Payn v. Kelley, 10th Cir. (2017)

FILED
United States Court of Appeals

UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT July 27, 2017

_________________________________
Elisabeth A. Shumaker
Clerk of Court
RAY WILBER PAYN,
Plaintiff - Appellant,
v. No. 17-6011
(D.C. No. 5:15-CV-01089-D)
GERALD E. KELLEY, individually and in (W.D. Okla.)
his professional capacity a/k/a Notary
Public #02013865 d/b/a OBA #4923
Oklahoma Estate Tax Return Preparer for
Wilbur Noel Payn and Trustee of the
Kelley & Kelley P.C. Profit Sharing Trust,
Oklahoma Professional Corporation;
GERALD E. KELLEY, LLC, Domestic
Limited Liability Company; JAMES P.
KELLEY, Trustee of the Kelley & Kelley
P.C. Profit Sharing Trust, Oklahoma
Professional Corporation; KELLEY &
KELLEY PC; KELLEY KELLEY &
GREGORY, Oklahoma Professional
Corporation; RICHARD C. LABARTHE,
individually and in his professional
capacities d/b/a as Richard C Labarthe,
Attorney, Richard C Labarthe Law Offices
PC, Eastwood Development Corp.,
Eastwood Development Co. LTD, and
Eastwood Development Corporation;
RICHARD L. ANDEEL, individually;
ANDEEL PC, professional capacities
Oklahoma; EDWIN JENNINGS
SHAPARD, Deceased; WILLIAM
SHAPARD; STANDLEY MALASKE;
SANDRA GALES SHAPARD,
individually widow rights of survivorship
of Estate of Edwin (Eddie) Shapard
d/b/a OBA #8119 and in her professional
capacity as Secretary/Treasurer and Sandra
Shapard Successor of Eastwood
Development Corporation; PIONEER
PIES, Oklahoma (Mocked) Corporations
d/b/a Rainbow Consulting; PAULA ENIX,
Individually and in her professional
capacities as Notary Public #01007338,
Branch Manager, Arvest Bank, Midwest
City, Oklahoma a/k/a Paula K Enix;
MARILYN KAY PAYN RAMSEY, Vice
President and individually and in her
Professional Capacities as Personal
Representative of the Estate of Wilbur
Payn; Eastgate Co. of Okla., Inc., an Okla.
Corp.; Vice President, Board Member,
Stockholder of Eastwood Development
Corporation; Eastwood Development
Corp.; EDC; Rainbow Consulting; a/k/a
Marilyn K Ramsey; a/k/a Marilyn Ramsey;
JAMES LEE RAMSEY, individually,
professional capacities, and Joint Tenants
and Not as Tenants in Common With the
Right of Survivorship; PAULA K. PAYN,
Joint Tenancy Warranty Deed; JOE
LEROY PAYN, a/k/a Joe L Payn, a/k/a
Joe Payne, d/b/a Joe Payne Construction
Inc., d/b/a Payn Construction; Payn
Construction; JANICE A DOERGE;
SMOKEY MCKINNEY;
Defendants - Appellees,
and
EASTWOOD DEVELOPMENT CORP.;

WILBUR PAYN MANAGEMENT CO.
INC.; EASTGATE COMPANY OF
OKLAHOMA,
Defendants.
2
_________________________________
ORDER AND JUDGMENT*

