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

                               FOR THE TENTH CIRCUIT                      April 13, 2020
                           _________________________________
                                                                      Christopher M. Wolpert
                                                                          Clerk of Court
    GORDON NITKA, an individual,

         Plaintiff - Appellant,

    v.                                                        No. 19-1281
                                                 (D.C. No. 1:17-CV-00495-LTB-KMT)
    NELNET, INC., a Nebraska corporation,                      (D. Colo.)

         Defendant - Appellee.
                        _________________________________

                               ORDER AND JUDGMENT*
                           _________________________________

Before LUCERO, McHUGH, and MORITZ, Circuit Judges.
                  _________________________________

         Gordon Nitka, proceeding pro se, appeals from the district court’s

Fed. R. Civ. P. 41(b) dismissal of his lawsuit against Nelnet, Inc., the servicer of his

federal student loans. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

                                    BACKGROUND

         Nitka alleged “a violation of the Fair Credit Reporting Act [FCRA], two

violations of the Fair Debt Collection Practices Act [FDCPA], breach of contract,



*
  After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
intentional infliction of emotional distress, and fraud.” Nitka v. Nelnet, Inc.,

763 F. App’x 682, 684 (10th Cir. 2019) (Nitka I). When Nelnet moved for dismissal

of the FCRA, FDCPA, and contract claims, the district court dismissed all the claims

with prejudice. See id. at 684-85.

      On appeal, we affirmed in part and reversed in part. We affirmed the dismissal

of the FDCPA claims and the contract claim with prejudice. Id. at 685-86. We also

affirmed the dismissal of the FCRA claim, considering it in two parts. To the extent

it was based on 15 U.S.C. § 1681s-2(a), we affirmed the dismissal with prejudice.

Nitka I, 763 F. App’x at 685. But to the extent it was based on 15 U.S.C.

§ 1681s-2(b), although we affirmed the dismissal, we remanded “for the district court

to address [Nitka’s] argument that the dismissal should be modified to be without

prejudice and with leave to amend.” Nitka I, 763 F. App’x at 685. Finally, we held

that the district court apparently overlooked that Nelnet’s motion and the magistrate

judge’s report and recommendation did not address the emotional distress and fraud

claims, and we remanded those claims for the district court’s consideration. See id.

      Before Nitka filed his notice of appeal, he moved from one Colorado town (the

Old Address) to a different Colorado town (the New Address). He used the New

Address for the appeal. But he never filed a formal change of address form in the

district court. When this court remanded Nitka I in February 2019, the district




                                            2
court’s clerk used the Old Address to forward a copy of this court’s mandate to

Nitka. The mailing was returned as undeliverable, as was a second attempt.1

      On March 14, 2019, the district court ordered Nitka to address the remanded

claims. Noticing the return of the first mailing to the Old Address, the district court

ordered the clerk to mail a copy of this court’s Nitka I order and judgment and

mandate to the New Address. The district court’s docket shows that the same day,

the clerk mailed a copy of the district court’s order, as well as this court’s order and

judgment and mandate, to the New Address. And at some point, the district court’s

docket was updated to reflect the New Address as Nitka’s address.

      On April 4, Nitka filed a motion for leave to amend his complaint. The motion

listed the New Address as his correct contact information. Nelnet opposed the

motion, and Nitka filed a reply. Three weeks after receiving the reply, on May 23 the

district court ordered Nitka to comply with D.C. Colo. LCivR 15.1(b) by attaching

his proposed amended complaint as an exhibit to his motion. The district court gave

Nitka until June 3 to respond. The district court’s docket shows that the clerk mailed

a copy of the May 23 order to the New Address.

      Nitka failed to respond to the May 23 order. On June 19 the district court

dismissed the § 1681s-2(b) FCRA claim without prejudice and declined to exercise

supplemental jurisdiction over the state-law claims. The district court entered its




1
 “[W]e may take judicial notice of public records, including district court filings.”
Guttman v. Khalsa, 669 F.3d 1101, 1127 n.5 (10th Cir. 2012).
                                            3
judgment on June 20. The district court’s docket shows that the clerk mailed copies

of the June 19 order and the June 20 judgment to the New Address.

      Nitka alleges he never received any district court mailing after the remand. In

mid-July, he checked on the status of his case, only to learn that it had been

dismissed. On August 7, he filed an untimely notice of appeal. The district court

found good cause to extend the time to appeal, allowing Nitka to pursue this appeal.

                                     DISCUSSION

I.    Prudential Standing and Judicial Estoppel

      While Nitka I was pending before this court, Nitka filed a petition for

Chapter 7 bankruptcy. But he did not list his ongoing suit against Nelnet on his

schedule of assets. Nelnet argues that this failure means Nitka lacks prudential

standing, see Mauerhan v. Wagner Corp., 649 F.3d 1180, 1184 n.3 (10th Cir. 2011)

(“When an individual files for bankruptcy, all interests of the debtor become property

of the bankruptcy estate, including causes of action. The trustee of the bankruptcy

estate has the sole capacity to sue and be sued over the assets of the estate.” (citations

omitted)); 11 U.S.C. § 554(d) (providing that property that isn’t administered and is

not abandoned remains the property of the estate), and is subject to the doctrine of

judicial estoppel, see Eastman v. Union Pac. R. Co., 493 F.3d 1151, 1158-60

(10th Cir. 2007) (applying judicial estoppel where bankruptcy petitioner concealed

his causes of action).

      Although Nitka filed his bankruptcy proceeding before the remand in Nitka I,

Nelnet did not present these arguments to the district court. And it offers no

                                            4
explanation why it did not make these arguments earlier. We have discretion to

consider a new argument for affirming a decision, see Singleton v. Wulff, 428 U.S.

