                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                   April 19, 2012
                            FOR THE TENTH CIRCUIT               Elisabeth A. Shumaker
                                                                    Clerk of Court


    MARCIE ISAACSON,

                Plaintiff-Appellant,

    v.                                                   No. 11-6201
                                                 (D.C. No. 5:10-CV-00678-M)
    JOE B. ISAACSON,                                    (W.D. Okla.)

                Defendant-Appellee.


                             ORDER AND JUDGMENT *


Before KELLY, MURPHY, and MATHESON, Circuit Judges.



         Plaintiff Marcie Isaacson appeals from the district court’s grant of summary

judgment to her ex-husband, defendant Joe B. Isaacson, D.D.S., and its denial of

her motion for partial summary judgment in this suit alleging violations of the

Oklahoma wiretap act, formally known as the Security of Communications Act,

Okla. Stat. tit. 13, §§ 176.1-176.14, and the federal wiretap act, formally known



*
       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not binding precedent, except under the doctrines of law of the case, res judicata,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.
as Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C.

§§ 2510-2522. We have jurisdiction under 28 U.S.C. § 1291 and affirm.


                                  I. Background

      The parties divorced on July 30, 2008, and were awarded joint custody of

their five-year old twin boys. From mid-February into July 2009, Dr. Isaacson

recorded the telephone conversations the boys had with their mother at his house

by means of a recording device he caused to be placed on his home phones.

      On January 19, 2010, Dr. Isaacson filed a motion in the divorce case to

terminate joint custody. It was during that litigation that Ms. Isaacson learned

that Dr. Isaacson had been taping the boys’ conversations with her while they

were at his home. She filed a motion in limine to prevent his use of the tape

recordings, asserting that they were obtained in violation of the law. Dr. Isaacson

argued in response that he had a good faith concern for his minor sons’ welfare

and, as a result, the taping was not illegal under the vicarious consent and

extension phone exceptions to the federal wiretap act. On June 24, 2010, the state

court granted Ms. Isaacson’s motion to suppress, ruling from the bench that both

the state and federal wiretap acts applied, that there was an intercepted

communication in violation of both acts, and that no exceptions to the acts

applied. See Aplt. App., Vol. 1, at 127-28.




                                         -2-
      Ms. Isaacson filed this federal suit on June 29, 2010. In her amended

complaint, she asserted that Dr. Isaacson had violated the federal and state

wiretap acts. Id. at 212-13. In his November 10, 2010, motion for summary

judgment, Dr. Isaacson argued that he was entitled to summary judgment on his

affirmative defenses of consent, vicarious consent, and the extension phone

exceptions to the federal wiretap act. See, e.g., id. at 25-31. He made thirty-two

assertions of undisputed material facts, see id. at 10-20, and attached evidentiary

material to his summary judgment motion, see, e.g., id. at 32-88. Ms. Isaacson

filed a combined response and motion for partial summary judgment on

November 22, 2010. Aplee. Supp. App. at 22. She admitted half of

Dr. Isaacson’s assertions of undisputed material facts, see id. at 27-34, and

presented no evidence to controvert the others. In particular, she admitted

sending her ex-husband text messages in January and early February 2009 stating,

“your kids cannot stand you,” “Kids are the true judges. . . . I’m taking your

rights away[,]” and directing him to get his attorney because she thought that she

could prove that he was “not a proper parent[,]” that the boys “don’t want to

come to your house anyway[,]” and that she could get more money and time with

her children. Id. at 29-30 (regarding alleged undisputed material facts number 10,

13, and 15). She did not request additional time under Fed. R. Civ. P. 56(d) in

which to procure unavailable evidence. She later filed an amended motion for




                                         -3-
partial summary judgment and a reply brief in response to Dr. Isaacson’s

summary judgment motion. See Aplt. App., Vol. 1, at 89, 192.

      In her pleadings, Ms. Isaacson argued that the issue of Dr. Isaacson’s

affirmative defenses was res judicata based on the state court’s bench ruling on

her suppression motion in their still-pending custody dispute. See Aplee. Supp.

App. at 27, 39, 41-42; Aplt. App., Vol. 1, at 92-93, 192-93. She also purported to

make an argument that there were genuine issues of material fact to be tried, but

she did not include a single citation to any evidentiary materials in her argument.

See Aplee. Supp. App. at 37-43. On April 6, 2011, the district court entered an

order granting summary judgment in favor of Dr. Isaacson, holding that both the

vicarious consent exception and the extension phone exception applied.

Aplt. App., Vol. 2, at 220-22. 1 The court rejected Ms. Isaacson’s contention that

res judicata applied because the state court had not yet issued a final decision in

the custody dispute. Id. at 223.

      On May 2, 2011, Ms. Isaacson filed a “motion for new trial” under

Fed. R. Civ. P. 59 and 60, arguing that new evidence showed that summary

judgment was improperly granted. Aplt. App., Vol. 2, at 231, 238. She asserted

that Dr. Isaacson’s deposition, which she had taken on April 1, 2011, as well as

his response to discovery requests filed in the divorce case showed that he taped


1
      It is not clear on what basis Ms. Isaacson’s state-law claim was rejected,
but no issue is raised on appeal with regard to this claim.

                                         -4-
their sons’ conversations with her at the advice of his divorce attorney and in

anticipation of litigation, not solely because he was concerned about the boys’

welfare, as stated in the sworn affidavit he had attached to his summary judgment

motion, so the exceptions to the federal wiretap act should not have applied.