_________________________________
Before MATHESON, PHILLIPS, and McHUGH, Circuit Judges.

_________________________________
Ray Wilbur Payn, appearing pro se, appeals the district courts order
dismissing his amended complaint against eighty defendants for lack of subject
matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1). Exercising
jurisdiction under 28 U.S.C. 1291, we affirm.
I.
Payn filed a complaint alleging, generally, embezzlement, business fraud and
theft by the defendants, who include members of his family, attorneys, accountants,
trustees, and other persons having a connection to a Payn Family Trust.1 His
complaint made conclusory, disjointed allegations that the defendants created
fraudulent and forged documents and bank borrowing resolutions, took over his
businesses and assets, and fraudulently transferred bank funds. Payn claimed
defendants violated several Oklahoma state fraud statues; federal criminal statutes;
*
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.
1
Because the identity of the defendants does not affect the legal analysis, we
do not specifically identify them.
3
the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C.
1961-1968; and the Uniting and Strengthening America by Providing Appropriate
Tools Required to Intercept and Obstruct Terrorism Act of 2001 (Patriot Act),
Pub. L. No. 107-56, 115 Stat. 272 (2001). Payn made little or no attempt to articulate
his factual allegations with any particularity or to link the defendants to his asserted
legal claims with any specificity.
The district court dismissed that complaint without prejudice under
Rule 12(b)(1), finding no viable source of federal jurisdiction. As Payn did not assert
diversity jurisdiction, it construed the complaint as seeking jurisdiction under
28 U.S.C. 1331 (federal question) and 1367 (supplemental jurisdiction). It ruled
that Payn failed to plead any plausible, colorable claim under those provisions of the
RICO Act or the Patriot Act that do allow for a private right of action. It explained
that the federal criminal statutes Payn relied upon did not provide for a private right
of action, and that it could not exercise supplemental jurisdiction over Payns state-
law claims because he failed to establish any federal jurisdiction.
Payn then filed an amended complaint that recited the same allegations and the
same RICO, Patriot Act, and federal criminal claims and state fraud claims as alleged
in his original complaint, but additionally claimed that the defendants conspired
against him in violation of the Fourteenth Amendment and 42 U.S.C. 1985. Payn
alleged the defendants, collectively, confiscated unspecified assets under the premise
of being family, friends, and fiduciaries, made him responsible for liabilities, and
forged his name on documents to fit their schemes. He also alleged that one of the
4
defendants deliberately hit him with his car, and that he suspected some of the
defendants may have tried to break into his home or harassed him with telemarketing
calls. He sought damages and injunctive relief. But Payne did not allege that any of
the defendants acted under color of state law.
The defendants filed separate motions to dismiss under Rule 12(b)(1), which
the district court granted.2 It ruled Payn failed to remedy any of the jurisdictional
defects in his reasserted claims. As to the new Fourteenth Amendment claim, the
court ruled that individual litigants do not have a cause of action against non-state
actors directly under the Fourteenth Amendment. See Rendell-Baker v. Kohn,
457 U.S. 830, 837 (1982) ([T]he Fourteenth Amendment, which prohibits the states
from denying federal constitutional rights and which guarantees due process, applies
to acts of the states, not to acts of private persons or entities.). It further ruled that
1985(1) by its terms only applies to conspiracies to interfere with the performance
of duties by federal officers, id., which Payn hadnt alleged, nor had he alleged the
defendants acted with any racial, or protected-class-based invidious discriminatory
animus, which is required to state a claim under 1985(2) and (3), see Jones v.
Norton, 809 F.3d 564, 578 (10th Cir. 2015), cert. denied, 137 S. Ct. 197 (2016).
Payn appeals.
2
The district court initially dismissed the amended complaint without
prejudice when Payn failed to respond to any of the motions. Payn moved to alter or
amend the judgment, which the court granted, and, after consideration of Payns
response to the dismissal motions, dismissed his amended complaint on the merits.
5
II.
We review the district courts dismissal of Payns complaint for lack of subject
matter jurisdiction de novo. Becker v. Ute Indian Tribe of the Uintah & Ouray
Reservation, 770 F.3d 944, 946 (10th Cir. 2014). The party who seeks to invoke
federal jurisdiction bears the burden of establishing that such jurisdiction is proper.
Id. at 947. As defendants asserted a facial attack of the sufficiency of Payns
complaints, we take as true all well-pled factual allegations. Peterson v. Martinez,
707 F.3d 1197, 1205-06 (10th Cir. 2013); see also Dudnikov v. Chalk & Vermilion
Fine Arts, Inc., 514 F.3d 1063, 1070 (10th Cir. 2008) (explaining that well-pled
allegations are plausible, non-conclusory, and non-speculative). Mere conclusory
allegations of jurisdiction are not enough. Peterson, 707 F.3d at 1206.
Although claims asserted under the RICO Act, the Patriot Act and 1985
ordinarily qualify for federal question jurisdiction under 1331, jurisdiction under
1331 exists only where there is a colorable claim arising under federal law.
McKenzie v. U.S. Citizenship & Immigration Servs., Dist. Dir., 761 F.3d 1149, 1156
(10th Cir. 2014) (internal quotation marks omitted). [A] court may dismiss for lack
of subject-matter jurisdiction when the claim is so insubstantial, implausible,
foreclosed by prior decisions of this Court, or otherwise completely devoid of merit
as not to involve a federal controversy. Id. at 1156-57 (citations and quotation
omitted). That is the case here.
On appeal, Payn generally asserts the district court erred in dismissing his
claims, but he does not articulate any meritorious arguments as to why he believes
6
the district courts jurisdictional rulings were in error. He argues the district court
erred in ruling the RICO and Patriot Acts do not apply to private citizens who
commit fraud. This misstates the district courts rulings. The district court correctly
recognized that these statutes permit private actions in very limited circumstances,
but ruled that Payn had made only general, vague allegations that the eighty
defendants violated these laws, without asserting any of the predicate elements of a
potential private action with any degree of specificity or particularity and without
linking any defendant to any particular action. 3 We agree that Payns pleadings were
insufficient to confer federal jurisdiction.
Payn asserts new legal theories and claims on appeal that were never raised
before the district court, generally referring to the Bill of Rights, the Fifth
Amendment, the Declaration of Independence, and the Sarbanes-Oxley Act. As Payn
did not raise these claims before the district court, he has waived them on appeal.
3
To assert a civil private RICO claim, a plaintiff must allege with particularity
(1) investment in, control of, or conduct of (2) an enterprise (3) through a pattern (4)
of racketeering activity, which is defined . . . as any act which is indictable under
federal law. Tal v. Hogan, 453 F.3d 1244, 1261 (10th Cir. 2006) (internal quotation
marks omitted). Payns complaint contained little more than a citation to the RICO
Act, untethered to his limited factual allegations, which were general, vague, and
conclusory. The only Patriot Act allegation Payn references on appeal is an assertion
that one of the defendants violated the Patriot Act by allowing another defendant to
open bank accounts under his and Payns names through forgery. Payn does not
explain why he believes this is a basis for asserting a private right action against all
of the defendants under the Patriot Act. There is a provision of the Patriot Act that
permits individuals to bring suit against the United States, 18 U.S.C. 2712(a) (for
making unauthorized disclosures of information), but Payn is not suing the United
States.
7
See Daigle v. Shell Oil Co., 972 F.2d 1527, 1539 (10th Cir. 1992) (stating that we
have no duty to consider waived arguments supporting subject-matter jurisdiction).
We have reviewed Payns brief and his complaints liberally. See Garrett v.
Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005) (A pro se
litigants pleadings are to be construed liberally and held to a less stringent standard
than formal pleadings drafted by lawyers.) (alteration and internal quotation marks
omitted)). We nonetheless agree with the district court that Payns amended
complaint does not provide any plausible basis to conclude the alleged actions by
defendants violated any of the federal rights cited by Payn, and that his claims are so
implausible and insubstantial that they do not confer federal question jurisdiction.
See McKenzie, 761 F.3d at 1156-57.
The judgment is affirmed.
Entered for the Court
Carolyn B. McHugh
Circuit Judge

