder, (2) failing to pay him lost wages as a result of the

accident and (3) failing to pay his attorneys’ fees. In completing the “Jurisdiction”

section of the form complaint, he alleged diversity of citizenship based on his status as a

Kansas citizen and Farmers’ status as a citizen of Oklahoma. (R. at 6.) He also checked

the box indicating the “case arises because of a violation of the civil or equal rights,

privileges, or immunities accorded to citizens of, or persons within the jurisdiction of, the

United States (28 U.S.C. § 1343).” (Id. at 7.)

       Farmers filed a motion to dismiss for lack of subject matter jurisdiction under Rule

12(b)(1) of the Federal Rules of Civil Procedure.2 It attached a certificate from the

Kansas Secretary of State certifying it is incorporated under the laws of Kansas. Thus

Farmers claimed it is a Kansas citizen, not a citizen of Oklahoma. Because Tinner is also


       2
         Farmers also filed a motion for failure to state a claim upon which relief can be
granted under Rule 12(b)(6). Given our disposition of the case, we need not address this
motion.


                                             -2-
a citizen of Kansas, Farmers argued diversity of citizenship jurisdiction did not exist.

Moreover, because Tinner had not alleged any facts giving rise to a civil rights violation,

Farmers asserted 28 U.S.C. § 1343 was inapplicable and federal question jurisdiction was

lacking.

       Tinner filed a “Motion in Response for Evidentiary Hearing as a Matter of Law”

pursuant to Rule 50(a) of the Federal Rules of Civil Procedure. (Id. at 36.) Among other

things, Tinner claimed Farmers had initially paid him one month of lost wages but

stopped payment in breach of the policy thereby “depriving [him of] due process [and]

equal enforcement of rights, privileges, and immunities[.]” (Id.) Tinner further claimed

Farmers acted in bad faith in accepting his monthly premium for insurance coverage yet

denying his claim and requiring him to retain legal counsel to settle it. He claimed those

acts were “deliberately done, because of my racial status.” (Id. at 39.) In addressing the

court’s jurisdiction, Tinner did not discuss diversity of citizenship jurisdiction, instead he

claimed the court had jurisdiction under § 1343.

       The district court granted Farmers’ motion, noting Tinner had not filed a timely

response to the motion. It agreed with Farmers that both diversity and federal question

jurisdiction were lacking. Judgment was entered the same day.

       Tinner filed various post-judgment motions including (1) a Motion for New Trial,

arguing the court erred in granting Farmers’ motion without ruling on his Rule 50(a)

motion wherein he alleged constitutional deprivations; (2) a Motion for Relief from

Judgment, claiming he responded to Farmers’ motion to dismiss and it was the Clerk of

the Court which mistakenly informed the court no response had been filed; and (3) a

                                             -3-
Motion for Writ of Execution requesting a court order directing Farmers to submit a

check to him for the alleged due process, equal protection and breach of contract claims

and for his lost wages and attorneys’ fees. He also requested hearings on each motion.

       The district court denied the motions. While Tinner filed a response to Farmers’

motion to dismiss, the court determined the response was not timely under its local rules

and Tinner had failed to seek an extension of time. In any event, the court concluded

Tinner’s response, which it viewed as Tinner’s attempt to “repackage” his state law

claims into federal civil rights claims, lacked merit. (Id. at 117.) It determined Tinner’s

complaint was “utterly devoid of any suggestion of federal question jurisdiction” and

only alleged state law claims. (Id.) Accordingly, dismissal for lack of jurisdiction was

proper and post-judgment relief was unwarranted.

       Still not satisfied, Tinner filed a motion to alter or amend judgment and a motion

for a hearing. The district court denied both motions, threatening sanctions if Tinner

continued to file frivolous motions challenging the dismissal of the case.

