A. V. Avington, Jr.; Patricia L. Avington v. Bank of America, N.a.; Merscorps Holding Inc.

UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
_________________________________
A. V. AVINGTON, JR.; PATRICIA L.
AVINGTON,
Plaintiffs - Appellants,
v.
BANK OF AMERICA, N.A.;
MERSCORPS HOLDING INC.,
Defendants - Appellees.
No. 20-5068
(D.C. No. 4:17-CV-00021-JED-FHM)
(N.D. Okla.)
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before MATHESON, BRISCOE, and CARSON, Circuit Judges.
_________________________________
A.V. Avington, Jr., and Patricia L. Avington, proceeding pro se, 1 appeal the
district court’s dismissal, under Fed. R. Civ. P. 12(b)(6), of their claims against Bank
* 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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 Avingtons proceed pro se, we construe their arguments liberally,
but we “cannot take on the responsibility of serving as [their] attorney in constructing
arguments and searching the record.” Garrett v. Selby Connor Maddux & Janer,
425 F.3d 836, 840 (10th Cir. 2005).
FILED
United States Court of Appeals
Tenth Circuit
May 24, 2021
Christopher M. Wolpert
Clerk of Court
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of America, N.A., and Merscorps Holding Inc. (“Merscorps”). Exercising
jurisdiction under 28 U.S.C. § 1291, we affirm.
I. BACKGROUND
The Avingtons filed a complaint in January 2017. The district court construed
it as attempting to assert claims for fraud; racial discrimination in violation of the
Fair Housing Act (FHA), 42 U.S.C. § 3604(b), and Equal Credit Opportunity Act
(ECOA), 15 U.S.C. § 1691e; violation of the Racketeer Influenced and Corrupt
Organizations (RICO) Act, 18 U.S.C. § 1964(c); and noncompliance with the
Troubled Asset Relief Program (TARP) and Home Affordable Modification Program
(HAMP).
The Avingtons alleged Bank of America pursued foreclosure proceedings
against them from 2008 to 2011. They also alleged they “beg[a]n to receive
notifications from the Office of Attorney General State of Oklahoma informing the
Plaintiff(s) that they had been a victim of mortgage fraud . . . with respect to their
foreclosure or loan modification with Bank of America Corporation, et al, in March
of 2012.” R. at 15.
The district court dismissed all claims but granted the Avingtons leave to
amend, other than the TARP and HAMP claims. The Avingtons filed an amended
complaint. It omitted many of the background facts appearing in the original
complaint, but it attempted to address the deficiencies the district court identified in
its first dismissal order. The district court construed the amended complaint “as
bringing RICO and fraud claims and “as incorporating the initial [c]omplaint to the
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extent its allegations remain relevant.” Id. at 338. The court dismissed the amended
complaint because (1) it failed to state a valid RICO or fraud claim and (2) the statute
of limitations barred any such claims. The court denied the Avingtons’ request to
amend their complaint again, concluding such amendment “would be futile and
further waste judicial resources.” Id. at 340. The Avingtons appeal.
II. DISCUSSION
The Avingtons argue the district court should have (1) concluded their
amended complaint stated a viable RICO and fraud claim, (2) equitably tolled the
statute of limitations, (3) permitted them to file a second amended complaint, and
(4) applied the doctrine of equitable estoppel. 2
“We review de novo a district court’s decision on a Rule 12(b)(6) motion for
dismissal for failure to state a claim. Under this standard, we must accept all the
well-pleaded allegations of the complaint as true and must construe them in the light
most favorable to the plaintiff.” Waller v. City & Cnty. of Denver, 932 F.3d 1277,
1282 (10th Cir. 2019) (italics, citation, and quotations omitted). We also review de
novo “[w]hether a court properly applied a statute of limitations.” Nelson v. State
Farm Mut. Auto. Ins. Co., 419 F.3d 1117, 1119 (10th Cir. 2005). We ordinarily
review the denial of leave to amend for abuse of discretion, but “when denial is based
2 The Avingtons’ brief makes no mention of claims for discrimination under
the FHA or ECOA. Thus, any arguments related to those claims are deemed waived,
and we do not consider them. See Folks v. State Farm Mut. Auto. Ins. Co., 784 F.3d
730, 737 (10th Cir. 2015).
