                                                                         FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit

                                                                      July 8, 2011
                      UNITED STATES COURT OF APPEALS
                                                   Elisabeth A. Shumaker
                                                                     Clerk of Court
                            FOR THE TENTH CIRCUIT


    ROGER SCOTT BRYNER,

                Plaintiff-Appellant,

    v.                                                    No. 10-4130
                                               (D.C. No. 2:09-CV-00253-CW-SA)
    HONORABLE DENISE LINDBERG;                              (D. Utah)
    HONORABLE RANDALL N.
    SKANCHY; WESLEY OATES,
    THIRD DISTRICT COURT SALT
    LAKE CITY STATE OF UTAH,

                Defendants-Appellees.


                             ORDER AND JUDGMENT *


Before MURPHY, HARTZ, and GORSUCH, Circuit Judges.



         In this appeal, Roger Scott Bryner, appearing pro se, argues that the federal

district court dismissal of his state-law malpractice claim against a former

attorney should have been without prejudice. He asks only that we modify the



*
       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not binding precedent, except under the doctrines of law of the case, res judicata,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.
judgment to be without prejudice. We agree and modify the district court’s

judgment accordingly.

      Mr. Bryner filed an adversary complaint alleging that the defendants, acting

separately or collectively, had violated the automatic bankruptcy stay; violated

42 U.S.C. § 1983; and committed acts of legal malpractice, fraud, mail fraud, and

racketeering. 1 The adversary action was later removed to the district court. The

magistrate judge then recommended the claims against all the defendants except

for Mr. Oates be dismissed based on the Younger abstention doctrine. R., Vol. 3

at 243. The district court adopted this recommendation. 2

      As to the malpractice claims against Mr. Oates, Mr. Bryner moved to have

them dismissed without prejudice so he could pursue them in state court and

Mr. Oates moved to have them dismissed with prejudice. The magistrate judge

recommended they be dismissed with prejudice on the ground that Mr. Bryner had

failed to state a claim for malpractice under Utah law. Id. at 255-56. The district

court held simply: “As to Plaintiff’s claim against . . . Oates . . . for legal

malpractice, the court declines to exercise supplemental jurisdiction over the


1
       Judges Denise Lindberg and Randall Skanchy of the Third District Court
for the State of Utah were judges involved in Mr. Bryner’s state
marriage-dissolution case. Mr. Oates is an attorney who appeared on
Mr. Bryner’s behalf in a limited capacity in that matter.
2
      The district court also adopted the magistrate judge’s recommendation that
Mr. Bryner’s oral argument request that the claims against Judge Skanchy be
dismissed was an alternative ground for dismissal of those claims.

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matter. Accordingly, the court hereby dismisses with prejudice the claims against

Oates.” R., Vol. 3 at 302-03.

      On appeal, Mr. Bryner asks only that the dismissal of his state-law

malpractice claim against Mr. Oates be modified from a dismissal “with

prejudice” to one “without prejudice.” 3 He raises two arguments in support of

modification, but we need address only the first: that the dismissal of his

state-law malpractice claim should have been without prejudice because the court

dismissed all of the claims over which it had original jurisdiction on the ground

that it lacked jurisdiction due to the Younger abstention doctrine.

      The district court stated that it was declining to exercise jurisdiction over

the claim against Mr. Oates. Under 28 U.S.C. § 1367(c), a district court may

decline to exercise supplemental jurisdiction over a state-law claim for a number

of reasons, including if “the district court has dismissed all claims over which it

has original jurisdiction.” 28 U.S.C. § 1367(c)(3); see also Smith v. City of Enid

ex rel. Enid City Comm’n, 149 F.3d 1151, 1156 (10th Cir. 1998) (“When all

federal claims have been dismissed, the court may, and usually should, decline to

exercise jurisdiction over any remaining state claims.”). Mr. Bryner, however,



3
       Mr. Bryner’s appellate briefs make clear that he is not attacking the district
court’s decision as to any of the defendants besides Mr. Oates. His reply brief
states that he “has asked for no relief from the order of younger abstention with
regard to the state defendants” and that “[n]othing remains to be done with
respect to the State of Utah and the Judges there.” Aplt. Reply Br. at 2.

