                                                                         F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                       UNITED STATES CO URT O F APPEALS
                                                                          June 14, 2006
                             FO R TH E TENTH CIRCUIT                  Elisabeth A. Shumaker
                                                                          Clerk of Court



    RO W ANA K. RIGGS,

              Plaintiff-Appellant,

     v.                                                    No. 05-3065
                                                    (D.C. No. 03-CV-2546-CM )
    AETNA LIFE IN SURANCE CO.;                               (D . Kan.)
    AM ERICA N HERITA GE LIFE
    IN SU RAN CE C O.; B OEIN G
    W IC HITA CR ED IT U N IO N ; BOEING
    M ILITA RY A IR CR AFT C O.; CUNA
    M U TU A L IN SU RA N CE SO CIETY,

              Defendants-Appellees.




                              OR D ER AND JUDGM ENT *


Before PO RFILIO, B AL DOC K , and EBEL, Circuit Judges.


          Plaintiff Rowana K. Riggs, proceeding pro se here as in the district court,

appeals the district court’s dismissal of her claims against the defendants



*
       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not binding precedent, except under the doctrines of law of the case, res judicata,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. The court generally disfavors the citation of orders and
judgments; nevertheless, an order and judgment may be cited under the terms and
conditions of 10th Cir. R. 36.3.
asserting violations of the Employee Retirement Income Security Act (ERISA),

breach of contract, and tortious interference with contract. 1 W e discuss separately

M s. Riggs’ claims against the defendants.

                     CU NA M utual Insurance Society (CU NA)

      W e first address M s. Riggs’ claims against CUNA because the status of

those claims implicates our subject-matter jurisdiction. The district court issued

an order dismissing the claims against the other defendants, but that order did not

finally resolve the claims against CUNA. The defendants requested the district

court to certify an appeal of a separate final judgment on fewer than all claims, as

authorized by Fed. R. Civ. P. 54(b). The district court denied the Rule 54(b)

motion. M s. Riggs filed a notice of appeal, but this court lacked jurisdiction over

the appeal because M s. Riggs’ claims against CUNA were not final. See Jordan

v. Pugh, 425 F.3d 820, 826-27 (10th Cir. 2005) (holding appellate jurisdiction

does not lie unless district court’s order is final). This court abated the appeal

and M s. Riggs filed a motion in the district court to dismiss her claims against

CUNA. The district court granted the motion and dismissed the claims against




1
       The district court characterized M s. Riggs’ claims as falling under these
theories of recovery. W e, like the district court, have difficulty discerning the
legal theories M s. Riggs pursues. But since she does not challenge the district
court’s characterization of her claims, we assume they are as the district court
framed them. W e construe M s. Riggs’ claims liberally because she is
representing herself. See Haines v. Kerner, 404 U.S. 519, 520 (1972).

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CUNA with prejudice, 2 thus making final all claims against all parties. The

abatement order w as lifted. This court has jurisdiction over the appeal.

28 U.S.C. § 1291.

      W e do not address the substance of M s. Riggs’ claims against CUNA,

however, because she voluntarily dismissed those claims in the district court. By

doing so, M s. Riggs deprived the district court of an opportunity to rule on the

merits, which, in turn, gives this court nothing to review. Further, we will not

permit M s. Riggs to circumvent Rule 54(b) by voluntarily dismissing her claims

with prejudice in order to confer jurisdiction on this court, yet still pursue those

claims on appeal. Therefore, we conclude that M s. Riggs may not maintain her

claims against CUNA on appeal. See Pipeliners Local Union No. 799 v. Ellerd,

503 F.2d 1193, 1199-00 (10th Cir. 1974) (holding parties’ voluntary dismissal of

their claims constituted a bar to attack on district court’s earlier order dismissing

their complaint).




2
       The record does not make clear whether the district court dismissed
M s. Riggs’ claims against CUNA with or without prejudice. M s. Riggs has stated
unequivocally in her response to the abatement order that the dismissal was w ith
prejudice. Therefore, we conclude that M s. Riggs’ claims against CUNA were
dismissed with prejudice. Accordingly, we have jurisdiction. Cf. Heimann v.
Snead, 133 F.3d 767, 769 (10th Cir. 1998) (“Parties may not confer appellate
jurisdiction upon [the court of appeals] by obtaining a voluntary dismissal without
prejudice of some claims so that others may be appealed.”).

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                 American Heritage Life Insurance Co. (American)

      M s. Riggs sued American alleging it denied her credit disability benefits to

which she was entitled. The district court recognized that M s. Riggs had filed an

earlier lawsuit against American and ruled that the doctrine of res judicata, or

claim preclusion, barred her from bringing the same or similar claims against

American based on the same cause of action. Therefore, the district court

dismissed the claims against American. “The application of res judicata is a

question of law w hich w e review de novo.” M ACTEC, Inc. v. Gorelick, 427 F.3d

821, 831 (10th Cir. 2005), cert. denied, 126 S. Ct. 1622 (2006).

