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

                           FOR THE TENTH CIRCUIT                         May 20, 2014

                                                                     Elisabeth A. Shumaker
                                                                         Clerk of Court
JAMES BALL; SARAH BALL,
individually and on behalf of J.B.,

             Plaintiffs-Appellants,

v.                                                        No. 12-4126
                                                  (D.C. No. 1:11-CV-00028-DS)
MARIBETH MAYFIELD; ROSIE                                    (D. Utah)
HOLMES; DANNY THOMAS; JOSEPH
LEIKER; DEANN TAYLOR; MARK
ROBERTSON; JOANN CARPER;
TEENA CARPER; SCOTT CARPER,

             Defendants-Appellees,

and

DIVISION OF CHILD AND FAMILY
SERVICES, Davis County; HEATHER
BAKER; DOES 1-10,

             Defendants.


                            ORDER AND JUDGMENT*




*
      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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
Before BRISCOE, Chief Judge, BRORBY, Senior Circuit Judge, and
TYMKOVICH, Circuit Judge.


      The Rooker-Feldman doctrine1 “bars federal courts from reviewing the

judgments and decisions of state courts once they have become final.”

D.A. Osguthorpe Family P’ship v. ASC Utah, Inc., 705 F.3d 1223, 1230 n.7

(10th Cir.), cert. denied, 133 S. Ct. 2831 (2013). Plaintiffs-appellants James and

Sarah Ball appeal from the district court’s memorandum decision dismissing their

claims for lack of subject matter jurisdiction under the Rooker-Feldman doctrine, or,

in the alternative, granting judgment on the pleadings under Fed. R. Civ. P. 12(c) to

defendants-appellees. We affirm.

                                    I. Background

      The Balls brought this civil rights suit under 42 U.S.C. § 1983 after the

State of Utah’s child abuse investigation and custody proceedings regarding their

daughter, J.B. In their amended complaint, the Balls asserted seven claims for relief

against four categories of defendants: (1) the Division of Child and Family Services

(“DCFS”); (2) five DCFS employees who were directly involved with the

investigation of the Balls’ home (Maribeth Mayfield, Heather Baker, Rosie Holmes,

Danny Thomas, and Joseph Leiker); (3) two supervisory DCFS employees who were

not directly involved in the investigation (Deanne Taylor and Mark Robertson); and


1
     See Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923), and District of
Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983).


                                         -2-
(4) the “Carper Defendants,” three members of Sarah Ball’s family who allegedly

prompted the investigation. Ms. Baker was never served, however, and was never

made a party to the case. Generally, the Balls asserted that the Carper Defendants

spearheaded a plan to cause DCFS and its employees (the State Defendants) to

remove J.B. from their care based on a religious disagreement over how she was

being raised, and that the actions taken by the State Defendants to achieve the

removal of J.B. from their home violated their constitutional rights.2

      The State Defendants (other than Ms. Baker) answered the complaint and then

moved for judgment on the pleadings under Fed. R. Civ. P. 12(c), asserting that they

were protected either by sovereign immunity under the Eleventh Amendment and/or

the Utah Governmental Immunity Act, or they were entitled to qualified immunity

because the Balls’ amended complaint failed to allege a violation of their

constitutional rights, and the law was not clearly established that removing a child

from her parents’ custody pursuant to a facially valid state-court order was


2
       The Balls’ seven causes of action are: (1) infringement of their right of
association without substantive due process (against all defendants); (2) lack of
procedural due process and failure to protect their right to privacy (against
defendants Mayfield, Baker, and Thomas); (3) failure to properly supervise and train
defendants Mayfield, Baker, Holmes, and Leiker (against defendants DCFS and
Robertson); (4) ratifying the conduct of defendants Mayfield, Baker, Holmes, and
Leiker (against defendants DCFS and Robertson); (5) following a policy, practice,
and custom to condone the conduct of defendants Mayfield, Baker, Holmes, and
Leiker (against defendants DCFS and Robertson); (6) intentional infliction of
emotional distress (against defendants Mayfield, Baker, Holmes, and Leiker); and
(7) negligent infliction of emotional distress (against defendants Mayfield, Baker,
Holmes, and Leiker).

