                                                                      F I L E D
                                                               United States Court of Appeals
                                                                       Tenth Circuit
                       UNITED STATES CO URT O F APPEALS
                                                                       July 19, 2007
                            FO R TH E TENTH CIRCUIT                Elisabeth A. Shumaker
                                                                       Clerk of Court

    D O N JA V A U GH N ,

                 Plaintiff/Counter-
                 Defendant-Appellant,

    v.                                                  No. 06-1290
                                             (D.C. No. 04-cv-01358-M SK-CB S)
    M ARGARET KREHBIEL and                               (D . Colo.)
    RO BERT K REH BIEL,

                 Defendants/Counter-
                 Claimants-Appellees,

          and

    JOEL STEVENSO N and
    G A RY SH O U N ,

                 Defendants-Appellees.



                            OR D ER AND JUDGM ENT *


Before M cCO NNELL, PO RFILIO, and BALDOCK , 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not binding precedent, except under the doctrines of law of the case, res judicata,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.
      This case concerns the boarding and ownership of horses. Plaintiff Donja

Vaughn appeals from orders of the district court (1) dismissing, pursuant to

Fed. R. Civ. P. 12(b)(6), her claims against defendants M argaret and Robert

Krehbiel, who boarded the horses and who filed an agister’s lien 1 in Colorado

state court; (2) dismissing, pursuant to Rule 12(b)(6), her claims against Joel

Stevenson and Gary Shoun, brand inspectors for the Colorado Department of

Agriculture, who put the horses on hold due to questionable title and who

allegedly advised the Krehbiels about the filing of the agister’s lien; and

(3) denying her motion to amend her complaint. W e have jurisdiction under

28 U.S.C. § 1291, and we affirm.

      In her complaint, M s. Vaughn alleged claims against the Krehbiels for

breach of contract and negligence and claims against all defendants for conspiracy

to deprive her of property without due process in violation of 42 U.S.C. § 1983,

tortious interference with contract, malicious prosecution, and conversion. The

Krehbiels filed a motion to dismiss. In a published order, the district court

granted the motion in part, concluding that the due process, tortious interference

with contract, and conversion claims were barred by the applicable two-year

statute of limitations. Vaughn v. Krehbiel, 367 F. Supp. 2d 1305, 1310-12




1
      The agister’s lien was a lien on the horses left in the care of the Krehbiels
to secure payment for their boarding fees. See Black’s Law Dictionary 73, 941
(8th ed. 2004) (definitions of agister and agister’s lien).

                                         -2-
(D. Colo. 2005). In addition, the court found that the doctrine of claim preclusion

warranted dismissal of the breach of contract claim and most of the negligence

claim. Id. at 1312-14. Thereafter, the Krehbiels filed their answ er to

M s. Vaughn’s remaining claims against them--the malicious prosecution claim

and the remainder of the negligence claim--and filed counterclaims against

M s. Vaughn for breach of contract, quantum meruit, and unjust enrichment.

      M r. Stevenson and M r. Shoun filed a motion to dismiss all claims against

them. And M s. Vaughn filed a motion to dismiss the counterclaims. In an order

dated January 19, 2006, the district court granted in part M r. Stevenson’s and

M r. Shoun’s motion. Aplt. Supp. App. at 139-46. For the reasons stated in its

published order, the district court dismissed the due process, tortious interference

with contract, and conversion claims against them as barred by the statute of

limitations. Id. at 142. Also, the court found that M s. Vaughn failed to state a

malicious prosecution claim under § 1983 for a deprivation of her Fourth

Amendment rights, because her complaint refers to civil proceedings and does not

assert a violation of personal liberty or privacy and, even if she had premised her

malicious prosecution claim on criminal charges lodged against her, the complaint

did not state sufficient facts to implicate M r. Stevenson or M r. Shoun in the

institution or maintenance of criminal charges against her. Id. at 142-43.

Because the dismissal of all federal claims deprived the district court of subject

matter jurisdiction, that court declined to exercise supplemental jurisdiction over

                                          -3-
the remaining state-law claims, including the Krehbiels’ counterclaims. Id. at

144-45. In addition, it also declined to address M s. Vaughn’s motion to dismiss

the counterclaims. Id. at 146.

