Megan Kyte v. Marjorie Kyte; Pnc Bank

UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
_________________________________
MEGAN KYTE,
Plaintiff - Appellant,
v.
MARJORIE KYTE; PNC BANK,
Defendants - Appellees.
No. 22-1213
(D.C. No. 1:22-CV-00937-LTB-GPG)
(D. Colo.)
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before MATHESON, KELLY, and ROSSMAN, Circuit Judges.**
_________________________________
Plaintiff-Appellant Megan Kyte appeals from the district court’s dismissal of
her complaint for lack of subject matter jurisdiction. See Kyte v. Kyte, No. 22-cv-
00937, 2022 WL 3099231, at *2 (D. Colo. June 7, 2022). Exercising jurisdiction
under 28 U.S.C. § 1291, we dismiss Ms. Kyte’s appeal.
* This order and judgment is not binding precedent, except under the doctrines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.
** 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.
FILED
United States Court of Appeals
Tenth Circuit
August 31, 2022
Christopher M. Wolpert
Clerk of Court
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Background
Ms. Kyte alleges that Marjorie Kyte and PNC Bank illegally opened a joint
bank account with Ms. Kyte without her consent in violation of an Ohio law
concerning minors, claiming jurisdiction under 12 U.S.C. § 632. R. 26–28. Upon a
magistrate judge’s recommendation, the district court found that Ms. Kyte made “no
allegations . . . which support [federal question] jurisdiction under 12 U.S.C. § 632,”
R. 34, and dismissed the complaint without prejudice, R. 35–36. Ms. Kyte failed to
object to the dismissal and instead appealed. See R. 38. Upon an order to show
cause from this court, Ms. Kyte stated that she failed to object to the magistrate
judge’s recommendation “due to the vague and ambiguous response to the federal
question presented to the Court.” Resp. to Show Cause Order, at 1 (July 25, 2022).
Discussion
A litigant generally waives her right to appellate review where she fails to
object to a magistrate judge’s recommendation. Sinclair Wyo. Refin. Co. v. A&B
Builders, Ltd., 989 F.3d 747, 783 (10th Cir. 2021). This applies to pro se litigants
except “when (1) a pro se litigant has not been informed of the time period for
objecting and the consequences of failing to object, or when (2) the ‘interests of
justice’ require review.” Morales-Fernandez v. I.N.S., 418 F.3d 1116, 1119 (10th
Cir. 2005). Under the “interests of justice” exception, this court may consider,
among other factors, “a pro se litigant’s effort to comply, the force and plausibility of
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the explanation for [her] failure to comply, and the importance of the issues raised.”
Id. at 1120.
The magistrate judge filed his recommendation in this case on June 7, 2022,
and notified Ms. Kyte that she had 14 days to object. See Kyte, 2022 WL 3099231,
at *1 n.1. Ms. Kyte never made any attempt to object. See R. 35. Her response to
this court’s show cause order is cursory. And as discussed below, Ms. Kyte has not
alleged facts sufficient to establish federal question jurisdiction. Thus, Ms. Kyte has
waived her right to appellate review, and none of the pro se exceptions are
applicable.
Even if Ms. Kyte had not waived her right to appellate review, her appeal
would still fail. We review subject matter jurisdiction de novo. Wells Fargo Bank,
N.A. v. Mesh Suture, Inc., 31 F.4th 1300, 1306 (10th Cir. 2022). Federal courts have
limited jurisdiction. Home Depot U.S.A., Inc. v. Jackson, 139 S. Ct. 1743, 1746
(2019). The party asserting jurisdiction has the burden of establishing it. Devon
Energy Prod. Co., L.P. v. Mosaic Potash Carlsbad, Inc., 693 F.3d 1195, 1201 (10th
Cir. 2012). And while this court construes pro se complaints liberally, pro se
litigants “must comply with the same rules of procedure as other litigants.” Requena
v. Roberts, 893 F.3d 1195, 1205 (10th Cir. 2018).
Here, Ms. Kyte initially claimed federal question jurisdiction based on a
federal criminal statute. When the magistrate judge informed her of this defect, she
claimed diversity jurisdiction in an amended complaint without any elaboration. She
then settled on 12 U.S.C. § 632 in her second amended complaint. R. 26. Section
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632 concerns international banking, Sheet Metal Workers Int’l Ass’n, AFL-CIO v.
Seay, 693 F.2d 1000, 1004 (10th Cir. 1982), and confers federal question jurisdiction
only where the suit “arise[s] out of an offshore banking or financial transaction of
that federally chartered corporation,” Am. Int’l Grp., Inc. v. Bank of Am. Corp., 712
F.3d 775, 784 (2d Cir. 2013). As Ms. Kyte makes no such allegations, federal
question jurisdiction does not exist. Although Ms. Kyte suggests other provisions
that might confer jurisdiction on appeal, we do not consider them as they were not
presented to the district court. See Little v. Budd Co., 955 F.3d 816, 821 (10th Cir.
2020).
Ms. Kyte has moved for in forma pauperis (IFP) status to proceed on appeal
without prepayment of fees. In deciding whether to grant such a motion, a movant
“must show a financial inability to pay the required filing fees and the existence of a
reasoned, nonfrivolous argument on the law and facts in support of the issues raised
on appeal.” DeBardeleben v. Quinlan, 937 F.2d 502, 505 (10th Cir. 1991). The
eventual merit, or lack thereof, of the arguments raised is not the test. Ragan v. Cox,
305 F.2d 58, 60 (10th Cir. 1962). But in order to demonstrate a rational argument on
the law or the facts on appeal, a movant generally must make some attempt to engage
with the district court or magistrate judge’s reasoning and explain why it is incorrect.
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We DISMISS Ms. Kyte’s appeal, and DENY her motion to proceed IFP
because she makes no rational argument on the law or the facts.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
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