SKY HARBOR AIR SERVICE, INC., a Wyoming corporation; H. Paul Martin, Plaintiffs-Appellants, v. Shelly REAMS, Scott Hinderman, William L. Hickman, Kevin Painter, and James Jagusch, individually and in their official capacities; Dave Haring, individually and in his official capacity as Cheyenne Regional Airport Manager; Great Lakes Aviation, Ltd., d/b/a Great Lakes Airlines; Cheyenne Regional Airport Board, Defendants-Appellees.
Nos. 11-8004, 11-8025, 11-8062.
United States Court of Appeals, Tenth Circuit.
July 20, 2012.
491 Fed. Appx. 875
Robert C. Jarosh, Richard Grant Schneebeck, Lindsay Ann Woznick, Hirst Applegate, LLP, Bradley T. Cave, Joanna R. Vilos, Esq., Holland & Hart, Cheyenne, WY, for Defendants-Appellees.
Before LUCERO, HOLLOWAY, and MATHESON, Circuit Judges.
ORDER AND JUDGMENT*
SCOTT M. MATHESON, JR., Circuit Judge.
In 2008, Sky Harbor Air Service, Inc., (“Sky Harbor“) and its owner, H. Paul Martin, asserted more than a dozen claims against various defendants in the U.S. District Court for the District of Wyoming. On summary judgment, the district court dismissed all of their claims. Sky Harbor and Mr. Martin also were held liable on a breach-of-contract counterclaim and ordered to pay attorney fees.
In the three appeals consolidated before us, Sky Harbor challenges rulings in favor of defendants Shelly Reams, the Cheyenne Regional Airport Board, and Great Lakes Aviation (collectively the “Defendants“). Exercising jurisdiction pursuant to
I. BACKGROUND
A. Factual History
Sky Harbor and Mr. Martin (collectively “Sky Harbor“) accuse the Defendants of forcing them into financial ruin. Sky Harbor‘s allegations are rooted primarily in two events: (1) the State of Wyoming‘s decision to stop using Sky Harbor‘s services at the Cheyenne Regional Airport, and (2) Sky Harbor‘s lease negotiations with the Cheyenne Regional Airport Board (the “Board“).
1. Sky Harbor‘s Services for the State
Sky Harbor was a fixed-base operator (“FBO“) at the Cheyenne Regional Airport. As an FBO, Sky Harbor provided ground support services, including fueling, tie-down services, and aircraft maintenance for general aviation customers. Between 1988 and 2005, Sky Harbor had an annual lease arrangement with the State of Wyoming Aeronautics Division (“Aeronautics“) to house the State‘s aircraft and to
In March 2005, a Sky Harbor employee damaged an elevator on a state jet. Sky Harbor‘s chief mechanic determined that the damage was within limits for safe flight and that it did not require immediate repair or entry in the aircraft‘s logbook. He confirmed his assessment with the aircraft‘s manufacturer.
The next day, Mr. Martin reported the incident to Sky Harbor‘s insurance provider, and Sky Harbor‘s chief mechanic reported the incident to the Federal Aviation Administration (“FAA“). The mechanic also applied a sealant or adhesive to temporarily fix the elevator damage.
Shelly Reams, the head of Aeronautics, did not learn of the aircraft damage until weeks later—on April 21, 2005—after state pilots noticed the damage. On May 13, 2005, Ms. Reams contacted an FAA official, who agreed to investigate the incident.
On May 19, 2005, the Wyoming Department of Transportation (“WyDOT“) Commission met in an executive, closed-door session. According to minutes from the meeting, Ms. Reams informed the Commission that Sky Harbor had damaged the elevator on a state aircraft, that Sky Harbor did not report the damage to Aeronautics, and that a cover-up of the incident was suspected. The WyDOT director stated he would request a criminal investigation.
