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

                           FOR THE TENTH CIRCUIT                  July 23, 2019
                       _________________________________
                                                              Elisabeth A. Shumaker
                                                                  Clerk of Court
JON A. GOODWIN,

     Plaintiff - Appellant,

v.                                                     No. 18-1325
                                          (D.C. No. 1:16-CV-00751-CMA-KLM)
MARCIA ANN BRUGGEMAN HATCH;                             (D. Colo.)
SEAMUS JOHN PAUL HATCH;
MICHAEL DOUGLAS BOCK;
ARAN STRATEGIC FINANCE, LLC;
GUNDERSON DETTMER STOUGH
VILLENEUVE FRANKLIN &
HACHIGIAN, LLP; ROBERT V.
GUNDERSON, JR.; SCOTT CHARLES
DETTMER; THOMAS F. VILLENEUVE;
DANIEL JURG NIEHANS; DANIEL E.
O’CONNOR; KENNETH ROBERT
MCVAY; IVAN ALEXANDER
GAVIRIA; JOHNSON & JOHNSON,
LLP; NEVILLE LAWRENCE JOHNSON;
DOUGLAS LOWELL JOHNSON;
JONATHAN MARTIN TURCO; LAN
PHONG VU; DIANA BIAFORA
SPARAGNA; TINA LOUISE
SCATUORCHIO-GOODWIN; BARRY S.
LEVIN; MATTHEW LLOYD
LARRABEE; ROBERT A. ESPEN;
DAVID MARK JARGIELLO; RAMSEY
& EHRLICH, LLP; MILES FREDERICK
EHRLICH; ISMAIL JOMO RAMSEY;
FOLGER LEVIN KAHN, LLP;
MICHAEL ALEXANDER KAHN; JOHN
DANIEL SHARP; DENELLE MARIE
DIXON-THAYER; HELLER EHRMAN
LLP (CALIFORNIA); LEWIS ROCA
ROTHGERGER CHRISTIE LLP;
FREDERICK JAMES BAUMANN;
ALEX C. MYERS; VLG INVESTMENTS
 LLC; VLG INVESTMENTS 2006 LLC;
 VLG INVESTMENTS 2007 LLC; VLG
 INVESTMENTS 2008 LLC; HEWM
 INVESTORS, LLC; HEWM INVESTORS
 II, LLC; HEWM/VLG INVESTMENTS,
 LLC; DOES 1-100,

       Defendants - Appellees.
                      _________________________________

                           ORDER AND JUDGMENT*
                       _________________________________

Before HOLMES, BACHARACH, and McHUGH, Circuit Judges.
                  _________________________________

      Jon A. Goodwin, proceeding pro se, appeals from the district court’s dismissal

of his claims against numerous defendants. Exercising jurisdiction under 28 U.S.C.

§ 1291, we affirm.

                                  BACKGROUND

      Effective at the end of 2001, Mr. Goodwin and defendants Seamus Hatch and

Michael Bock entered into a limited liability company agreement for Barra Partners,

LLC. In the fall of 2003, Messrs. Hatch and Bock terminated Mr. Goodwin’s

participation in Barra Partners. Mr. Goodwin disputes that they acted properly under

the limited liability company agreement. He alleges that they, as well as associated



      *
        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.
                                          2
individuals and entities (including Mr. Hatch’s wife Marcia Hatch), “are extorting

and have defrauded, and otherwise tortuously [sic] injured [him] by means of a

single, continuous plan of extortion . . . to obtain tens of millions of dollars of

property from him, Barra Partners, LLC, and its affiliates[.]” Aplt. Opening Br. at 2.