Payn v. Kelley, 10th Cir. (2017)

Uploaded by

Copyright:

Available Formats

Payn v. Kelley, 10th Cir. (2017)

Uploaded by

Document Information

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Payn v. Kelley, 10th Cir. (2017)

Uploaded by

Copyright:

Available Formats

FILED

United States Court of Appeals

FOR THE TENTH CIRCUIT July 27, 2017

EASTWOOD DEVELOPMENT CORP.;

ORDER AND JUDGMENT*

Before MATHESON, PHILLIPS, and McHUGH, Circuit Judges.

matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1). Exercising

jurisdiction under 28 U.S.C. 1291, we affirm.

Payn filed a complaint alleging, generally, embezzlement, business fraud and

complaint made conclusory, disjointed allegations that the defendants created

1961-1968; and the Uniting and Strengthening America by Providing Appropriate

legal claims with any specificity.

The district court dismissed that complaint without prejudice under

diversity jurisdiction, it construed the complaint as seeking jurisdiction under

28 U.S.C. 1331 (federal question) and 1367 (supplemental jurisdiction). It ruled

law claims because he failed to establish any federal jurisdiction.

the defendants acted under color of state law.

actors directly under the Fourteenth Amendment. See Rendell-Baker v. Kohn,

defendants acted with any racial, or protected-class-based invidious discriminatory

Id. at 947. As defendants asserted a facial attack of the sufficiency of Payns

complaints, we take as true all well-pled factual allegations. Peterson v. Martinez,

allegations are plausible, non-conclusory, and non-speculative). Mere conclusory

allegations of jurisdiction are not enough. Peterson, 707 F.3d at 1206.

of subject-matter jurisdiction when the claim is so insubstantial, implausible,

foreclosed by prior decisions of this Court, or otherwise completely devoid of merit

as not to involve a federal controversy. Id. at 1156-57 (citations and quotation

omitted). That is the case here.

insufficient to confer federal jurisdiction.

Amendment, the Declaration of Independence, and the Sarbanes-Oxley Act. As Payn

have no duty to consider waived arguments supporting subject-matter jurisdiction).

See McKenzie, 761 F.3d at 1156-57.

The judgment is affirmed.

Entered for the Court

You might also like