                                                                      FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                  July 20, 2011
                   UNITED STATES COURT OF APPEALS
                                                Elisabeth A. Shumaker
                                                                   Clerk of Court
                           FOR THE TENTH CIRCUIT


    ANDREW C. GROSSMAN,

              Plaintiff-Appellant,

    v.                                                 No. 10-6252
                                                (D.C. No. 5:10-CV-00329-L)
    FANNIE MAE; EICHLER, FAYNE, &                      (W.D. Okla.)
    ASSOCIATES, a/k/a EF&A Funding,
    LLC, d/b/a Alliant Capital, LLC,

              Defendants-Appellees,

    and

    BYRON STEENERSON,

              Defendant.


                           ORDER AND JUDGMENT *


Before O’BRIEN, ANDERSON, and HOLMES, Circuit Judges.




*
       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not binding precedent, except under the doctrines of law of the case, res judicata,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.
      Plaintiff-Appellant Andrew C. Grossman filed a complaint against

Defendants-Appellees in Oklahoma state court alleging: (1) “Wrongful

Foreclosure & Intentional Impairment of Value of Collateral & Right to Credit,”

(2) “Breach of Contract, Including Breach of Covenant of Good Faith and Fair

Dealing,” (3) “Fraud Claim – Intentional Misrepresentation or Constructive

Fraud,” (4) “Prima Facie Tort,” (5) “Violation of Oklahoma Consumer Protection

Act [OCPA],” and (6) “Conspiracy.” Aplt. App. at 8, 14, 19-21.

Defendants-Appellees removed the case to federal court on the basis of diversity

jurisdiction and filed a motion to dismiss the complaint for failure to state a claim

under Fed. R. Civ. P. 12(b)(6). They asserted Grossman’s complaint was nothing

more than an attempt to re-litigate matters already concluded in a separate

Oklahoma state court foreclosure action and, as such, all of his claims were

barred by claim and issue preclusion. In addition, they argued Grossman had

failed to identify a specific contract or contract terms that were breached, his

fraud and conspiracy claims were barred by the statute of limitations (and were

not alleged with the requisite particularity), there is no cause of action for “Prima

Facie Tort” in Oklahoma, the OCPA is inapplicable to Grossman’s complaints,

and he lacked standing to assert “Wrongful Foreclosure & Intentional Impairment

of Value of Collateral & Right to Credit.” Grossman filed a self-styled

“Objection” to the motion to dismiss and Defendants-Appellees replied.




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      The district court granted Defendants-Appellees’ motion to dismiss, finding

Grossman’s claims barred by claim and issue preclusion since they “were actually

decided or could have been decided in the Foreclosure Action.” Grossman v.

Fannie Mae, No. CIV-10-329-L, 2010 WL 3895757, at *4 (W.D. Okla. Sept. 30,

2010). The court continued: “However, were the court to consider defendants’

remaining arguments, the court finds that they would provide an alternative basis

for dismissal of plaintiff’s action.” Id. at *5. Grossman appeals.

      Our jurisdiction arises under 28 U.S.C. § 1291. The parties are familiar

with the facts and procedural history of this case, and we need not restate either

here. See Grossman, 2010 WL 3895757, at *2-3. On appeal, Grossman provides

an undifferentiated regurgitation of the assertions he made in his “Objection” to

the motion to dismiss. 1 He argues (1) issue and claim preclusion are inapplicable,

(2) Oklahoma recognizes a claim for wrongful execution or wrongful foreclosure,

(3) he stated a claim for breach of duty of good faith and fair dealing, (4) he


1
       We note neither Grossman’s Appendix nor Defendants-Appellees’
Supplemental Appendix contains Defendants-Appellees’ motion to dismiss,
Grossman’s “Objection” to the motion to dismiss, or Defendants-Appellees’ reply
to the “Objection.” It is the appellant’s duty to “file an appendix sufficient for
considering and deciding the issues on appeal,” 10th Cir. R. 30.1(A)(1), including
copies of relevant motions and any responses or replies filed in connection with
the motions, 10th Cir. R. 10.3(D)(2). See also 10th Cir. R. 30.2(A)(1) (an
appellee may file a supplemental appendix to add “items that should be
included”). Although the omitted documents are available electronically—and we
have accessed and reviewed them—we caution that such availability does not
negate the appellant’s responsibility to provide an adequate appendix. Burnett v.
Sw. Bell Tel., L.P., 555 F.3d 906, 908 (10th Cir. 2009).

                                         -3-
stated claims for fraud and conspiracy and included sufficient allegations of

conspiracy, (5) the statute of limitations does not bar his fraud and conspiracy

claims, and (6) the district court erred by dismissing his entire case with

prejudice.

      We review de novo a district court’s dismissal under Rule 12(b)(6).

See Christy Sports, LLC v. Deer Valley Resort Co., 555 F.3d 1188, 1191

(10th Cir. 2009). “To survive a motion to dismiss, a complaint must contain

sufficient factual matter, accepted as true, ‘to state a claim to relief that is

plausible on its face.’” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial

plausibility when the plaintiff pleads factual content that allows the court to draw

the reasonable inference that the defendant is liable for the misconduct alleged.”

Id. at 1949. Although the complaint need not recite “detailed factual allegations,

. . . the [f]actual allegations must be enough to raise a right to relief above the

speculative level.” Christy Sports, LLC, 555 F.3d at 1191 (internal quotation

marks omitted). Because this is a diversity case, we apply federal law to

procedural questions, but “the substantive law of the forum state governs the

analysis of the underlying claims.” Haberman v. Hartford Ins. Grp., 443 F.3d

1257, 1264 (10th Cir. 2006). Thus, we review de novo the district court’s

application of Oklahoma law in assessing the preclusive effect of an Oklahoma




                                           -4-
state court judgment. See Valley View Angus Ranch, Inc. v. Duke Energy Field

Servs., Inc., 497 F.3d 1096, 1100 (10th Cir. 2007).

      We have undertaken a thorough review of the parties’ briefs, the record,

and the applicable law and conclude Mr. Grossman has not shown any reversible

error in this case. Accordingly, we AFFIRM the judgment of the district court for

substantially the same reasons stated in its order granting Defendants-Appellees’

motion to dismiss for failure to state a claim.


                                                      Entered for the Court



                                                      Terrence L. O’Brien
                                                      Circuit Judge




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