For their part, defendants assert Mr. Goodwin “has undertaken a 10-year campaign to

harass and intimidate Marcia Hatch, Seamus Hatch, and the law firms where

Ms. Hatch has worked or sought legal advice.” Aplee. Resp. Br. at 1. Ms. Hatch

obtained injunctions against Mr. Goodwin from California state courts in 2007 and

2011. The 2011 judgment also awarded more than a million dollars in damages.

       In October 2013, Mr. Goodwin filed suit in the United States District Court for

the District of Colorado, case number 13-CV-02973 (the 2013 Action).1 Naming

66 defendants, the 2013 Action invoked the Racketeer Influenced and Corrupt

Organizations Act (RICO), the Colorado Organized Crime Control Act (COCCA),

42 U.S.C. §§ 1983 and 1985(3), and state-law torts. The district court dismissed the

claims against some defendants on the merits and against other defendants for lack of

personal jurisdiction. It also denied leave to amend to add new defendants.

       While the 2013 Action was pending, Ms. Hatch sought to enforce the 2011

California judgment in Colorado state court. Mr. Goodwin unsuccessfully moved the




       1
         We may take judicial notice of the filings in the 2013 Action. See United
States v. Duong, 848 F.3d 928, 930 n.3 (10th Cir. 2017) (taking judicial notice of
filings in related district court action).
                                             3
Colorado state district court for relief from the California judgment, and the Colorado

Court of Appeals affirmed.

      In March 2016, Mr. Goodwin filed the instant suit against 41 named

defendants and 100 Doe defendants. The pleading underlying this appeal is the

Second Amended Complaint, which presented claims for violations of RICO and

COCCA, a fraudulent scheme, breach of fiduciary duty, breach of contract, tortious

interference, abuse of process, extortion, violations of 42 U.S.C. § 1983 (alleging

infringements of Mr. Goodwin’s constitutional rights in the California and Colorado

actions), fraud upon the California state courts, and civil conspiracy.

      The district court dismissed the § 1983 and fraud-upon-the-court claims under

the Rooker-Feldman doctrine. See D.C. Ct. of Appeals v. Feldman, 460 U.S. 462

(1983); Rooker v. Fid. Tr. Co., 263 U.S. 413 (1923). It further dismissed the claims

against twelve named defendants under the doctrine of claim preclusion, based on the

judgment in the 2013 Action. (The twelve defendants are composed of a group of

eight defendants (the Eight Defendants2) and another group of four defendants (the

Four Defendants3), collectively the Claim Preclusion Defendants.) And it dismissed

the claims against another twenty-two defendants (the Issue Preclusion Defendants4)


      2
        The Eight Defendants are Marcia Bruggeman-Hatch, Seamus Hatch,
Michael Bock, Aran Strategic Finance, LLC, Tina Louise Scatuorchio-Goodwin,
Jonathon Turco, Diana Sparagna, and Gunderson Dettmer Stough Villeneuve
Franklin & Hachigan.
      3
        The Four Defendants are Ismail Ramsey, Lewis Roca Rothgerber Christie
LLP, Frederick Baumann, and Alex Myers.
      4
        The Issue Preclusion Defendants are David Jargiello; Ramsey & Ehrlich,
LLP; Miles Ehrlich; Folger Levin & Kahn LLP; Michael Kahn; John Sharp;
                                           4
under the doctrine of issue preclusion. The 2013 Action had determined that the

Colorado federal court lacked personal jurisdiction over the Issue Preclusion

Defendants, and Mr. Goodwin had failed to identify any new facts showing the

federal court had acquired personal jurisdiction over those defendants. Mr. Goodwin

appeals from the Rooker-Feldman and preclusion determinations.

                                    DISCUSSION

I.    District Court Review

      Mr. Goodwin first argues that the district court did not conduct a de novo

review of the magistrate judge’s reports and recommendations, see 28 U.S.C.

§ 636(b)(1); Fed. R. Civ. P. 72(b)(3), because if it had, it would have ruled in his

favor. We reject this contention. “We assume that the district court performed its

review function properly in the absence of evidence to the contrary.” Green v.

Branson, 108 F.3d 1296, 1305 (10th Cir. 1997). And here there is no evidence to the

contrary. The district court issued its own thorough order analyzing the issues

involved in this appeal, in which it also expressly recognized its obligation to

conduct a de novo review of matters about which Mr. Goodwin had objected. Even

“a brief order expressly stating the court conducted de novo review is sufficient.”

