                                                              F I L E D
                                                        United States Court of Appeals
                                                                Tenth Circuit
                 UNITED STATES CO URT O F APPEALS
                                                             February 9, 2007
                          FO R TH E TENTH CIRCUIT          Elisabeth A. Shumaker
                                                               Clerk of Court

LYNN ALLAN JENKINS, I,

            Plaintiff-Appellant,

v.                                      Nos. 05-4057, 05-4237 & 05-4287
                                           (D.C. No. 03-CV-148-TC)
M TG LQ INVESTO RS;                                (D. Utah)
JOHN DOES 1-10,

            Defendants-Appellees.


U N ITED STA TES O F A M ER ICA,

            Plaintiff-Appellee,

v.                                                No. 06-4051
                                           (D.C. No. 97-CV-95-DAK)
LYNN ALLAN JENKINS, I,                             (D. Utah)

            Defendant-Appellant,

M TG LQ INVESTO RS,

            Defendant-Appellee,

      and

129.97 ACR ES O F LA N D , M O RE OR
LESS, SITUATED IN DAVIS
C OU N TY , STA TE O F U TA H ;
ED W IN M . H IG LEY ; C AR L B OW N;
B.C. PRO PERTIES,

            Defendants.
                           OR D ER AND JUDGM ENT *


Before HO LM ES, M cKA Y, and BROR BY, Circuit Judges.




      Plaintiff-appellant Lynn Jenkins, proceeding pro se, has four pending

appeals, three of which, Nos. 05-4057, 05-4237, and 05-4287, arise from one

action and have been consolidated. The fourth appeal, No. 06-4051, arises from a

related matter, and we have combined it with the consolidated appeals for

dispositional purposes only. Because M r. Jenkins appears pro se, we review his

pleadings and other papers liberally and hold them to a less stringent standard

than those drafted by attorneys. See Hall v. Bellmon, 935 F.2d 1106, 1110 & n.3

(10th Cir. 1991). W e have jurisdiction over all four appeals under 28 U.S.C.

§ 1291, and we affirm all of the district courts’ decisions at issue. W e also

propose filing restrictions on M r. Jenkins based on his litigation conduct in case

No. 06-4051.




*
       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 w ith Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.

                                         -2-
         The Consolidated Appeals: Nos. 05-4057, 05-4237, and 05-4287

      The consolidated appeals arise from a quiet title action M r. Jenkins filed in

Utah state district court concerning 22.59 acres of real property in Syracuse,

Utah. In support of his claim that he was holder of fee title to the land, he alleged

that he had pledged the land as security for a loan obtained by a third party from

the predecessor in interest of defendant-appellee M TGLQ Investors, a D elaw are

limited partnership in the business of purchasing and collecting unpaid loans.

Based on that pledge, he claimed to be an “accommodation party” under Utah

law, and based on that status, he asserted that M TGLQ’s refusal of his tender of a

payoff amount effected a discharge of the debt, thus clearing title.

      M r. Jenkins did not serve a summons or a copy of the complaint on

M TGLQ. Instead, he attempted to effectuate service by serving the Utah Division

of Corporations and Commercial Code (Division) based on Utah Code Ann.

§ 48-2a-907(4), by which a foreign limited partnership “transacting business” in

Utah without registration appoints the director of the Division as its agent for

service of process. He did so despite the fact that whether or not M TGLQ was

“transacting business” in Utah, as that term is defined under Utah law, was at

issue in pending litigation between the parties in another Utah judicial district,

and despite his familiarity with M TGLQ from the litigation that underlies the

appeal we have combined with the consolidated appeals. He then obtained a

default judgment against M TGLQ for nearly $2,000,000.

                                          -3-
      Several months later M TGLQ learned of M r. Jenkins’s lawsuit after

receiving a foreclosure report that disclosed a judgment lien against certain real

property. M TGLQ then removed the state suit to federal court under 28 U.S.C.