106, 121 (1976); Richison v. Ernest Grp., Inc., 634 F.3d 1123, 1130 (10th Cir. 2011),

but we decline to do so here. The arguments do not implicate subject-matter

jurisdiction, see New Hampshire v. Maine, 532 U.S. 742, 750 (2001) (recognizing

that “judicial estoppel is an equitable doctrine invoked by a court at its discretion”

(internal quotation marks omitted)); Finstuen v. Crutcher, 496 F.3d 1139, 1147

(10th Cir. 2007) (“Prudential standing is not jurisdictional in the same sense as

Article III standing.”), and their proper resolution is not certain, cf. Cox v. Glanz,

800 F.3d 1231, 1246 n.7 (10th Cir. 2015) (“[O]ur discretion allows us to determine

an issue raised for the first time on appeal if it is a pure matter of law and its proper

resolution is certain.” (internal quotation marks omitted)). Accordingly, we proceed

to consider the merits of the dismissal.

II.    Rule 41(b) Dismissal

       “We review dismissals under Rule 41(b) for abuse of discretion.” Nasious v.

Two Unknown B.I.C.E. Agents, 492 F.3d 1158, 1161 (10th Cir. 2007). “An abuse of

discretion has been characterized as an arbitrary, capricious, whimsical, or manifestly

unreasonable judgment.” Mid-Continent Cas. Co. v. Vill. at Deer Creek Homeowners

Ass’n, Inc., 685 F.3d 977, 981 (10th Cir. 2012) (internal quotation marks omitted).

Under this standard, we will not disturb the district court’s decision unless we have

“a definite and firm conviction that [it] made a clear error of judgment or exceeded

the bounds of permissible choice in the circumstances.” Id. (internal quotation marks

                                             5
omitted). “Although we liberally construe pro se filings, we do not assume the role

of advocate.” Yang v. Archuleta, 525 F.3d 925, 927 n.1 (10th Cir. 2008) (internal

quotation marks omitted).

      A district court may dismiss an action sua sponte “[i]f the plaintiff fails to

prosecute or to comply with . . . a court order.” Fed. R. Civ. P. 41(b); see Olsen v.

Mapes, 333 F.3d 1199, 1204 n.3 (10th Cir. 2003) (“Although the language of

Rule 41(b) requires that the defendant file a motion to dismiss, the Rule has long

been interpreted to permit courts to dismiss actions sua sponte for a plaintiff’s failure

to prosecute or comply with the rules of civil procedure or court’s orders.”).2 If the

dismissal is without prejudice, the district court may act “without attention to any

particular procedures.” Nasious, 492 F.3d at 1162.

      Nitka asserts that he never received copies of any documents from the district

court after this court remanded in Nitka I. He argues that the district court violated

his right to due process by not serving him with a copy of its May 23 order and that

the court erred by sending copies of documents to the Old Address.

      As a pro se party, Nitka was required to use the district court’s provided form

to keep the court updated with his current address. D. C. Colo. LCivR 5.1(c). But

Nitka never filed a formal notice of change of address. And although he states that

he “provided his proper mailing address, phone number, and email address on each


2
 We are not persuaded by Nitka’s attempts to distinguish Olsen. Despite any
differences between Olsen and the present case, Olsen supports the proposition that
Rule 41(b) does not require the court to wait for the defendant to file a motion to
dismiss. 333 F.3d at 1204 n.3.
                                            6
and every filing,” Aplt. Br. at 16, it was not the district court’s responsibility to

identify a change of address from the contents of his filings, see Theede v. U.S. Dep’t

of Labor, 172 F.3d 1262, 1267 (10th Cir. 1999).

       Nevertheless, the district court’s records were not the source of any problem.

In the March 14 order, the district court noted the return of the first mailing to the

Old Address. The court therefore directed the clerk to mail the documents to the

New Address, which Nitka concedes was his correct address. The docket reflects

that the clerk mailed the March 14 order and all subsequent orders—including the

May 23 order, June 19 dismissal, and June 20 judgment—to the New Address.

Therefore, there was no deficiency in service on Nitka. See id. at 1266-67.3

       Moreover, the district court had no reason to be aware that Nitka might not be

receiving its mailings. Unlike the mailings to the Old Address, none of the mailings

to the New Address was returned to the court as undeliverable. And based on Nitka’s

filings, it appeared that Nitka was receiving and responding to the court’s orders.

The March 14 order set April 4 as a response date, and Nitka filed his motion to

amend precisely on April 4. Then the court issued a minute order setting May 3 as

the deadline for Nitka to file a reply, and Nitka filed his reply on May 1.




3
  In support of his allegation that the court did not mail documents to the New
Address, Nitka supplies an unofficial transcript of a telephone conversation with an
employee in the clerk’s office. Even assuming that the transcript is correct, this
submission cannot overcome the contemporaneous evidence, reflected in the docket,
that on and after March 14 the clerk mailed each district court order to Nitka at the
New Address.
                                             7
      As a party representing himself, it was Nitka’s responsibility to keep himself

apprised of the status of his case. Had he reviewed the docket during the course of

the litigation, he would have noticed that he was not receiving the court’s mailings.

And had he conducted regular status checks, he might have been alerted to the

May 23 order before the district court dismissed the remaining claims. Under these

circumstances, the district court did not abuse its discretion in dismissing the

remaining claims without prejudice after Nitka failed to respond to the May 23 order.

                                    CONCLUSION

      Nitka’s motion to proceed without prepayment of costs and fees is granted.

The district court’s judgment is affirmed.


                                             Entered for the Court


                                             Nancy L. Moritz
                                             Circuit Judge




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