                                         -3-
unconstitutional. The Carper Defendants also answered the complaint and then

moved for judgment on the pleadings. They argued that they were not state actors for

purposes of § 1983 and that, even if they were deemed to be state actors, they were

entitled to qualified immunity because they reasonably reported suspected danger to

J.B. to the relevant state authorities. The Balls opposed both motions.

      The district court granted judgment to defendants on all claims. With regard

to the State Defendants, the court dismissed the claims against DCFS because the

Balls did not challenge DCFS’s assertion of sovereign immunity. The court further

pointed out that the Balls did not include any factual allegations in their amended

complaint against either of the supervisory defendants, so they necessarily failed to

allege the supervisors’ personal participation in an alleged constitutional violation,

and their claims against Ms. Taylor and Mr. Robertson in their official capacities

were barred by sovereign immunity.

      The court further found that all of the state employees acting in their

individual capacities were entitled to qualified immunity because the Balls’

allegations of harassment, lying, and discrimination were “conclusions with

insufficient factual support,” Aplt. App. at 192, and their “claims amount[ed] to

opinion, conclusory statements, and subjective beliefs,” id. at 195. The court

explained that even deliberate falsehoods told by state officials were protected by

qualified immunity because the Balls could have challenged the allegedly false

statements in the state custody proceeding, and that their only well-pled factual


                                          -4-
allegations—that the State Defendants investigated their home based on a complaint

of suspected abuse and then established conditions for their daughter to remain in the

home—did not show a constitutional violation. Finally, the court concluded that the

state employees were protected against claims in their individual capacities by

sovereign immunity under the Utah Governmental Immunity Act. The court

therefore granted judgment on the pleadings to the State Defendants.

      With regard to the Carper Defendants, the court agreed that they were not state

actors under any of the applicable tests. In addition, the court reasoned that even if

the Carper Defendants were state actors, they were entitled to qualified immunity

because the Balls failed to show that reporting suspected child abuse violates clearly

established law. The court dismissed the Balls’ sole claim against the Carper

Defendants.

      The Balls filed this appeal, challenging only “the District Court’s dismissal of

claims against the Direct State Defendants, the Supervisory State Defendants, and the

Carper Defendants.” Aplt. Opening Br. at 6. They argued that the factual allegations

in their amended complaint were sufficient: (1) to support the claims asserted against

the state employees directly involved with the investigation; (2) to show the

necessary affirmative link between the supervisors’ exercise or control, or failure to

supervise or control, the employees who were directly involved in the investigation,

and the supervisors were therefore not immune from suit; and (3) to show that the

Carper Defendants acted jointly with the State Defendants and should therefore be


                                          -5-
deemed state actors who were not qualifiedly immune from suit. Upon consideration,

we ordered a limited remand for the district court to consider whether it lacked

subject matter jurisdiction over any of the Balls’ claims under Rooker-Feldman. The

district court ordered briefing from the parties.

      On October 17, 2013, the district court entered a memorandum decision

dismissing the Balls’ claims without prejudice for lack of subject matter jurisdiction

under Rooker-Feldman. D.C. No. 1:11-cv-0028-DS, Doc. 79, at 9. The court

vacated its orders dismissing the Balls’ claims on the merits, but incorporated its

prior merits analysis and decision in its October 17, 2013, memorandum decision by

reference, “[t]o the extent that the Rooker-Feldman doctrine does not apply to any

causes of action.” Id. at 7 n.1. We then ordered supplemental briefing from the

parties addressing the court’s order of dismissal based on Rooker-Feldman.