§ 1441(a) based on diversity of citizenship and successfully moved to set aside

the default judgment under Fed. R. Civ. P. 60(b) based on the defective service.

In setting aside the default judgment, the district court found, among other things,

that M TGLQ was not transacting business in Utah as that term is defined under

Utah law and that service on the Division was improper. The court also denied

M r. Jenkins’s motion to dismiss or strike, which essentially was a motion to

rem and. From that interlocutory order M r. Jenkins filed an appeal, which we

dismissed for lack of jurisdiction. See Jenkins v. M TG LQ Inv., No. 04-4107

(10th Cir. Aug. 20, 2004) (order dismissing appeal).

      Thereafter, the district court granted M TGLQ’s motion to dismiss the case

for failure to state a claim upon which relief can be granted, concluding, among

other things, that M r. Jenkins lacked standing because he had sold the property in

question prior to filing suit and because he was not an accommodation party

under Utah law. Finding the filing of the case and its continued prosecution to be

frivolous and abusive, the district court assessed a $1,000 sanction against

M r. Jenkins under Fed. R. Civ. P. 11 and later awarded $15,000 in attorney’s fees

to M TGLQ. The court also issued orders of contempt to M r. Jenkins for failing to

abide by the court’s order to sign papers necessary to vacate and set aside invalid

                                         -4-
judgments he had filed or domesticated against M TGLQ in foreign jurisdictions

that were based on the default judgment. The court eventually remanded him to

the custody of the United States M arshals for his continued refusal to sign the

necessary papers but, several weeks later, granted his motion for release from

custody due to his declining mental and physical health. The court also denied

M r. Jenkins’s motions for a stay of appeal and a new trial.

      The consolidated appeals arise from the orders discussed above. For the

reasons stated below , we affirm all of those decisions.

      In his appellate brief, M r. Jenkins argues that removal was improper

because M TGLQ did not establish complete diversity of citizenship. He did not

raise this issue in the district court, but because it is jurisdictional, we must

review it. See Basso v. Utah Power & Light Co., 495 F.2d 906, 909 (10th Cir.

1974). W e review the propriety of removal de novo. M artin v. Franklin Capital

Corp., 251 F.3d 1284, 1289 (10th Cir. 2001).

      In Carden v. Arkoma Associates, the Supreme Court held that the

citizenship of a limited partnership for diversity purposes depends on the

citizenship of all its members and left to Congress the task of extending the

corporation-citizenship rule of 28 U.S.C. § 1332(c) 1 to unincorporated entities.



1
       Section 1332(c) provides in relevant part that for purposes of diversity
jurisdiction, “a corporation shall be deemed to be a citizen of any State by which
it has been incorporated and of the State where it has its principal place of
                                                                        (continued...)

                                           -5-
494 U.S. 185, 195-97 (1990). In order to effect removal under 28 U.S.C.

§ 1441(a) based on diversity of citizenship, therefore, a limited partnership must

show that the citizenship of all its general and limited partners is diverse from the

plaintiff. 2

        In its original notice of removal, M TGLQ pleaded its citizenship as a

limited partnership organized under Delaware law and having its principal place

of business in New York. Acknowledging that the statement was defective

because it failed to account for the citizenship of all its partners, M TGLQ has

filed with this court a motion to amend its notice of removal. See 28 U.S.C.

§ 1653 (permitting amendment of defective jurisdictional allegations in either the

district or appellate court); Penteco Corp. Ltd. P’ship— 1985A v. Union Gas Sys.,

Inc., 929 F.2d 1519, 1523 (10th Cir. 1991) (recognizing this court’s power to

permit a party to supply omitted jurisdictional facts on appeal but declining to do

so where the record suggested a possible lack of diversity). The motion to amend,

which is well-supported with documentary evidence, indicates that none of

M TGLQ’s component entities that are capable of citizenship for diversity

purposes are citizens of the state of U tah, the state of w hich M r. Jenkins is a



1
 (...continued)
business.” 28 U.S.C. § 1332(c)(1).
2
      In addition to completely diverse citizenship, diversity jurisdiction also
requires that there be more than $75,000 in controversy. 28 U.S.C. § 1132(a).
The amount of the default judgment indicates that this requirement is met.