                                    II. DISCUSSION

       Neither Tinner’s original notice of appeal nor his amended notice of appeal

designate the district court’s order granting Farmers’ motion to dismiss as the order from

which his appeal was taken. Rather, both notices are limited to seeking review of the

court’s orders denying his post-judgment motions. Therefore, we lack jurisdiction to

review the district court’s decision granting Farmers’ motion to dismiss and our review is

limited to the court’s denial of Tinner’s post-judgment motions. See Foote v. Spiegel,

118 F.3d 1416, 1422 (10th Cir. 1997) (stating we have jurisdiction to address only those

                                            -4-
issues raised in the notice of appeal); see also Fed. R. App. P. 3(c)(1)(B) (stating the

notice of appeal must designate the judgment or order being appealed). We review for

abuse of discretion the denial of motions to alter or amend judgment and motions for

relief from judgment. Butler v. Kempthorne, 532 F.3d 1108, 1110 (10th Cir. 2008).

Nevertheless, because the district court denied Tinner’s post-judgment motions based on

its conclusion it lacked jurisdiction, the resolution of this appeal turns on the

jurisdictional inquiry.

       Federal courts are courts of limited jurisdiction and possess only that power

authorized by the Constitution and federal statute. Kokkonen v. Guardian Life Ins. Co. of

Am., 511 U.S. 375, 377 (1994). “The party invoking federal jurisdiction bears the burden

of establishing such jurisdiction.” Radil v. Sanborn W. Camps, Inc., 384 F.3d 1220, 1224

(10th Cir. 2004). “Where a party attacks the factual basis for subject matter jurisdiction,

the court does not presume the truthfulness of factual allegations in the complaint, but

may consider evidence to resolve disputed jurisdictional facts.” Id.

A.     Diversity of Citizenship Jurisdiction

       District courts have original jurisdiction of all civil actions “where the matter in

controversy exceeds the sum or value of $75,000 . . . and is between . . . citizens of

different States.” See 28 U.S.C. § 1332(a)(1). “Under 28 U.S.C. § 1332(a) the

citizenship of all defendants must be different from the citizenship of all plaintiffs.”

McPhail v. Deere & Co., 529 F.3d 947, 951 (10th Cir. 2008). For purposes of § 1332, a

corporation is deemed to be a “citizen of every State . . . by which it has been

incorporated and of the State . . . where it has its principal place of business.” 28 U.S.C.

                                             -5-
§ 1332(c)(1).

       Undisputedly, Tinner is a citizen of Kansas. In support of its Rule 12(b)(1) motion

to dismiss, Farmers provided a certificate from the Kansas Secretary of State

demonstrating it is incorporated under the laws of Kansas. Tinner does not dispute this

evidence. Indeed, he does not contest the lack of diversity jurisdiction in his opening

brief. It is not until his reply brief3 that he points to correspondence he received from

Farmers which lists Farmers’ address as a post office box in Oklahoma City, Oklahoma.

We generally do not review issues raised for the first time in a reply brief. Stump v.

Gates, 211 F.3d 527, 533 (10th Cir. 2000). Nevertheless, Farmers’ office in Oklahoma

does not undermine the fact that it is incorporated under the laws of Kansas and therefore

is considered a “citizen” of Kansas under 28 U.S. § 1332(c)(1). Because both Tinner and

Farmers are citizens of Kansas, diversity of citizenship jurisdiction is lacking.

B.     Federal Question Jurisdiction

       The district courts have “original jurisdiction over all civil actions arising under

the Constitution, laws, or treatises of the United States.” 28 U.S.C. § 1331. For a case to

arise under federal law within the meaning of § 1331, the plaintiff’s “well-pleaded

complaint” must establish either: (1) “federal law creates the cause of action” or (2) “the

plaintiff’s right to relief necessarily depends on resolution of a substantial question of

federal law.” Firstenberg v. City of Santa Fe, N.M., 696 F.3d 1018, 1023 (10th Cir.


       3
         After Farmers filed its responsive brief, Tinner filed another opening brief and
appendix. We construe this brief as a reply brief. Although the reply brief and appendix
are untimely, we will allow them to be filed out of time.