      W ithin ten days, M s. Vaughn filed a motion to reconsider the January 19

order and requested leave to amend her complaint to add a plaintiff and to add

more details that were allegedly newly discovered. In an order dated June 16,

2006, the district court denied reconsideration and leave to amend. Aplt. App. at

251-56. The court denied the motion to reconsider because it was

“incomprehensib[le],” it was based on “a false premise,” and it failed to indicate

that the court “misconstrued the evidence or otherwise erred.” Id. at 253-54.

Also, the court decided any amendment of the complaint would be the product of

undue delay and would be futile. Id. at 254-55.

      On appeal, M s. Vaughn argues that (1) the district court erred in

dismissing, under Rule 12(b)(6), her due process, conversion, and malicious

prosecution claims; (2) the statute of limitations did not bar her malicious

prosecution claim; and (3) the district court abused its discretion in denying her

leave to amend her complaint. In addition, she contends, for the first time on

appeal, that her malicious prosecution claim against the Krehbiels is based on

diversity jurisdiction and that the Colorado Governmental Immunity Act’s notice

of claim requirements do not apply to her § 1983 claim.




                                         -4-
      W e review the district court’s dismissal under Rule 12(b)(6) de novo.

Ridge at Red Hawk, L.L.C. v. Schneider, No. 06-4162, 2007 W L 1969681, at *3

(10th Cir. July 9, 2007). In reviewing, we assume the truth of M s. Vaughn’s

well-pleaded factual allegations and view those allegations in the light most

favorable to her. See id. To survive a motion to dismiss, her complaint must

contain enough facts to plausibly suggest that a claim has been made. See Bell

Atl. Corp. v. Twombly, 127 S. Ct. 1955, 1965, 1969 (2007). “[T]he complaint

must give the court reason to believe that [M s. Vaughn] has a reasonable

likelihood of mustering factual support for [her] claims.” Ridge at Red Hawk,

L.L.C., 2007 W L 1969681, at *3.

      Having reviewed the parties’ briefs and appendices and the applicable law

pursuant to these standards, we conclude that M s. Vaughn has asserted no

reversible error on appeal concerning the district court’s dismissal orders. W e

therefore affirm for substantially the same reasons stated by the district court in

its thorough orders of April 11, 2005, and January 19, 2006. See Vaughn,

367 F. Supp. 2d 1305; Aplt. Supp. App. at 139.

      Next, we review the district court’s denial of M s. Vaughn’s motion to

amend her complaint for an abuse of discretion. Barfield v. Commerce Bank,

N.A., 484 F.3d 1276, 1280 (10th Cir. 2007). For substantially the same reasons

set forth in the district court’s order of June 16, 2006, see Aplt. App. at 251, we

conclude the district court did not abuse its discretion. The proposed amendment

                                          -5-
could not have withstood a motion to dismiss. See W alker v. Elbert, 75 F.3d 592,

599 (10th Cir. 1996). And M s. Vaughn failed to provide an adequate explanation

for her delay in moving to amend the complaint. See Minter v. Prime Equip. Co.,

451 F.3d 1196, 1206 (10th Cir. 2006).

      M s. Vaughn for the first time asserted in her appellate brief, but without

any discussion, that the malicious prosecution claim against the Krehbiels is

based on diversity jurisdiction. In her reply brief, she suggests for the first time

that this court could dismiss M r. Stevenson and M r. Shoun as parties pursuant to

Fed. R. Civ. P. 21 to cure a jurisdictional defect of incomplete diversity. See

Newman-G reen, Inc. v. Alfonzo-Larrain, 490 U.S. 826, 827, 832, 837 (1989)

(holding that Rule 21 gives appellate courts authority to dismiss non-diverse,

dispensable party to cure jurisdictional defect). Typically, we do not consider

issues raised for the first time in a reply brief. Stump v. Gates, 211 F.3d 527, 533

(10th Cir. 2000). But we will consider a new issue when it relates to actual

jurisdictional requirements. Sadeghi v. INS, 40 F.3d 1139, 1143 (10th Cir. 1994).

The jurisdictional issue before us, however, does not cause us to deviate from our

typical rule. This is not a case where the district court lacked jurisdiction. And

we will not allow M s. Vaughn to shift her basis for jurisdiction at this late date

simply because she did not like the result in the district court.




                                          -6-
      Finally, we conclude that M s. Vaughn’s argument concerning the Colorado

Governmental Immunity Act is irrelevant. The district court did not apply this

Act to any of her claims.

      A ccordingly, the judgment of the district court is AFFIRMED.


                                                   Entered for the Court



                                                   M ichael W . M cConnell
                                                   Circuit Judge




                                        -7-