                         II. Issues on Appeal and Discussion

      The Rooker-Feldman doctrine “precludes federal district courts from

effectively exercising appellate jurisdiction over claims actually decided by a state

court and claims inextricably intertwined with a prior state-court judgment.” Mo’s

Express, LLC v. Sopkin, 441 F.3d 1229, 1233 (10th Cir. 2006) (internal quotation

marks omitted). “If jurisdiction is challenged, the burden is on the party claiming

jurisdiction to show it by a preponderance of the evidence.” United States ex rel.

Hafter v. Spectrum Emergency Care, Inc., 190 F.3d 1156, 1160 (10th Cir. 1999).

“Mere conclusory allegations of jurisdiction are not enough.” Id.


                                          -6-
       The Balls rely on PJ ex rel. Jensen v. Wagner, 603 F.3d 1182, 1193-94

(10th Cir. 2010), a Utah case where we held that some claims related to a state

custody order were barred by Rooker-Feldman, but other claims that were

“extricable” from the state-court order were not similarly barred. The Balls argue

that their amended complaint states substantive and procedural due process claims

that are not barred, as in Jensen, see id. at 1194.

       Defendants argue that the Balls’ appellate supplemental brief on jurisdiction is

inadequate to establish the district court’s jurisdiction over their claims. They point

out that the Balls rely for their proof on a brief summary of alleged

misrepresentations made prior to the entry of the State’s custody order, but these few

misrepresentations are alleged to have been made by Ms. Baker and DCFS, who are

not parties to this appeal because the Balls never served Ms. Baker and did not appeal

the dismissal of DCFS based on sovereign immunity. Defendants argue that the Balls

have not carried their burden to establish jurisdiction over the parties based on a

summary of allegations against non-parties.

       We agree that the Balls’ supplemental brief fails to establish that any of their

seven claims against the defendants-appellees clear the Rooker-Feldman hurdle. The

Balls must show that their claims do not require the district court to engage in “a

review of the proceedings already conducted by the ‘lower’ tribunal to determine

whether it reached its result in accordance with law.” Jensen, 603 F.3d at 1193

(internal quotation marks omitted). Yet, their only argument is that a few


                                           -7-
misrepresentations were made prior to the state-court order by DCFS and Ms. Baker,

two non-parties to the appeal.

       The Balls have offered no authority holding that allegations against

non-parties can establish federal court jurisdiction over claims against the parties to

this appeal, and our decision in Jensen suggests that allegations against non-parties

are not sufficient. See id. at 1194 (holding that the Jensens’ substantive and

procedural due process claims survived Rooker-Feldman, “[w]ithout addressing

every underlying factual allegation against each defendant here”) (emphasis added).

The Balls’ declaration that their substantive and procedural due process claims are

like those we allowed to proceed to the merits in Jensen is conclusory and

insufficient to carry their burden on these two claims. Cf. id. (examining the

elements of the Jensens’ claims to determine whether the facts required to be proved

would “invite federal-court undoing of” a state-court order in violation of

Rooker-Feldman). In addition, the Balls merely list their other five claims; the

absence of any argument at all on those five claims reveals their brief to be

insufficient to establish that any of them is not barred by Rooker-Feldman. We

therefore affirm the district court’s dismissal for lack of jurisdiction.

       Moreover, even if the Balls established the district court’s jurisdiction to hear

their claims, we would affirm the district court’s conclusion that the Balls failed to




                                           -8-
show that defendants-appellees were not entitled to qualified immunity.3 A

defendant’s motion to dismiss based on an affirmative defense raised in an answer,

such as immunity, is accurately described as a motion for judgment on the pleadings

under Fed. R. Civ. P. 12(c). See Brown v. Montoya, 662 F.3d 1152, 1160 n.4 (10th

Cir. 2011). “We review a district court’s grant of a motion for judgment on the

pleadings de novo, using the same standard that applies to a [Fed. R. Civ. P.]