Northington v. Marin, 102 F.3d 1564, 1570 (10th Cir. 1996).




Denelle Dixon-Thayer; Robert Gunderson; Scott Dettmer; Daniel O’Connor;
Kenneth McVay; Ivan Gaviria; Daniel Niehans; Thomas Villeneuve; Johnson &
Johnson, LLP; Neville Johnson; Douglas Johnson; Lan Vu; Heller Ehrman, A
Professional Corporation; Matthew Larrabee; Barry Levin; and Robert Epsen.
                                           5
II.   Rooker-Feldman Doctrine

      The district court dismissed claims 21 and 22 (deprivation of First and

Fourteenth Amendment rights during the California and Colorado state court

proceedings) and claims 24 and 25 (fraud upon the California courts) under the

Rooker-Feldman doctrine. “We review the application of the Rooker-Feldman

doctrine de novo.” Miller v. Deutsche Bank Nat’l Tr. Co. (In re Miller), 666 F.3d

1255, 1260 (10th Cir. 2012).

      The Rooker-Feldman doctrine precludes federal courts from hearing “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). Asserting that “the Complaint particularly alleges

defendants’ actions to fraudulently induce the state court into entering orders injuring

him,” Aplt. Opening Br. at 33, Mr. Goodwin argues that the doctrine should not

apply where a plaintiff alleges extrinsic fraud on the state court. As the district court

recognized, however, this court has not recognized an “extrinsic fraud” exception to

the Rooker-Feldman doctrine. See Tal v. Hogan, 453 F.3d 1244, 1256 (10th Cir.

2006) (“It is true that new allegations of fraud might create grounds for appeal, but

that appeal should be brought in the state courts.”).

      Mr. Goodwin further complains that the district court relied on non-binding

decisions. But Fed. R. App. P. 32.1 and 10th Cir. R. 32.1 allow citation of this



                                            6
court’s unpublished decisions for their persuasive value. Accordingly, the district

court’s reliance on unpublished decisions creates no ground for reversal.

III.   Claim Preclusion (Res Judicata)

       In the 2013 Action, the district court determined that Mr. Goodwin’s claims

either were barred by the applicable statutes of limitation or failed to state a claim,

and it entered judgment with prejudice in favor of the Eight Defendants. It further

denied Mr. Goodwin leave to amend to add claims against the Four Defendants, on

the ground of futility. In this action, therefore, the district court held that claim

preclusion barred claims 1 through 20 and claim 23 against the Claim Preclusion

Defendants. We review the district court’s application of claim preclusion de novo.

Campbell v. City of Spencer, 777 F.3d 1073, 1077 (10th Cir. 2014).

       “The doctrine of res judicata, or claim preclusion, will prevent a party from

litigating a legal claim that was or could have been the subject of a previously issued

final judgment.” Lenox MacLaren Surgical Corp. v. Medtronic, Inc., 847 F.3d 1221,

1239 (10th Cir. 2017) (internal quotation marks omitted). Claim preclusion has three

elements: “(1) a final judgment on the merits in an earlier action; (2) identity of

parties or privies in the two suits; and (3) identity of the cause of action in both

suits.” Id. (brackets and internal quotation marks omitted).5 Mr. Goodwin

challenges the first and third elements.