                                          -6-
citizen. M r. Jenkins has not opposed the motion or otherwise provided any

coherent argument that the amended jurisdictional allegations are untrue.

Accordingly, we grant the motion to amend the notice of removal and conclude

that removal based on diversity of citizenship was proper.

      M r. Jenkins also argues that under the Rooker-Feldman doctrine, 3 the

district court lacked power to set aside the default judgment entered by the state

court. This argument evidences a fundamental misunderstanding of both

Rooker-Feldman and removal. Under 28 U.S.C. § 1257(a), “[f]inal judgments or

decrees rendered by the highest court of a State in which a decision could be had,

may be reviewed by the Supreme Court by writ of certiorari.” “The

Rooker-Feldman doctrine arose out of this statute, and provides that only the

Supreme Court has jurisdiction to hear appeals from final state court judgments.”

Bear v. Patton, 451 F.3d 639, 641 (10th Cir. 2006). Proper removal does not

constitute an appeal, de facto or otherwise, of the state court proceedings but a

continuation of them. See Freeman v. Bee Mach. Co., 319 U.S. 448, 452 (1943)

(“The jurisdiction exercised on removal is original not appellate.”). Thus, the

Rooker-Feldman doctrine has no application to a properly removed case where, as

here, there is no attack on a separate and final state-court judgment.




3
       The doctrine takes its name from tw o Supreme Court cases, Rooker v.
Fidelity Trust Co., 263 U.S. 413 (1923), and District of Columbia Court of
Appeals v. Feldman, 460 U.S. 462 (1983).

                                         -7-
      Several courts have implicitly approved of removal even after a state court

has entered a default judgment. See Murray v. Ford M otor Co., 770 F.2d 461,

463, 465 (5th Cir. 1985) (per curiam) (affirming order entered after removal that

set aside default judgment); Butner v. Neustadter, 324 F.2d 783, 785-87 (9th Cir.

1963) (reversing order entered after removal that denied motion to set aside

default judgment); M unsey v. Testworth Labs., 227 F.2d 902, 903 (6th Cir. 1955)

(per curiam) (affirming order entered after removal that set aside default

judgment); Cady v. Associated Colonies, 119 F. 420, 423 (C.C.N.D. Cal. 1902)

(vacating default judgment after removal where service on secretary of state was

not valid constructive service as to foreign corporation that was not doing

business in the state). Because, as the district court concluded, M TGLQ was

never properly served with a copy of the summons, which is “the sine qua non

directing an individual or entity to participate in a civil action or forgo procedural

or substantive rights” absent waiver of service, M urphy Bros., Inc. v. M ichetti

Pipe Stringing, Inc., 526 U.S. 344, 351 (1999), the thirty-day period for filing a

notice of removal set forth in 28 U.S.C. § 1446(b) never started to run, see id.

at 350 (“one becomes a party officially, and is required to take action in that

capacity, only upon service of a summons or other authority-asserting measure

stating the time within which the party served must appear and defend”).

M TGLQ’s notice of removal therefore was timely despite being filed more than




                                          -8-
three months after entry of the default judgment and more than eight months after

M r. Jenkins filed his complaint.

      After removal, M TGLQ had the “right to the opinion of the Federal court

. . . as to the validity of the service of process [in the state court].” M ech.

Appliance Co. v. Castleman, 215 U.S. 437, 441 (1910); see also Silva v. City of

M adison, 69 F.3d 1368, 1376 (7th Cir. 1995) (filing notice of removal does not

waive challenge to the sufficiency of service in state court) (citing M orris & Co.

v. Skandinavia Ins. Co., 279 U.S. 405, 409 (1929)). The district court then could

set aside the default judgment under Fed. R. Civ. P. 55(c) and 60(b). See Fed. R.