12(b)(6) motion.” Colony Ins. Co. v. Burke, 698 F.3d 1222, 1228 (10th Cir. 2012)

(internal quotation marks omitted). The standard governing motions to dismiss is

that set out by the Supreme Court in Bell Atlantic Corp. v. Twombly, 550 U.S. 544


3
        Our cases are unclear whether we are permitted to address the merits without
first considering Rooker-Feldman’s jurisdictional commands. In one case, we
concluded that when a jurisdictional hurdle is premised on a statutory, as opposed to
constitutional, command, we can assume jurisdiction to dispose of patently weak
claims on the merits. See Yancey v. Thomas, 441 F. App’x 552, 555 n.1 (10th Cir.
2011); see also Ivanishvili v. U.S. Dep’t of Justice, 433 F.3d 332, 338 n.2 (2d Cir.
2006) (“Our assumption of jurisdiction to consider first the merits is not barred where
the jurisdictional constraints are imposed by statute, not the Constitution, and where
the jurisdictional issues are complex and the substance of the claim is, as here,
plainly without merit.”). In another case, we left “for another day” a decision as to
whether a question of statutory jurisdiction could be bypassed, noting support from
three other circuits for that view. Abernathy v. Wandes, 713 F.3d 538, 557 n.17
(10th Cir. 2013) (citing cases from the First, Second, and Third Circuits),
cert. denied, 82 U.S.L.W. 3609 (U.S. Apr. 21, 2014) (Nos. 13-7723 & 13A298);
see also In re Athens/Alpha Gas Corp., 715 F.3d 230, 235 (8th Cir. 2013).
Rooker-Feldman’s basis as a jurisdictional prerequisite is a product of the negative
inference arising from 28 U.S.C. § 1257(a), which grants the United States Supreme
Court exclusive jurisdiction over direct appeals from state court judgments.
Mo’s Express, LLC v. Sopkin, 441 F.3d 1229, 1233 (10th Cir. 2006). Faced with a
purely statutory directive, these cases suggest we can elide complicated jurisdictional
issues surrounding the application of Rooker-Feldman in favor of a merits-based
decision in appropriate circumstances.


                                         -9-
(2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009). See Brown, 662 F.3d at 1162-63.

“We accept the well-pled factual allegations in the complaint as true, resolve all

reasonable inferences in the plaintiff’s favor, and ask whether it is plausible that the

plaintiff is entitled to relief.” Diversey v. Schmidly, 738 F.3d 1196, 1199 (10th Cir.

2013) (citation omitted) (internal quotation marks omitted).

       On appeal, the Balls argue that “the District Court should have looked more

closely at the sufficiency of the allegations in the amended complaint,” Aplt.

Opening Br. at 8, that “[t]he complaint outlines specific acts by identifiable parties

on particular dates,” id. at 9, and that “these allegations are plausible,” id.

They argue that “[t]he allegations in the amended complaint reveal an abundance of

falsifications without which the Balls would not have been deprived of their

constitutional rights,” id. at 10, that “[o]nly the most lax supervision” could account

for the investigating employees’ actions, id. at 12, and that “the Carper Defendant[s’]

plan to remove J.B. from the care of James and Sarah ran seamlessly into the DCFS

investigation that continued the Carper Defendant[s’] campaign of false reports

against the Balls,” id. at 13.

       The Balls never, however, even mention their seven claims for relief in their

opening brief on appeal; in fact, they only clearly advert to one of their claims

(interference with privacy). They argue in conclusory fashion that the factual

allegations in their amended complaint were sufficient—without showing that their

allegations tie any defendant to any element of any claim for relief. Indeed, the Balls


                                           - 10 -
did not include any alleged action taken by defendants Holmes, Leiker, Taylor, or

Robertson in their statement of facts, and they also do not set out any allegations

showing that the Carper Defendants acted jointly with the State Defendants.

      We have reviewed the district court’s merits analysis incorporated by reference

in its October 17, 2013, memorandum decision. The court reviewed the Balls’

complaint under the appropriate legal standards, and we affirm the court’s

conclusions for substantially the reasons stated in its orders.

      Affirmed.


                                                   Entered for the Court


                                                   Timothy M. Tymkovich
                                                   Circuit Judge




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