       5
         “In addition, even if these three elements are satisfied, there is an exception
to the application of claim preclusion where the party resisting it did not have a full
and fair opportunity to litigate the claim in the prior action.” Lenox MacLaren
                                             7
      A dismissal as untimely is a judgment on the merits for purposes of preclusion,

Murphy v. Klein Tools, Inc., 935 F.2d 1127, 1128-29 (10th Cir. 1991) (per curiam),

as is a dismissal for failure to state a claim, Stan Lee Media, Inc. v. Walt Disney Co.,

774 F.3d 1292, 1298 (10th Cir. 2014). Nevertheless, Mr. Goodwin argues that the

judgment in the 2013 Action was not a merits judgment because the district court did

not explicitly find that it had personal jurisdiction over the Eight Defendants.6 This

argument is meritless. A district court is not required, sua sponte, to explicitly

analyze personal jurisdiction over a defendant who does not contest personal

jurisdiction. The Eight Defendants were entitled to waive personal jurisdiction in the

2013 Action and seek a judgment on the merits—which they did. See Ruhrgas AG v.

Marathon Oil Co., 526 U.S. 574, 584 (1999) (“[A] party may insist that the [personal

jurisdiction] limitation be observed, or he may forgo that right, effectively consenting

to the court’s exercise of adjudicatory authority.”).

      Mr. Goodwin further argues that there is no identity of causes of action

between the 2013 Action and the instant action. With regard to this element, “[t]his

circuit has adopted the transactional test contained in the Restatement (Second) of

Judgments § 24.” Hatch v. Boulder Town Council, 471 F.3d 1142, 1149 (10th Cir.

2006). Under the transactional test, “a claim arising out of the same transaction, or




Surgical Corp., 847 F.3d at 1239 (internal quotation marks omitted). Mr. Goodwin
does not invoke this exception.
      6
        Mr. Goodwin does not separately challenge the application of claim
preclusion to the claims against the Four Defendants.
                                            8
series of connected transactions as a previous suit, which concluded in a valid and

final judgment, will be precluded.” Id. (internal quotation marks omitted).

      What constitutes the same transaction or series of transactions is to be
      determined pragmatically, giving weight to such considerations as whether
      the facts are related in time, space, origin, or motivation, whether they form
      a convenient trial unit, and whether their treatment as a unit conforms to the
      parties’ expectations or business understanding or usage.
Id. (internal quotation marks omitted). “A contract is generally considered to be a

‘transaction’ for claim preclusion purposes.” MACTEC, Inc. v. Gorelick, 427 F.3d

821, 832 (10th Cir. 2005).

       The district court properly determined that Mr. Goodwin’s claims, in both the

2013 Action and the instant action, arose out of the same transaction or series of

transactions—namely, the 2003 termination of Mr. Goodwin’s participation in Barra

Partners, LLC. All of his allegations concern the alleged injuries flowing from that

action. Although Mr. Goodwin asserts that his claims rely on newly discovered facts,

“[u]nder the transactional test, a new action [based on new facts] will be permitted

only where it raises new and independent claims, not part of the previous transaction,

based on the new facts.” Hatch, 471 F.3d at 1150. For substantially the reasons

discussed by the magistrate judge in her report and recommendation dated

December 11, 2017, which the district court adopted, we agree that the claims in the

instant action are not new and independent claims.

       Mr. Goodwin also invokes an exception to claim preclusion allowing claims

based on newly discovered evidence where “the evidence was either fraudulently

concealed or it could not have been discovered with due diligence.” Lenox

                                            9
MacLaren Surgical Corp., 847 F.3d at 1244 (internal quotation marks omitted). But

in this regard, Mr. Goodwin’s allegations that facts were fraudulently concealed

merely identified additional instances of, and injuries from, the same course of

conduct that was well known to him as early as 2003 and that was the subject of the

2013 Action. Under these circumstances, we are not persuaded that the

fraudulent-concealment exception saves his claims. The authority he cites is

inapposite.7

IV.    Issue Preclusion (Collateral Estoppel)

       In the 2013 Action, the district court held that it lacked personal jurisdiction

over the Issue Preclusion Defendants. Because Mr. Goodwin failed to demonstrate

that the circumstances concerning personal jurisdiction had changed with regard to

those defendants, the district court applied issue preclusion and dismissed all claims

against the Issue Preclusion Defendants for lack of personal jurisdiction. Like claim