Civ. P. 81(c) (federal rules of civil procedure “apply to civil actions removed to

the United States district courts from the state courts and govern procedure after

removal”); cf. 28 U.S.C. § 1450 (all orders entered prior to removal “shall remain

in full force and effect until dissolved or modified by the district court”).

      As to the merits of the district court’s order setting aside the default

judgment, M r. Jenkins makes only the barest mention of the court’s determination

that service on the Division was improper because M TGLQ was not transacting

business in Utah within the meaning of Utah law. Because he has not advanced

any reasoned argument that service was proper under Utah law, we do not

consider that issue. See Am. Airlines v. Christensen, 967 F.2d 410, 415 n.8

(10th Cir. 1992).




                                           -9-
      M r. Jenkins argues for the first time on appeal that by setting aside the

default judgment, the district court violated the Full Faith and Credit Clause,

see U.S. Const. art. IV, § 1. Because he did not raise this nonjurisdictional issue

in the district court, he has w aived it. See Pittsburg County Rural Water Dist.

No. 7 v. City of M cAlester, 358 F.3d 694, 708 & n.4 (10th Cir. 2004) (Full Faith

and Credit issue not jurisdictional); Walker v. M ather (In re Walker), 959 F.2d

894, 896 (10th Cir. 1992) (failure to present issue to district court ordinarily

results in waiver). Furthermore, he has not raised any issues concerning any of

the district court’s other orders. Accordingly, he has waived all other

nonjurisdictional issues decided by the district court. See State Farm Fire & Cas.

Co. v. M hoon, 31 F.3d 979, 984 n.7 (10th Cir. 1994) (failure to raise issue in

opening appellate brief waives that issue).

                                 Appeal No. 06-4051

      W e set out the lengthy factual background and procedural history of this

case in our order and judgment dismissing the last of M r. Jenkins’s four prior

appeals and need not repeat it here. See United States v. 129.97 Acres of Land,

118 F. App’x 407 (10th Cir. 2004) (unpublished) (Jenkins IV). Suffice it to say

that none of his prior appeals had any merit, and his third and fourth appeals were

dismissed as frivolous, see id. at 409; United States v. 129.97 Acres of Land,




                                         -10-
51 F. App’x 851, 852 (10th Cir. 2002) (Jenkins III). 4 Pertinent to this fifth

appeal, we imposed monetary sanctions in Jenkins IV under Rule 38 of the

Federal Rules of Appellate Procedure and remanded the matter to the district

court for a determination of reasonable attorney’s fees. See Jenkins IV,

118 F. App’x at 409. W e also cautioned M r. Jenkins that if he persisted in filing

frivolous appeals or reasserting issues already ruled upon in prior litigation, his

ability to proceed pro se in the federal courts of this circuit w ould be restricted.

Id. On remand, the district court ordered M r. Jenkins to pay $3,631.50 in

attorney’s fees to M TGLQ, and M r. Jenkins has taken this appeal.

      Notwithstanding our specific warning, M r. Jenkins once again revisits the

merits of the underlying case in his appellate brief. He also lists other issues that

he contends this court must determine. But those issues concern the merits of the

consolidated appeals we discussed above. Furthermore, those issues are not

properly presented because they lack any supporting argument. See Am. Airlines,

967 F.2d at 415 n.8. Finally, M r. Jenkins has not taken issue with the amount of

the sanctions determined by the district court. Accordingly, he has waived the




4
       In Jenkins III we granted M TGLQ’s motion for sanctions for filing a
frivolous appeal and remanded for a determination of reasonable attorney’s fees,
which the district court found was $3,379.50. See Jenkins IV, 118 F. App’x
at 408 (discussing sanctions in Jenkins III). Our dispositions of the other two
appeals are Jenkins v. Babbitt, No. 00-4057, 2000 W L 1773236 (10th Cir. Dec. 4,
2000) (unpublished), which was a related case, and United States v. 129.97 Acres
of Land, No. 99-4122, 2000 W L 766280 (10th Cir. June 14, 2000) (unpublished).