The WyDOT Commission then voted to end Aeronautics’ lease with Sky Harbor. On May 24, 2005, Ms. Reams delivered a letter to Mr. Martin informing him that Aeronautics would not renew its annual lease with Sky Harbor to house state aircraft and to provide other services.
During the transition away from Sky Harbor‘s services, Ms. Reams sought assistance from Great Lakes Aviation (“GLA“) to temporarily provide emergency fuel and minor maintenance for state aircraft. Ms. Reams also recommended to the WyDOT Commission that the State build its own hangar facility, and the State eventually contracted with the Board to do so.
On June 2, 2005, an FAA official told Ms. Reams that recordkeeping of aircraft repairs had not been Sky Harbor‘s responsibility, but rather the responsibility of the State‘s pilots and mechanics. The FAA official nevertheless agreed to open an investigation into the damage to the state aircraft. However, Ms. Reams left the issue to law enforcement and did not provide the FAA with any documentation on the incident.
At some point, the Federal Bureau of Investigation and the Department of Homeland Security began an investigation of the aircraft damage.1 The FBI questioned Ms. Reams about the damage to the jet, the sequence of events surrounding the incident, and the quality of Sky Harbor‘s services.
Media then began reporting about an investigation into Sky Harbor‘s role in damaging the state aircraft. Five articles quoted Ms. Reams as saying, in regard to Sky Harbor: “There are possible serious problems that are under investigation. But it would be inappropriate to comment at this time.” Aple. Appx. (11-8004), Vol. IV, at 704.
2. Sky Harbor‘s Leases with the Board
In 2004—before the aircraft damage—Sky Harbor negotiated with the Board to
Sky Harbor nonetheless assumed the Paint Shop lease—in addition to its lease with the Board to provide FBO services at the airport—in December 2004. Sky Harbor‘s rent was $9,500 per month.
Sky Harbor eventually became significantly delinquent in its payments to the Board on the Paint Shop and FBO leases. To allow Sky Harbor to continue its airport services, Sky Harbor and the Board engaged in lease amendment negotiations and reached an agreement on October 23, 2006. Under this agreement, Sky Harbor‘s satisfaction of $114,000 in unpaid Paint Shop rent would culminate with a payment of $104,000 on April 30, 2007.
Sky Harbor did not fulfill its obligation to pay the Paint Shop‘s past-due rent, and the Board terminated the Paint Shop lease in December 2007. As a result, in March 2008, Sky Harbor and the Board submitted a stipulated motion in Laramie County Circuit Court agreeing that Sky Harbor would vacate the Paint Shop. The court entered an order approving the parties’ stipulated motion.
After Sky Harbor left the Paint Shop, the Board sought a new lessee. GLA submitted a lease proposal that would have required the Board to change the use of the building from aircraft painting to general aviation maintenance.2 GLA was not awarded the Paint Shop lease and has never occupied the building.3
B. Procedural History
1. Preliminary injunction
In June 2008, Sky Harbor filed a verified complaint against the Defendants and moved for a preliminary injunction to prevent GLA from taking over the Paint Shop lease. Sky Harbor argued that if the Board allowed GLA to occupy the Paint Shop and to use the facility for a purpose other than aircraft painting, such disparate treatment would violate the Equal Protection Clause of the Fourteenth Amendment.
On November 10, 2008, the district court denied Sky Harbor‘s motion for a preliminary injunction.
2. Verified Amended Complaint
On July 1, 2009, Sky Harbor filed a verified amended complaint alleging the following: The Defendants falsely accused Sky Harbor of criminal activity in connection with damage to the state aircraft. The Defendants also devised a plan to cause Aeronautics to stop using Sky Harbor‘s services, which forced Sky Harbor to become delinquent on its lease payments to the Board and publicly discredited the company. The Defendants aimed to enable the Board to evict Sky Harbor as the airport‘s sole FBO, take over its business, pave the way for the State to obtain funding for its own hangar and fueling facility, and give GLA the opportunity to expand its operations into the Paint Shop.