See id. at 232-35. She did not attach Dr. Isaacson’s responses to her requests for

production of documents filed in the divorce case, which she also had not

presented to the district court during the summary judgment proceedings. She did

attach Dr. Isaacson’s April 1, 2011, deposition to her motion for new trial, but she

had not presented it to the district court during the summary judgment

proceedings or sought an extension of time in which to present the facts to be

adduced from his deposition. Dr. Isaacson contended in his opposition to

Ms. Isaacson’s motion for new trial that she had received his responses to her

requests for production in the custody case on March 29, 2010, more than a year

before the district court entered summary judgment in his favor. See Aplt. App.,

Vol. 2, at 384, 408-12. He also argued that she had waited until the April 1,

2011, discovery cut-off date to depose him, even though his counsel had offered

to submit him for deposition as early as August 18, 2010, several months before

he filed his motion for summary judgment. See id. at 387.

      The district court construed Ms. Isaacson’s motion for new trial as a motion

for reconsideration and denied it because Ms. Isaacson offered “no new evidence

previously unavailable,” and because her arguments were either “addressed in the

                                         -5-
Court’s April 6, 2011 Order [or] could have been raised in prior briefing.” Id.

at 451. Ms. Isaacson appeals from the district court’s July 28, 2011, order

denying her motion for new trial. 2


                   II. Issues on Appeal and Standards of Review

      “We review a grant of summary judgment de novo, applying the same legal

standard as the district court.” Tomlinson v. El Paso Corp., 653 F.3d 1281, 1286

(10th Cir. 2011). “Summary judgment is proper when there is ‘no genuine

dispute as to any material fact and the movant is entitled to judgment as a matter

of law.’” Id. (quoting Fed. R. Civ. P. 56(a)). “The evidence should be viewed in

the light most favorable to the non-moving party.” Id.



2
        Dr. Isaacson suggests that because Ms. Isaacson’s notice of appeal
designates only the July 28, 2011, order denying her motion for new trial, the
notice of appeal is insufficient to confer jurisdiction over all of Ms. Isaacson’s
arguments on appeal. Aplee. Br. at 1. His unsupported suggestion is without
merit. Although, technically, Ms. Isaacson’s May 2, 1011, motion for new trial
was improper because no trial had been held, the substance and timing of it made
it a tolling motion under Fed. R. App. P. 4(a)(4)(A). See Jones v. Nelson,
484 F.2d 1165, 1167 (10th Cir. 1973). The time for taking the appeal was
suspended by that timely filed motion. See id. at 1168. In addition, “it is clear
the appeal probes the validity of the summary judgment and we therefore find the
technical error [in the notice of appeal] to be harmless.” Id.; see also Sanabria v.
United States, 437 U.S. 54, 67 n.21 (1978) (citing Jones in support of the
proposition that “[a] mistake in designating the judgment appealed from is not
always fatal, as long as the intent to appeal from a specific ruling can fairly be
inferred by probing the notice and the other party was not misled or prejudiced”).
Thus, we may also review the district court’s decision on any interlocutory
orders. See Miami Tribe of Okla. v. United States, 656 F.3d 1129, 1137 (10th Cir.
2011).

                                        -6-
      But “although our review is de novo, we conduct that review from the

perspective of the district court at the time it made its ruling, ordinarily limiting

our review to the materials adequately brought to the attention of the district court

by the parties.” Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 671 (10th Cir.

1998). If the moving party carries his or her burden to “demonstrat[e] the

absence of a genuine issue of material fact[,]” id. at 670, “the burden shifts to the

nonmovant to go beyond the pleadings and set forth specific facts that would be

admissible in evidence in the event of trial from which a rational trier of fact

could find for the nonmovant[,]” id. at 671 (internal quotation marks omitted).

“To accomplish this, the facts must be identified by reference to affidavits,

deposition transcripts, or specific exhibits[.]” Id.; see Rule 56(c) (stating that

“[a] party asserting that a fact cannot be or is genuinely disputed must support the

assertion by: (A) citing to particular parts of materials in the record,” and listing

numerous examples of such materials).

      Ms. Isaacson raises numerous arguments on appeal challenging the district

court’s grant of summary judgment to Dr. Isaacson and its denial of her motion

for summary judgment and subsequent motion for new trial. We reject her

arguments because she did not raise them during the summary judgment

proceedings and because she seeks to rely on evidence that she neither presented

to the district court during the summary judgment proceedings nor has shown to

us to have been unavailable to her at that time.

                                          -7-
             Our adversarial system endows the parties with the
      opportunity—and duty—to craft their own legal theories for relief in
      the district court. It is the significant but limited job of our appellate
      system to correct errors made by the district court in assessing the
      legal theories presented to it, not to serve as a second-shot forum . . .
      where secondary, back-up theories may be mounted for the first time.

Richison v. Ernest Grp., Inc., 634 F.3d 1123, 1130 (10th Cir. 2011) (ellipsis in

original) (internal quotation marks omitted).

      During the summary judgment proceedings in the district court,

Ms. Isaacson chose to focus on the asserted res judicata effect of the state court’s

bench ruling on her suppression motion rather than to present evidence to

controvert Dr. Isaacson’s asserted facts. On appeal, she has not filed a reply brief

to controvert Dr. Isaacson’s contention that she is relying on new legal theories

and previously available evidence not submitted to the district court. She is not

permitted a second opportunity on appeal based on legal arguments and factual

submissions that were available before summary judgment was entered. See id.

      AFFIRMED.


                                                     Entered for the Court



                                                     Michael R. Murphy
                                                     Circuit Judge




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