                                             -6-
2012). “[O]ur task is to look to the face of the complaint . . . and ask, is it drawn so as to

claim a right to recover under the Constitution and laws of the United States?” Id.

(citation and quotations omitted). A “complaint must identify the statutory or

constitutional provision under which the claim arises, and allege sufficient facts to show

that the case is one arising under federal law.” Martinez v. U.S. Olympic Comm., 802

F.2d 1275, 1280 (10th Cir. 1986).

       The crux of Tinner’s complaint, which he did not seek to amend, is a state-law

cause of action based on breach of contract and fraud. “Federal law neither created this

cause of action nor is federal law a necessary element of it. It is purely a state-law

claim.” Firstenberg, 696 F.3d at 1025. The only mention of a federal claim in the

complaint consists of a checkmark next to 28 U.S.C. § 1343 as a basis for jurisdiction.

While § 1343 gives district courts original jurisdiction over civil rights claims, Tinner’s

complaint is utterly devoid of any such claims or any facts supporting such claims.4 See

Martinez, 802 F.2d at 1280 (holding complaint alleging common-law negligence and


       4
           28 U.S.C. § 1343 provides in relevant part:

       (a) The district courts shall have original jurisdiction of any civil action authorized
       by law to be commenced by any person:

       ....

       (3) To redress the deprivation, under color of any State law, statute, ordinance,
       regulation, custom or usage, of any right, privilege or immunity secured by the
       Constitution of the United States or by any Act of Congress providing for equal
       rights of citizens or of all persons within the jurisdiction of the United States;

       (4) To recover damages or to secure equitable or other relief under any Act of
       Congress providing for the protection of civil rights, including the right to vote.


                                             -7-
merely alleging federal constitutional rights “were violated” and “substantial federal

questions [were] involved” did not satisfy well-pleaded complaint rule); see also Okla.

High Sch. Athletic Ass’n v. Bray, 321 F.2d 269, 273 (10th Cir. 1963) (“[T]he potential

jurisdiction of the Civil Rights Act cannot be used as a sham for a review of the acts of [a

defendant] which do not involve a civil right.”).

       Tinner’s “response” to Farmers’ motion to dismiss (i.e., his Rule 50(a) motion) did

not save the complaint for two reasons. First, the “response” was untimely. Second,

even if it is considered, it is clearly, as the district court concluded, an attempt by Tinner

to “repackage” his state law claims into federal civil rights claims in order to avoid

dismissal. (R. at 117.) See Bell v. Hood, 327 U.S. 678, 682 (1946) (“[A] suit may

sometimes be dismissed for want of jurisdiction where the alleged claim under the

Constitution or federal statutes clearly appears to be immaterial and made solely for the

purpose of obtaining jurisdiction . . . .”).

       We recognize we must read Tinner’s pro se complaint liberally:

       However,the generous construction that we afford pro se pleadings has
       limits, and we must avoid becoming the plaintiff’s advocate. Though we
       do not hold the pro se plaintiff to the standard of a trained lawyer, we
       nonetheless rely on the plaintiff’s statement of his own cause of action.
       Thus, we may not re-write a complaint to include claims that were never
       presented.

Firstenberg, 696 F.3d at 1024 (assuming liberal-construction rules applicable to pro se

complaints also apply to determining whether pro se complaint presents a federal

question) (citations and quotations omitted).

       The district court properly dismissed Tinner’s complaint for lack of subject matter



                                               -8-
jurisdiction. See Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 95 (1998)

(“‘Without jurisdiction the court cannot proceed at all in any cause. Jurisdiction is power

to declare the law, and when it ceases to exist, the only function remaining to the court is

that of announcing the fact and dismissing the cause.’”) (quoting Ex parte McCardle, 74

U.S. 506, 514 (1868)). Thus its denial of Tinner’s post-judgment motions was also

proper.

       AFFIRMED.

                                          Entered by the Court:

                                          Terrence L. O’Brien
                                          United States Circuit Judge




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