                                                                           FILED
                                                               United States Court of Appeals
                                                                       Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                     January 11, 2011
                             FOR THE TENTH CIRCUIT
                                                                   Elisabeth A. Shumaker
                                                                       Clerk of Court


    DAVID WEBB,

                Plaintiff-Appellant,

    v.                                                     No. 09-4226
                                                  (D.C. No. 2:08-CV-00842-CW)
    CLAIMETRICS MANAGEMENT,                                  (D. Utah)
    LLC; EXPRESS SERVICES; DAVIS
    ORTHOPEDICS & SPORTS
    MEDICINE, a business entity in the
    State of Utah; WORKCARE NORTH,
    LLC; PERFORMANCE REHAB
    CLINIC, LLC – SALT LAKE CITY,

                Defendants-Appellees.


                             ORDER AND JUDGMENT *


Before HARTZ, O’BRIEN, and HOLMES, Circuit Judges.


         The district court dismissed this action with prejudice as a sanction for

David Webb’s misrepresentations concerning diversity jurisdiction. Webb now



*
       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not binding precedent, except under the doctrines of law of the case, res judicata,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.
claims the court abused its discretion in dismissing his case; the dismissal

prevents him from further amending his complaint; and he should have been

granted a hearing to clarify his state of citizenship. We have jurisdiction under

28 U.S.C. § 1291 and affirm.

      Webb initiated this action under various state-law theories, including

medical malpractice, defamation, and intentional infliction of emotional distress.

In his amended complaint, Webb claimed he was negligently treated for a

work-related injury and falsely accused of sexual harassment. He also sought

damages for alleged violations of state and federal privacy laws, 1 and claimed to

be a citizen of Hawaii for purposes of establishing diversity jurisdiction.

      The magistrate recommended the case be dismissed for failure to state a

claim, and, alternatively, as a sanction for what turned out to be Webb’s

misrepresentations concerning diversity jurisdiction. The district judge adopted

the magistrate’s report and recommendation and dismissed the entire case under

28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state a claim. 2 Agreeing with the

1
       Webb invoked privacy laws from Oklahoma and Utah, as well as the
Federal Wiretap Act, 18 U.S.C. §§ 2510-2522, alleging Claimetrics refused to
help process his worker’s compensation benefits unless he consented to having
his telephone calls recorded. A magistrate judge liberally construed Webb’s
allegations “regarding the interception of communication” as raising a claim
under § 2520, which provides a civil remedy for any person whose wire, oral, or
electronic communication is intercepted in violation of the statute. R., Vol. 1 at
235. Based on this claim, the magistrate asserted federal question jurisdiction.
2
      The district judge did not specify whether the dismissal was with or without
                                                                    (continued...)

                                         -2-
magistrate’s alternative recommendation as well, the district judge dismissed the

case with prejudice as a sanction for Webb’s efforts to falsely create diversity

jurisdiction. The dismissal prompted this appeal. 3

      We first consider the sanction, as it is dispositive of this appeal. We

review the appropriateness of the district court’s sanction for an abuse of

discretion, which occurs when the court relies on an erroneous legal conclusion or

clearly erroneous factual finding. See Ecclesiastes 9:10-11-12, Inc. v. LMC

Holding Co., 497 F.3d 1135, 1143 (10th Cir. 2007).

      The magistrate recommended dismissal as a sanction because in 2009 Webb

averred, in the United States District Court for the District of Hawaii, he had not

been a citizen of that state since February 4, 2006, when he left for Utah to care

for an elderly parent. R., Vol. 1 at 384, 387. But in order to create diversity

jurisdiction in this case, Webb alleged that in 2008 and 2009 he was a citizen of

Hawaii. Id. at 12, 231. Deeming these conflicting allegations a fraud on the

2
 (...continued)
prejudice, and thus we presume the court entered dismissal with prejudice. See
Fed. R. Civ. P. 41(b).
3
       Webb broadly asserts “everything is to be considered” in this appeal
because his notice of appeal and amended notice of appeal sought review of “the
whole . . . Case.” Reply Br. at 1 (underlining omitted). We afford Webb’s pro se
materials a liberal construction, Van Deelen v. Johnson, 497 F.3d 1151, 1153 n.1
(10th Cir. 2007), but his assertion is ill-founded. “[W]e routinely have declined
to consider arguments that are not raised, or are inadequately presented, in an
appellant’s opening brief.” Bronson v. Swensen, 500 F.3d 1099, 1104 (10th Cir.
2007). Consequently, any issue Webb intended to raise but failed to properly
brief has been forfeited.

                                         -3-
court, the magistrate applied Ehrenhaus v. Reynolds, 965 F.2d 916, 921 (10th Cir.

1992), and determined: defendants had been prejudiced; the fraudulent

allegations substantially interfered with the judicial process; Webb was highly

culpable; there was no opportunity for advance notice; and a less severe sanction

was inappropriate. 4

      The district judge agreed with the magistrate’s assessment under Ehrenhaus

and later denied Webb’s motion for reconsideration. Although Webb insisted he

actually did leave Hawaii and is now a citizen of South Dakota, the district judge

rejected that explanation, reasoning that, even if true, Webb still falsely

represented in this case that he was a citizen of Hawaii. Additionally, as the

judge noted, Webb mailed his complaint from Utah and alleged his injury

occurred on the job in Utah. The judge elaborated on the fourth Ehrenhaus factor

concerning the advance notice given to Webb, and, on that score, ruled Webb

could have responded when defendants introduced the Hawaii pleadings or




4
      Under Ehrenhaus, courts considering the sanction of dismissal should
evaluate:

      (1) the degree of actual prejudice to the defendant; (2) the amount of
      interference with the judicial process; (3) the culpability of the
      litigant; (4) whether the court warned the party in advance that
      dismissal of the action would be a likely sanction for noncompliance;
      and (5) the efficacy of lesser sanctions.

965 F.2d at 921 (ellipsis, citations, and quotations omitted).

                                         -4-
clarified his citizenship status in any of the four pleadings he filed after the

magistrate issued his report and recommendation.

      We perceive no error in the sanction imposed. The district judge properly

analyzed Webb’s misconduct under Ehrenhaus and determined dismissal was

warranted, a decision well within the judge’s permitted discretion. Webb insists

he made no intentional misrepresentations in the District of Hawaii, but his

explanation does not rectify his false representations in this case that he was a

citizen of Hawaii. Although Webb protests the sanction as precluding him from

again amending his complaint, that was the intended consequence for his

deceptive conduct. And, while Webb contends he should have been granted a

hearing to clarify his citizenship status, no hearing was necessary because the

district judge was keenly aware of the circumstances underlying the sanction. See

Chavez v. City of Albuquerque, 402 F.3d 1039, 1044 n.2 (10th Cir. 2005).

      The judgment of the district court is AFFIRMED. Webb’s motion to

reconsider the denial of appellate counsel is DENIED, as are all other outstanding

motions and requests for relief.



                                                      Entered for the Court


                                                      Terrence L. O’Brien
                                                      Circuit Judge




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