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on a determination that amendment would be futile, our review for abuse of
discretion includes de novo review of the legal basis for the finding of futility.”
Miller ex rel. S.M. v. Bd. of Educ. of Albuquerque Pub. Schs., 565 F.3d 1232, 1249
(10th Cir. 2009).
We agree with the district court that, even if the Avingtons’ amended
complaint properly stated claims for RICO and common-law fraud, the statute of
limitations had expired. “[A] civil federal RICO action is subject to a four-year
limitations period,” Dummar v. Lummis, 543 F.3d 614, 621 (10th Cir. 2008), and the
statute of limitations for the Avingtons’ common-law fraud claim is two years, see
Okla. Stat. tit. 12, § 95(A)(3). For RICO claims,
[w]hile the Supreme Court has not settled upon a definitive
rule for when the limitations clock starts running, it has
announced two possibilities: either when the plaintiff knew
or should have known of his injury (the injury-discovery
rule); or when the plaintiff was injured, whether he was
aware of the injury or not (the injury-occurrence rule).
Cory v. Aztec Steel Bldg., Inc., 468 F.3d 1226, 1234 (10th Cir. 2006). The
limitations period for a common-law fraud claim in Oklahoma begins to run upon
“discovery of the fraud.” tit. 12, § 95(A)(3).
The events described in the amended complaint occurred between 2008 and
2011. The Avingtons allege the Oklahoma Attorney General notified them that they
had been victims of mortgage fraud in March 2012. The four-year statute of
limitations therefore expired, at the latest, in March 2016, approximately ten months
before the Avingtons filed suit.
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We reject the Avingtons’ argument that the district court should have equitably
tolled the statutes of limitations. We review the district court's refusal to apply
equitable tolling for an abuse of discretion. Garrett v. Fleming, 362 F.3d 692, 695
(10th Cir. 2004). “Generally, equitable tolling requires a litigant to establish two
elements: (1) that he has been pursuing his rights diligently, and (2) that some
extraordinary circumstance stood in his way.” Yang v. Archuleta, 525 F.3d 925, 928
(10th Cir. 2008) (quotations omitted). The Avingtons point to no extraordinary
circumstances here. Although they criticize the court’s dismissal of their claims, see
Aplt. Br. at 8 (“Appellants faced an extraordinary circumstance that the statute of
limitation allegedly was not met as accused by [the district court].”), it is circular to
claim the enforcement of a statute of limitations alone presents an extraordinary
circumstance that justifies equitable tolling.
We also discern no abuse of discretion in the district court’s denial of the
Avingtons’ request for leave to file a second amended complaint. They cite cases
about courts’ affording latitude to pro se parties, but “[a]lthough a pro se litigant’s
pleadings are to be construed liberally and held to a less stringent standard than
formal pleadings drafted by lawyers, this court has repeatedly insisted that pro se
parties follow the same rules of procedure that govern other litigants.” Garrett v.
Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005) (citation,
brackets, and quotations omitted). The district court liberally construed the
Avingtons’ complaints, even allowing allegations in the first complaint to support the
claims asserted in the second. The Avingtons’ claims nonetheless are time-barred.
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They have presented no argument to the district court or this court suggesting
otherwise. The district court therefore correctly concluded further amendment would
be futile. 3
III. CONCLUSION
We affirm the district court’s judgment. We deny the Avingtons’ motion to
proceed in forma pauperis because they have not presented “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).
Entered for the Court
Scott M. Matheson, Jr.
Circuit Judge
3 In light of our upholding the district court’s conclusions that the Avingtons’
claims are time barred and equitable tolling does not apply, we need not address the
merits of their argument that the amended complaint stated RICO and fraud claims.
We also decline to address their equitable estoppel argument as both forfeited and
inadequately briefed. See Folks, 784 F.3d at 741; Garrett, 425 F.3d at 840–41.
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