      In M s. Riggs’ prior lawsuit against American, she asserted that “she

became totally disabled due to bilateral carpal tunnel syndrome and [sought]

damages for alleged violations of her civil rights stemming from American’s

refusal to pay total disability under two credit disability insurance policies.”

Riggs v. Am. Heritage Life Ins. Co., 60 F.App’x 216, 218 (10th Cir. 2003).

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

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

issued final judgment.” M ACTEC, Inc., 427 F.3d at 831 (emphasis added).

M s. Riggs contends that her theories of recovery in this case – breach of contract,

ERISA, and tortious interference with contract – are different from those raised in

the prior case. Even if that were true, she is precluded from bringing them in this

case because she could have raised these theories in her prior lawsuit which was

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based on the credit disability insurance policies. Accordingly, because we

determine that the district court properly found the necessary elements of claim

preclusion, see id., we affirm the order dismissing American.

   Boeing M ilitary Aircraft Co. (Boeing) and Aetna Life Insurance Co. (Aetna)

      M s. Riggs brought claims for denial of benefits under ERISA against

Boeing, her former employer, and Aetna, the claims administrator and fiduciary

for Boeing’s long- and short-term disability plans. The district court dismissed

the claims against these defendants under Fed. R. Civ. P. 12(b)(6) for failure to

state a claim upon which relief can be granted.

      W e review de novo a district court’s Rule 12(b)(6) dismissal order. Beedle

v. Wilson, 422 F.3d 1059, 1063 (10th Cir. 2005). “Dismissal of a complaint

pursuant to Rule 12(b)(6) will be upheld only if it appears beyond a doubt that the

plaintiff can prove no set of facts in support of [her] claim which would entitle

[her] to relief.” Id. (quotation omitted).

      M s. Riggs does not dispute Aetna’s and Boeing’s position that (1) Boeing’s

ERISA plan provides that claims are to be filed with the plan administrator,

(2) neither Boeing nor Aetna is the ERISA plan administrator, and (3) M s. Riggs

was informed of the ERISA plan administrator’s identity in the summary plan

description. An ERISA plan must provide a reasonable procedure for a claimant

to file a benefit claim. 29 C.F.R. § 2560.503-1(b) & (e). M s. Riggs does not

allege that the plan’s requirement that claims be filed with the plan administrator

                                             -5-
is unreasonable. Therefore, because neither of these defendants is the ERISA

plan administrator, the district court properly dismissed M s. Riggs’ ERISA claims

against them.

                       Boeing Wichita Credit Union (BW CU)

      BW CU financed M s. Riggs’ purchase of two motor vehicles and sold her

credit disability insurance as part of the transaction. W hen M s. Riggs defaulted

on the loans, BW CU repossessed the vehicles and sued in state court for the

balance due. M s. Riggs countersued BW CU in state court, and later filed for

bankruptcy under Chapter 7. The bankruptcy trustee sold M s. Riggs’ claims

against BW CU, which were characterized as any and all claims M s. Riggs had

against BW CU. BW CU purchased those claims from the bankruptcy trustee.

      In this lawsuit, M s. Riggs brought claims against BW CU based on the same

circumstances as her state-court case, claiming violations of ERISA , breach of

contract, and tortious interference with contract. The district court entered a

judgment on the pleadings in favor of BW CU, pursuant to Fed. R. Civ. P. 12(c).

W e review de novo a defense motion for judgment on the pleadings. Soc’y of

Separationists v. Pleasant Grove City, 416 F.3d 1239, 1240-41 (10th Cir. 2005).

“As w ith a ruling under Fed. R. Civ. P. 12(b)(6), we uphold a dismissal only

when it appears that the plaintiff can prove no set of facts in support of the claims

that would entitle the plaintiff to relief.” Id. (quotation omitted).




                                          -6-
      The district court correctly determined that M s. Riggs was not the real

party in interest and therefore could not bring claims against BW CU. See Fed. R.

Civ. P. 17(a) (“Every action shall be prosecuted in the name of the real party in

interest.”). Once she filed for bankruptcy, her claims against BW CU became the

property of the bankruptcy estate. See 11 U.S.C. § 541(a). At that point, the

bankruptcy trustee, not M s. Riggs, was the real party in interest w ith authority to

dispose of the claims against BW CU, which he did. See 11 U.S.C. § 323; Barger

v. City of Cartersville, 348 F.3d 1289, 1292 (11th Cir. 2003); Wieburg v. GTE

Southwest Inc., 272 F.3d 302, 306 (5th Cir. 2001). M s. Riggs’ attempt to reassert

her claims against BW CU in the underlying federal lawsuit w as properly denied.

      The judgment of the district court is AFFIRMED.



                                                      Entered for the Court



                                                      John C. Porfilio
                                                      Circuit Judge




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