                                          -11-
issue, see Mhoon, 31 F.3d at 984 n.7, and we affirm the amount of sanctions.

Because we find this appeal frivolous and M r. Jenkins’s pattern of litigation

activity manifestly abusive, we conclude that filing restrictions are necessary.

      “The right of access to the courts is neither absolute nor unconditional, and

there is no constitutional right of access to the courts to prosecute an action that is

frivolous or malicious.” Winslow v. Hunter (In re Winslow), 17 F.3d 314, 315

(10th Cir. 1994) (per curiam) (quotation and alteration omitted). “[W]here, as

here, a party has engaged in a pattern of litigation activity which is manifestly

abusive, restrictions are appropriate.” Id. (quotation omitted). Therefore, subject

to M r. Jenkins’s opportunity to object, as described below, we impose the

following reasonable filing restrictions on future filings in this court by

M r. Jenkins “commensurate with our inherent power to enter orders ‘necessary or

appropriate’ in aid of our jurisdiction.” Id. (quoting 28 U.S.C. § 1651(a)).

      M r. Jenkins is ENJOINED from proceeding as a petitioner in an original

proceeding or as an appellant in this court unless he is represented by a licensed

attorney admitted to practice in this court or unless he first obtains permission to

proceed pro se. To obtain permission to proceed pro se, M r. Jenkins must take

the follow ing steps:

      1. File a petition with the clerk of this court requesting leave to file a

pro se action;




                                          -12-
      2. Include in the petition the following information:

             A. A list of all lawsuits currently pending or filed previously with

this court, including the name, number, and citation, if applicable, of each case,

and the current status or disposition of the appeal or original proceeding; and

             B. A list apprising this court of all outstanding injunctions or orders

limiting M r. Jenkins’s access to federal court, including orders and injunctions

requiring him to seek leave to file matters pro se or requiring him to be

represented by an attorney, including the name, number, and citation, if

applicable, of all such orders or injunctions; and

      3. File with the clerk a notarized affidavit, in proper legal form, which

recites the issues M r. Jenkins seeks to present, including a short discussion of the

legal basis asserted therefor, and describing with particularity the order being

challenged. The affidavit also must certify, to the best of M r. Jenkins’s

knowledge, that the legal arguments being raised are not frivolous or made in bad

faith, that they are warranted by existing law or a good faith argument for the

extension, modification, or reversal of existing law, that the appeal or other

proceeding is not interposed for any improper purpose such as delay or to

needlessly increase the cost of litigation, and that he will comply with all

appellate and local rules of this court.

      These documents shall be submitted to the clerk of the court, who shall

forward them to the Chief Judge or her designee for review to determine whether

                                           -13-
to permit an appeal. W ithout the approval of the Chief Judge or her designee, the

matter will be dismissed. If the Chief Judge or her designee approves the filing,

an order shall be entered indicating that the appeal shall proceed in accordance

with the Federal Rules of A ppellate Procedure and the Tenth Circuit Rules.

      M r. Jenkins shall have ten days from the date of this order to file written

objections to these proposed sanctions. See Winslow, 17 F.3d at 316. The

response shall be limited to fifteen pages. See id. If M r. Jenkins does not file

objections, the filing restrictions shall take effect twenty days from the date of

this order, and the filing restrictions shall apply to any matter filed after that time.

Id. at 316-17. If M r. Jenkins does file timely objections, these sanctions shall not

take effect until after this court has ruled on those objections.

                                      Conclusion

      The district courts’ orders are A FFIRM ED in all four appeals. M TGLQ’s

motion to amend its notice of removal is GRANTED, and the action underlying

the consolidated appeals is REM ANDED to the district court for the limited

purpose of permitting M TGLQ to file an amended notice of removal in

substantially the same form as provided in Exhibit C to the motion. All other

pending motions are DENIED as moot.

                                                       Entered for the Court


                                                       W ade Brorby
                                                       Circuit Judge

                                          -14-