                                         -3-
argues not just that a district court that has declined jurisdiction over a claim

should dismiss that claim without prejudice, but that, in this case, the district

court was required to dismiss his state-law claim without prejudice after it

dismissed the federal-law claims for lack of jurisdiction. See D.L. v. Unified Sch.

Dist. No. 497, 392 F.3d 1223, 1228 (10th Cir. 2004) (holding that “Younger

abstention is jurisdictional”); with Herman Family Revocable Trust v. Teddy

Bear, 254 F.3d 802, 806 (9th Cir. 2001) (“If the district court dismisses all federal

claims on the merits, it has discretion under § 1367(c) to adjudicate the remaining

claims; if the court dismisses for lack of subject matter jurisdiction, it has no

discretion and must dismiss all claims.”). We need not decide whether the district

court lacked jurisdiction to adjudicate the state-law claims or simply declined to

exercise its jurisdiction; in either event, the dismissal should have been without

prejudice. See Brereton v. Bountiful City Corp., 434 F.3d 1213, 1218 (10th Cir.

2006).

         Mr. Oates argues that the with-prejudice dismissal should be affirmed

because “the District Court proceedings correctly produced a claim-preclusive

determination against Bryner.” Aplee. Br. at 10. First, we note that the Utah

state court is not bound in making future preclusion decisions by whether or not

the federal district court used the term “with prejudice” or “without prejudice.”

See Brereton, 434 F.3d at 1218. Second, to the extent that Mr. Oates is arguing

that the district court made a merits decision on Mr. Bryner’s claim against

                                          -4-
Mr. Oates, such an argument would require a conclusion that the district court

intended to say that it “decides to exercise supplemental jurisdiction over the

matter” (or something to that effect) instead of saying that it “declines to exercise

supplemental jurisdiction over the matter.” But such a conclusion makes no sense

in light of the court’s failure to then proceed to any merits analysis.

      Mr. Oates next argues that affirmance of the district court’s

claim-preclusive, with-prejudice dismissal is required under Brereton and Styskal

v. Weld County Bd. of County Comm’rs, 365 F.3d 855 (10th Cir. 2004). He is

incorrect in a number of ways. First, in Brereton we read Styskal as holding

“only” that “where a federal court dismisses ‘with prejudice’ claims over which it

lacks jurisdiction, a state court need not be blinded by this nomenclature into

barring a subsequent action on the same claim that is properly brought within its

jurisdiction.” 434 F.3d at 1218. We went on to hold that, in such a situation, we

still had a duty to correct the district court’s error. Thus, Brereton and Styskal,

when read together, do not help Mr. Oates.

      Mr. Oates also argues that Mr. Bryner’s failure to file a motion to alter or

amend the judgment resulted in a waiver of his right to appeal. The one case he

cites for this proposition does not support it, and we can find no federal case

reaching that conclusion. Finally, he argues that “Bryner failed to object to the

magistrate’s conclusion that he had failed to state a claim against Oates,” and




                                          -5-
that, because of this failure, the magistrate judge’s report and recommendation

“became the order of the court.” Aplee. Br. at 19. This is wrong on both counts.

      First, Mr. Bryner did briefly object to the magistrate judge’s

recommendation regarding his claim against Mr. Oates. See R., Vol. 3 at 266

(“Both Roger Bryner and Defendant Oates agree that there is not any current basis

for federal jurisdiction over the issue of malpractice. Thus this court LACKS

THE JURISDICTION to dismiss the cause of action with prejudice.”). Second,

holding that a failure to object to a magistrate judge’s recommendation

automatically makes that recommendation the final judgment regardless of

whether the district court adopts the recommendation would undermine the

prohibition against magistrate judges making final decisions on dispositive

matters, see Lister v. Dep’t of Treasury, 408 F.3d 1309, 1312 (10th Cir. 2005),

and wreak havoc with the rules regarding finality.

      We affirm the judgment of the district court dismissing the action, but

REMAND to the district court to modify the dismissal of the state-law claims to

be “without prejudice.” Mr. Bryner’s motion to proceed in forma pauperis is

GRANTED.


                                                     Entered for the Court



                                                     Michael R. Murphy
                                                     Circuit Judge

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