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

                           FOR THE TENTH CIRCUIT                      November 4, 2013

                                                                     Elisabeth A. Shumaker
                                                                         Clerk of Court
RAYMOND FITZGERALD, individual;
DAVID T. CUMMING, individual,

             Plaintiffs-Appellants,

v.                                                        No. 13-4072
                                                  (D.C. No. 2:12-CV-01113-TS)
US BANK,                                                    (D. Utah)

             Defendant-Appellee.


                            ORDER AND JUDGMENT*


Before GORSUCH, ANDERSON, and HOLMES, Circuit Judges.


      Raymond Fitzgerald and David Cumming agreed to guarantee a $2.5 million

loan their company received from U.S. Bank. When they tried to pay off the loan

ahead of schedule the bank charged them a prepayment fee. This Mr. Fitzgerald and

Mr. Cumming didn’t like, and they responded with a lawsuit alleging breach of


*
      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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
contract and several related legal wrongs. The bank replied with a motion to dismiss.

It appended the relevant bank agreements and argued they made plain, as a matter of

law, the plaintiffs’ obligation to pay prepayment fees. Ultimately, the district court

agreed with the bank’s analysis and dismissed the complaint for failure to state a

claim. See Fed. R. Civ. P. 12(b)(6). It is this result Mr. Fitzgerald and Mr. Cumming

ask us to undo.

      The plaintiffs argue that the district court erred by considering the relevant

bank agreements in connection with a Rule 12(b)(6) motion. But it’s long settled that

courts may, at the motion to dismiss stage and without converting the motion into one

for summary judgment, “consider documents referred to in the complaint if the

documents are central to the plaintiff[s’] claim and the parties do not dispute the

documents’ authenticity.” Alvarado v. KOB-TV, L.L.C., 493 F.3d 1210, 1215

(10th Cir. 2007); see also GFF Corp. v. Associated Wholesale Grocers, Inc.,

130 F.3d 1381, 1384-85 (10th Cir. 1997). Each of these requirements was satisfied

in this case. No one disputes the authenticity of the documents in question. The loan

agreements discussing prepayment fee obligations are, as well, referred to and a

central part of the plaintiffs’ complaint. To be sure, as Mr. Fitzgerald and

Mr. Cumming emphasize, their complaint doesn’t refer to them by their individual

formal titles. Their complaint does, however, refer to the agreements as the “loan

documents” and proceed to discuss their alleged contents. The complaint does this,

moreover, to support the plaintiff’s central contention in this litigation — that they


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aren’t obligated to pay any prepayment charges. In these circumstances, the district

court was lawfully permitted to refer to the materials it did.

      However that may be, Mr. Fitzgerald and Mr. Cumming reply they still aren’t

liable for the prepayment penalty. They aren’t, they say, because the penalty is

discussed only in the loan agreement between the bank and their company, an

agreement they weren’t personally parties to. The difficulty, as the district court

noted, is that everyone agrees the company is liable for prepayment penalties to the

bank under the terms of its loan agreement and the plaintiffs did personally sign a

guarantee expressly promising the bank they would satisfy the borrowing company’s

loans, notes, “and obligations of every kind” it owed the bank.

      Aside from their breach of contract claim, Mr. Fitzgerald and Mr. Cumming

sought to pursue several other related claims for relief in the district court. On

appeal, they insist the district court was wrong to dismiss those claims but they fail to

explain how. In this way their brief waives any appeal on these other claims, even

viewed with the solicitude due pro se filings. See Hernandez v. Starbuck, 69 F.3d

1089, 1093 (10th Cir. 1995). Neither, we can add, has our own independent review

turned up any suggestion of reversible error.

      Affirmed.


                                                Entered for the Court


                                                Neil M. Gorsuch
                                                Circuit Judge

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