Joe H. Lucero Jr. v. Hsbc Bank USA, N.a.

UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
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JOE H. LUCERO JR.,
Plaintiff - Appellant,
v.
HSBC BANK USA, N.A.,
Defendant - Appellee.
No. 20-2031
(D.C. No. 1:19-CV-01110-JAP-LF)
(D. N.M.)
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ORDER AND JUDGMENT*
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Before PHILLIPS, McHUGH, and CARSON, Circuit Judges.
_________________________________
Joe H. Lucero Jr., proceeding pro se, sued HSBC Bank USA, N.A.
(“HSBC Bank”) in state court. HSBC Bank removed the suit to federal court based
on diversity of citizenship and then moved to dismiss the complaint. Mr. Lucero,
however, did not respond to HSBC Bank’s motion. Pursuant to its local rule, the
district court considered the failure to respond as consent to grant the motion. It
* 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
FILED
United States Court of Appeals
Tenth Circuit
February 25, 2021
Christopher M. Wolpert
Clerk of Court
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therefore granted the motion to dismiss and dismissed the case without prejudice.
Exercising jurisdiction under 28 U.S.C. § 1291, 1 we affirm.
Mr. Lucero’s opening brief discusses various grievances against HSBC Bank
and other persons involved in foreclosing on his house. But the brief does not
address his failure to respond to the motion to dismiss or otherwise argue how the
district court was wrong to grant the motion and close the case. We read the filings
of pro se parties liberally. See Garrett v. Selby Connor Maddux & Janer, 425 F.3d
836, 840 (10th Cir. 2005). However, we “cannot take on the responsibility of serving
as the litigant’s attorney in constructing arguments and searching the record.” Id.
An appellant must attack the district court’s reasons for its decisions, and advancing
other contentions “will not help the appellant if the reasons that were given by the
district court go unchallenged.” Nixon v. City & Cnty. of Denver, 784 F.3d 1364,
1366 (10th Cir. 2015). While “[r]ecitation of a tale of apparent injustice may assist
in [challenging the district court’s decision], . . . it cannot substitute for legal
argument.” Id. Because Mr. Lucero’s opening brief fails to address the district
1 Although the dismissal was without prejudice, the decision is reviewable
under § 1291 because the district court’s order dismissed the case, not just the
complaint. See Moya v. Schollenbarger, 465 F.3d 444, 449 (10th Cir. 2006)
(recognizing that “a dismissal of the entire action is ordinarily final” (internal
quotation marks omitted)).
Moreover, Mr. Lucero’s notice of appeal was timely, even though it was filed
61 days after the decision, because the district court never entered a separate
judgment under Fed. R. Civ. P. 58. See Fed. R. App. P. 4(a)(7)(A)(ii) (providing that
when the district court does not enter a separate Rule 58 judgment, judgment is
deemed entered 150 days after entry of the order appealed from); Fed. R. Civ. P.
58(c)(2) (same).
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court’s reasoning, we affirm the dismissal of the case. See id. at 1366, 1369; Garrett,
425 F.3d at 841.
HSBC Bank’s motion to take judicial notice is denied as moot. The district
court’s judgment is affirmed.
Entered for the Court
Carolyn B. McHugh
Circuit Judge
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