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

                             FOR THE TENTH CIRCUIT                       July 31, 2014
                                                                     Elisabeth A. Shumaker
                                                                         Clerk of Court
MICHAEL R. MCKINSEY;
DEBORAH E. MCKINSEY,

             Plaintiffs-Appellants,

v.                                                         No. 13-1335
                                              (D.C. No. 1:13-CV-00084-REB-MJW)
GMAC MORTGAGE, LLC;                                         (D. Colo.)
DEUTSCHE BANK NATIONAL
TRUST COMPANY AMERICAS, as
trustee for securitized trust Harborview
Mortgage Loan Trust Mortgage Loan
Pass-Through Certificates, Series
2006-14; WELLS FARGO BANK, N.A.;

             Defendants-Appellees.

BANK UNITED, FSB; PUBLIC
TRUSTEE OF GUNNISON COUNTY,
COLORADO; ALL UNKNOWN
PERSONS WHO CLAIM ANY
INTEREST IN THE SUBJECT
MATTER OF THIS ACTION,

               Defendants.


                             ORDER AND JUDGMENT *

*
      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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
Before MATHESON, PORFILIO, and PHILLIPS, Circuit Judges.


      Plaintiffs Michael and Deborah McKinsey, appearing pro se, appeal a district

court order that dismissed in part, and stayed in part, their claims against several

financial institutions arising out of the foreclosure of their home, and denied their

motion for default judgment against several of the defendants. Ms. McKinsey also

appeals the ruling in that same order denying her motion for a temporary restraining

order and preliminary injunction. We have jurisdiction to review only the denial of

injunctive relief, which we affirm.

                                      BACKGROUND

      In 2006, the McKinseys signed a note to obtain a mortgage loan of $525,000,

secured by a deed of trust to their home. They defaulted, and in 2012 the holder of

the note, defendant GMAC Mortgage, LLC (GMAC), foreclosed on their home. The

McKinseys filed a complaint in state court against GMAC and numerous other

financial institutions. Three of those defendants, GMAC, Deutsche Bank National

Trust Company Americas (Deutsche Bank) and Wells Fargo Bank, N.A. (Wells

Fargo); collectively referred to as the Appellees, removed the suit to federal court.

      GMAC then filed a notice of bankruptcy, advising the district court that as a

result of its prior Chapter 11 bankruptcy filing, all of the McKinseys’ claims against

it seeking monetary relief were subject to an automatic stay. Certain claims were


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permitted to proceed, however, including, as relevant here, claims asserted by a

borrower that relate “to the property that is the subject of the loan owned or serviced

by [GMAC] for the purposes of defending, unwinding, or otherwise enjoining or

precluding any foreclosure,” so long as such claims did not seek monetary relief of

any kind. Aplt. App. Vol. 1, at 130-31 (bankruptcy court order regarding GMAC

automatic stay).

      The Appellees moved to dismiss the as-then-amended complaint under

Fed. R. Civ. P. 12(b)(6) and 9(b). The McKinseys, now proceeding pro se, did not

respond directly to the motion to dismiss; instead they filed a motion seeking default

judgment against the Appellees. 1 The magistrate judge issued a detailed Report and

Recommendation (R&R) on these motions. While the R&R was under review,

Ms. McKinsey filed a motion for a temporary restraining order (TRO) and/or a

preliminary injunction. 2 She requested the district court to order the Appellees to

1
       The McKinseys also filed a motion to voluntarily dismiss all of the defendants
without prejudice under Fed. R. Civ. P. 41(a). The magistrate judge recommended
denying the motion as to the Appellees but granting it as to all the remaining
defendants, namely Bank United, FSB; Public Trustee of Gunnison County Colorado;
and All Unknown Persons Who Claim Any Interest in the Subject Matter of this
Action. Aplt. App., Vol. 2, Part 1 at 115, 130. It is unclear from the district court’s
order whether it adopted this recommendation to deny the Rule 41(a) only as to the
Appellees or if it denied the Rule 41(a) motion as to all defendants. See id. Vol 2,
Part 2 at 395. The McKinseys, however, do not appeal the district court’s Rule 41(a)
ruling. Aplt. Br. at 4.
2
       Although Ms. McKinsey purported to submit this motion on behalf of both
McKinseys, only she signed the pleading and a pro se litigant may not represent other
pro se litigants in federal court. See Fed. R. Civ. P. 11(a); Fymbo v. State Farm Fire
& Cas. Co., 213 F.3d 1320, 1321 (10th Cir. 2000).

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stop any sale or transfer of the residential real property and to return it and related

personal property, including a hot tub and gazebo.