Sky Harbor further alleged that Ms. Reams had a motive to oust Sky Harbor as the airport‘s FBO and to build a state-owned hangar and fueling facility. In Sky Harbor‘s view, Ms. Reams sought this outcome so that Aeronautics would become a department separate from WyDOT and so that Ms. Reams would receive a promotion and salary increase.
Sky Harbor asserted 14 claims. They included claims for (1) extortion,4 wire and mail fraud, bank fraud, and conspiracy under the Racketeer Influenced and Corrupt Organizations Act (“RICO“),
In response, the Board asserted a counterclaim under Wyoming law for breach of the Paint Shop lease.
3. Summary Judgment Orders
a. Liability Order
On August 21, 2009, the Defendants moved for summary judgment on all of Sky Harbor‘s claims. The district court granted their motions. The court‘s 60-page order also granted the Board summary judgment on its counterclaim for Sky Harbor‘s breach of the Paint Shop lease. But the court declined to grant damages to the Board due to remaining issues of material fact.
b. Damages Order
On July 19, 2010, the Board filed a renewed summary judgment motion on the issue of damages for breach of the Paint Shop lease. Sky Harbor responded that the Paint Shop lease was illegal and unenforceable.
On October 26, 2010, the district court granted the Board‘s motion and awarded $429,809.20 in damages, attorney fees, and costs. The court characterized the posture of the Board‘s motion as “somewhat unusual because Sky Harbor makes no discernible effort to set forth specific facts showing a genuine, triable issue of fact regarding damages.” Aple. Appx. (11-8004), Vol. IV, at 894. Instead, the court noted, Sky Harbor “oppose[d] summary judgment by arguing—for the first time—that no damages exist because the lease at issue is illegal and unenforceable as a matter of law.” Id.
The district court viewed Sky Harbor‘s argument as a tardy attempt to assert an affirmative defense to liability. The court concluded that “Sky Harbor litigated and lost the issue of liability and is precluded from re-litigating that issue on an alternate theory available when the Court granted summary judgment.” Id. at 897. The court entered judgment for the Defendants on December 17, 2010.
4. Rule 59(e) Order
On January 17, 2011, Sky Harbor moved to alter or amend the judgment under
5. Order Granting Attorney Fees to Ms. Reams
In November 2010, Ms. Reams moved for attorney fees under
On July 18, 2011, the district court denied Ms. Reams‘s motion for sanctions but granted her motion for fees under
II. DISCUSSION
Sky Harbor challenges the district court‘s orders (1) granting summary judgment to the Defendants on the issues of liability and damages, (2) striking Sky Harbor‘s Rule 59(e) motion, and (3) awarding attorney fees to Ms. Reams. We discuss Sky Harbor‘s challenges to these rulings below.5 But as a threshold matter, we address the Defendants’ contention that Sky Harbor‘s appellate briefs are deficient.
A. Adequacy of Sky Harbor‘s Appellate Briefs
The Defendants argue that Sky Harbor‘s appellate briefing is inadequate under
We decline to dismiss Sky Harbor‘s appeals entirely, but we agree with the Defendants that some of Sky Harbor‘s arguments on appeal do not satisfy
Accordingly, we conclude that Sky Harbor has deficiently briefed the following arguments under
In addition, Sky Harbor has not challenged the district court‘s dismissal of its (1) RICO conspiracy claim, (2) § 1983 claims for deprivation of free speech and conspiracy, and (3) state-law contract claims. Because Sky Harbor has not addressed these claims on appeal, any such challenges are waived and we do not address them.
We now turn to the arguments that Sky Harbor has, at least arguably, adequately presented for our review.
B. The District Court‘s Summary Judgment Orders
Sky Harbor challenges the district court‘s two summary judgment orders. In
On appeal, Sky Harbor primarily argues that the Paint Shop lease is an illegal contract and the district court thereby erred in enforcing it. In addition, Sky Harbor argues that the district court erred in dismissing some of Sky Harbor‘s § 1983 and RICO claims against the Defendants.
