Filed: Oct. 16, 2013
Latest Update: Mar. 28, 2017
Summary: (SFCG), located in Santa Fe, New Mexico.Silver found six investors to purchase preferred stock in iboats.their investment agreements. See Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 679 (10th Cir.named parties in interest. The district court did not err in dismissing Silvers claims.
FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT October 16, 2013
Elisabeth A. Shumaker
Clerk of Court
DAVID SILVER,
Plaintiff-Appellant,
v. No. 13-2091
(D.C. No. 1:12-CV-00948-JAP-RHS)
BRUNO VASSEL, III; GORDON (D. N.M.)
PETERSON; CLINTON H. BULLOCK,
Defendants-Appellees.
ORDER AND JUDGMENT*
Before KELLY, TYMKOVICH, and PHILLIPS, Circuit Judges.
David Silver appeals the district court’s dismissal of his fraud, racketeering,
disparagement, and negligent infliction of emotional distress (“NIED”) claims.
Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.
Silver is the founder and CEO of an investment group, Santa Fe Capital Group
(“SFCG”), located in Santa Fe, New Mexico. In 2002, SFCG entered into an
*
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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
agreement with iboats, inc. (“iboats”), a Utah corporation, under which Silver would
locate investors to provide startup capital to the company in exchange for preferred
stock. Under the agreement, SFCG would then receive a percentage of the securities
purchased by the investors that Silver introduced to iboats.
Silver found six investors to purchase preferred stock in iboats. According to
him, although iboats grew exponentially, the company paid no dividends or interest
on the preferred stock to those six investors, and violated numerous covenants to
their investment agreements. In 2012, iboats’ counsel, Clinton Bullock, contacted
the preferred shareholders and made offers to buy or convert to common stock their
preferred shares. After the investors informed Silver of the offers, he contacted
iboats’ CFO, Gordon Peterson, and demanded that iboats pay each of the six
investors a specified return on their original investment. But iboats apparently did
not do so.
Proceeding pro se, Silver then brought a diversity action in the District of New
Mexico for fraud and racketeering based on alleged violations of the contract
between SFCG and iboats. He also asserted claims of disparagement and NIED
based on the fact that Bullock, Peterson, and CEO Bruno Vassel (hereinafter
“Defendants”) communicated with the investors without including him, thus
allegedly damaging his reputation.
The Defendants moved to dismiss the complaint and the district court granted
the motion. The court first dismissed Silver’s fraud and racketeering charges for lack
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of standing. The court reasoned that because those claims were based on the contract
between SFCG and iboats, only SFCG had standing to sue to enforce the contract’s
terms. Nor could Silver bring a claim on SFCG’s behalf because he was not a
lawyer. See Rowland v. Cal. Men’s Colony, 506 U.S. 194, 201-202 (1993) (a
business entity can only appear in court through an attorney and not a corporate
officer appearing pro so). The court also held that even if Silver could bring his
claim, dismissal was appropriate because the lawsuit did not name the real party in
interest, iboats, as it was the company—and not the Defendants individually—with
which SFCG contracted.
As to the disparagement and NIED claims, the district court concluded that it
lacked personal jurisdiction over the Defendants because none of them had
established minimum contacts with the District of New Mexico such that they should
reasonably anticipate being haled into court there. See World-Wide Volkswagon
Corp. v. Woodson, 444 U.S. 286, 297 (1980). The court alternatively found that
dismissal was appropriate for improper venue.
On appeal, Silver does not challenge the district court’s conclusion about the
dismissal of his disparagement and NIED claims, thus review of those claims is
waived. See Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 679 (10th Cir. 1998).
Rather, Silver challenges the court’s dismissal of his fraud and racketeering claims
on two grounds. First, Silver alleges that despite his pro se status, the district court
denied him any leniency and instead held him to the same standards as a practicing
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attorney.1 See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991) (“A pro se
litigant’s pleadings are to be construed liberally and held to a less stringent standard
than formal pleadings drafted by lawyers.”). It is true that while discussing his pro se
status, the court noted Silver’s numerous federal cases and experience with federal
litigation. But it only did so in finding that he had sufficient experience in federal
court to recognize the obvious jurisdictional and procedural defects with his
complaint—the same defects, it should be noted, for which all pro se litigants are
held accountable. See Hall v. Witteman,
584 F.3d 859, 863-64 (10th Cir. 2009).
Second, Silver contends that by acting adversely to iboats’ interests, the
Defendants are liable in their individual capacity and are therefore the properly
named parties in interest. See Mosier v. Callister, Nebeker & McCullough, 546 F.3d
1271, 1276 (10th Cir. 2008) (noting that under the “adverse interest exception,”
conduct by corporate officers acting in their own interest and adverse to the company
will not be imputed to the company). However, Silver’s only support for this
contention is a conclusory statement that the Defendants caused the preferred
stockholders to be “angry,” and “[t]o anger one’s earliest stockholders clearly hurts
the corporation’s interests.” Aplt. Br. at 14. Moreover, Silver ignores entirely that
the court also dismissed his claims because he lacked standing to bring them on his
company’s behalf. The district court did not err in dismissing Silver’s claims.
1
It is worth noting that Silver suggests in his brief that he is, in fact, a disbarred
attorney. Aplt. Br. at 12.
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Accordingly, the judgment of the district court is affirmed.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
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