       The district court, adopting the R&R, (1) denied the McKinseys’ motion for

default judgment, rejecting their claim that Appellees had failed to timely file an

answer; (2) dismissed with prejudice under Rules 12(b)(6) and 9(b) all claims against

Deutsche Bank and Wells Fargo; and (3) stayed in part and dismissed in part under

Rules 12(b)(6) and 9(b) the claims against GMAC. As to GMAC, it (a) dismissed

with prejudice the claims for lack of standing; quiet title; declaratory relief; and

rescission, except to the extent the McKinseys sought monetary damages as to these

claims; and (b) stayed the claims for fraud in the concealment; fraud in the

inducement; intentional infliction of emotional distress; slander of title; violations of

the Truth in Lending Act; violations of the Real Estate Settlement Procedures Act;

and any monetary damages aspect as to any of the McKinseys’ claims.

       Finally, the district court denied Ms. McKinsey’s motion for a TRO or

preliminary injunction, which was not subject to the automatic stay. It ruled

Ms. McKinsey had failed to show a substantial likelihood that she would prevail on

the merits, one of the elements required to obtain injunctive relief. The court then

administratively closed the case.

                                     JURISDICTION

       The McKinseys’ appeal challenges the district court’s denial of their motion

for default judgment and its dismissal under Rules 12(b)(6) and 9(b) of the claims in


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their amended complaint. Ms. McKinsey also appeals the district court’s denial of

her motion for TRO and preliminary injunction. With the sole exception of the

district court’s denial of Ms. McKinsey’s request for a preliminary injunction, we

lack appellate jurisdiction to review the McKinseys’ challenges.

      Generally, this court has jurisdiction to review only the final decisions of a

district court. Miller v. Basic Research, LLC, 750 F.3d 1173, 1175 (10th Cir. 2014)

(citing 28 U.S.C. § 1291). “A final judgment is one that terminates all matters as to

all parties and causes of action.” Utah v. Norton, 396 F.3d 1281, 1286 (10th Cir.

2005) (internal quotation marks omitted). Here, the district court’s order did not

resolve all of the claims against GMAC; it stayed those claims that were subject to

the bankruptcy automatic stay. 3 An otherwise non-final order does not become final

and appealable because the district court administratively closed the case after

issuing the order. Crystal Clear Commc’ns, Inc. v. Sw. Bell Tel. Co., 415 F.3d 1171,

1176 (10th Cir. 2005); see also Freeman v. Pittsburgh Glass Works, LLC, 709 F.3d

240, 247 (3d Cir. 2013) (same, explaining that administrative closings only remove a

case from the court’s active docket).

      Thus, we lack jurisdiction to review the district court’s ruling on the

Appellees’ motion to dismiss under Rules 12(b)(6) and 9(b). We also lack

jurisdiction to review the district court’s denial of the McKinseys’ motion for default
3
        Furthermore, if the district court denied the McKinseys’ Rule 41(a) motion as
to all defendants, then none of the claims against the remaining defendants have been
resolved.


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judgment at this interlocutory stage. See Grandbouche v. Clancy, 825 F.2d 1463,

1468 (10th Cir. 1987) (denial of motion for default judgment is a non-final

interlocutory order).

       We do have appellate jurisdiction, however, to review the district court’s

denial of Ms. McKinsey’s motion for injunctive relief because 28 U.S.C.

§ 1292(a)(1) permits appellate review of district court orders “granting, continuing,

modifying, refusing or dissolving injunctions.” Generally, the denial of a temporary

restraining order is not appealable. Populist Party v. Herschler, 746 F.2d 656, 661

n.2 (10th Cir. 1984) (per curiam). But here it is appealable because “the order in

reality operate[d] as [the denial of] a preliminary injunction.” Id. (internal quotation

marks omitted); § 1292(a)(1).

                                       DISCUSSION

       A party seeking a preliminary injunction must demonstrate four elements:

(1) a likelihood of success on the merits; (2) a likelihood that the party will suffer

irreparable harm in the absence of a preliminary injunction; (3) that the balance of

equities tip in the party's favor; and (4) that the injunction serves the public interest.

Little v. Jones, 607 F.3d 1245, 1251 (10th Cir. 2010). When a district court denies a

motion for a preliminary injunction, we review that order for abuse of discretion

only. Id. at 1250. A district court abuses its discretion when its conclusion rests on

an erroneous legal premise or when its conclusion is arbitrary or manifestly

unreasonable. Id. After reviewing the record, we are satisfied that the district court


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did not abuse its discretion in concluding that Ms. McKinsey failed to establish

likelihood of success on the merits.

      The McKinseys’ motion to submit supplemental appendix is granted.

We affirm the district court’s denial of Ms. McKinsey’s motion for injunctive relief,

and we dismiss the remainder of the appeal for lack of jurisdiction.


                                               Entered for the Court


                                               John C. Porfilio
                                               Circuit Judge




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