preclusion, we review the application of issue preclusion de novo. Campbell,

777 F.3d at 1077.


       7
         Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321, 338 (1971),
sets forth rules for the accrual of a cause of action under the antitrust statutes; it does
not address the claim-preclusive effect of a prior judgment regarding non-antitrust
claims. McCarty v. First of Georgia Insurance Co., 713 F.2d 609, 612-13 (10th Cir.
1983), construes Oklahoma insurance law and addresses the defendant insurance
company’s concealment of a separate bad-faith claim, not additional injuries flowing
from the same course of conduct of which the plaintiff was already aware. Finally,
Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292, 2306 (2016), involves the
rule that an as-applied challenge may be brought after “later, concrete factual
developments” demonstrate the actual effects of challenged laws. The 2013 Action,
however, was not dismissed because the court doubted that any claimed
consequences would occur.
                                            10
      The elements of issue preclusion are:

      (1) the issue previously decided is identical with the one presented in the
      action in question, (2) the prior action has been finally adjudicated on the
      merits, (3) the party against whom the doctrine is invoked was a party, or in
      privity with a party, to the prior adjudication, and (4) the party against
      whom the doctrine is raised had a full and fair opportunity to litigate the
      issue in the prior action.
Matosantos Commercial Corp. v. Applebee’s Int’l, Inc., 245 F.3d 1203, 1207

(10th Cir. 2001) (internal quotation marks omitted).

      Mr. Goodwin combines his claim- and issue-preclusion arguments. As

discussed above, the district court’s failure to explicitly find it had personal

jurisdiction over each and every defendant in the 2013 Action does not mean that the

judgment in the 2013 Action cannot have preclusive effect. And even though the

2013 Action was dismissed without prejudice with regard to the Issue Preclusion

Defendants, a dismissal for lack of personal jurisdiction can be preclusive on the

issue of personal jurisdiction. See id. at 1209.

      Mr. Goodwin apparently also seeks to apply his “transactional test” arguments

to issue preclusion. But the “transactional test” is relevant to whether an issue could

have been litigated, an element of claim preclusion, see Lenox MacLaren Surgical

Corp., 847 F.3d at 1239, but not of issue preclusion, see Matosantos Commercial

Corp., 245 F.3d at 1207. The transactional test thus has no role to play in the context

of issue preclusion.

      The question of personal jurisdiction over the Issue Preclusion Defendants was

decided in the 2013 Action. Mr. Goodwin’s opening brief does not challenge the


                                            11
district court’s determination that he did not adduce sufficient new facts to overcome

issue preclusion. He therefore has forfeited any such argument. See Bronson v.

Swensen, 500 F.3d 1099, 1104 (10th Cir. 2007).

V.    Alleged Conflict of Interest

      In his reply brief, Mr. Goodwin complains that while this matter was pending

before the magistrate judge, she had a judicial intern who had been a summer

associate, and later was employed as an associate, at one of the defendant law firms.

But Mr. Goodwin has not presented these allegations to the district court. See United

States v. Nickl, 427 F.3d 1286, 1297 (10th Cir. 2005) (stating that “[n]ormally, a

party alleging judicial bias should move for recusal” (internal quotation marks

omitted)). Although we may consider the issue under the plain-error standard, see id.

at 1297-98, we decline to do so because Mr. Goodwin did not argue for the

application of that standard, see Richison v. Ernest Grp., Inc., 634 F.3d 1123,

1130-31 (10th Cir. 2011).

      Because we decline to consider the conflict-of-interest allegations, we deny

defendants’ motion for leave to file a sur-reply regarding this argument and disregard

defendants’ proffered sur-reply and Mr. Goodwin’s response.




                                          12
                                    CONCLUSION

      The motion to proceed without prepayment of costs and fees is granted, but he

remains obligated to pay the full amount of the filing and docketing fees. The motion

for leave to file a sur-reply is denied. The district court’s judgment is affirmed.


                                            Entered for the Court


                                            Jerome A. Holmes
                                            Circuit Judge




                                           13