“This court reviews de novo a district court‘s entry of summary judgment, viewing the facts in the light most favorable to the nonmoving party.” Rezaq v. Nalley, 677 F.3d 1001, 1010 (10th Cir. 2012). Summary judgment is appropriate “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
Under this standard, we affirm the district court‘s orders granting summary judgment to the Defendants. We begin by addressing Sky Harbor‘s assertion that the Paint Shop lease is an illegal contract and then address the district court‘s dismissal of Sky Harbor‘s § 1983 and RICO claims.
1. Illegality of the Paint Shop Lease
Sky Harbor argues that the Paint Shop lease is an illegal, unenforceable contract, and thus the district court erred in holding Sky Harbor liable for breaching it.11 Sky Harbor asks us to address the merits of its illegality theory and to declare the Paint Shop lease unenforceable.
The district court rejected Sky Harbor‘s theory on procedural grounds. The court explained that illegality of a contract is an affirmative defense that Sky Harbor had failed to plead in its answer to the Board‘s counterclaim. The court recognized that Sky Harbor could have formally amended its answer or constructively amended it by raising the affirmative defense in a timely fashion. But Sky Harbor waited to raise the illegality defense until after the district court ruled that Sky Harbor was liable for breaching the Paint Shop lease. The court therefore declined to constructively amend Sky Harbor‘s answer to the Board‘s counterclaim.
We review this procedural ruling for abuse of discretion. See Ahmad v. Furlong, 435 F.3d 1196, 1202 (10th Cir. 2006) (reviewing for abuse of discretion a court‘s ruling on whether to allow a constructive amendment at the summary judgment stage). “A court abuses its discretion if it refuses leave [to amend a pleading] without expressing any justification, [but] if the denial rests on articulated reasons . . . the district court[‘s] decision shall stand.” TV Commc‘ns Network, Inc. v. Turner Network Television, Inc., 964 F.2d 1022, 1028 (10th Cir. 1992).
The illegality of a contract is a defense that “a party must affirmatively state” in a pleading. See
Courts should consider several factors in determining whether to allow a party‘s constructive amendment. A primary consideration is whether the opposing party will suffer prejudice. Id. In addition, denial of a proposed amendment is appropriate if the amendment is an attempt to make a pleading a “moving target” or “to salvage a lost case by untimely suggestion of new theories.” See Minter v. Prime Equip. Co., 451 F.3d 1196, 1206 (10th Cir. 2006) (quotations omitted). “[A] motion to amend may also be denied on grounds such as undue delay, bad faith or dilatory motive.” Ahmad, 435 F.3d at 1202 (quotations omitted).
The district court‘s rejection of Sky Harbor‘s tardy affirmative defense was not an abuse of discretion. Sky Harbor was given the chance to litigate whether it was liable for breach of the Paint Shop lease, and it lost on that issue. In rejecting Sky Harbor‘s illegality defense, the district court was concerned with “the principles of notice and fairness embodied in the pleading rules” and with preventing the “exploit[ation of] the liberal amendment policy of Rule 15(a)(2) to the detriment of final judgments and the expeditious conclusion of litigation.” Aple. Appx. (11-8004), Vol. IV, at 896. Its reasoning demonstrates a concern with the untimely suggestion of new theories and undue delay. Had the court allowed Sky Harbor to assert its late affirmative defense, the Defendants would have been forced “to re-litigate the dispute on new bases . . . and to incur new rounds of additional and costly discovery, . . . depriving [them] of the meaningful value of obtaining summary judgment.” Sanders v. Venture Stores, Inc., 56 F.3d 771, 774 (7th Cir. 1995). This would have been prejudicial to the Defendants. See id. The district court therefore articulated a valid basis for rejecting Sky Harbor‘s tardy attempt to constructively amend its answer.
Sky Harbor argues that the district court abused its discretion in various respects. First, Sky Harbor argues that the district court‘s analysis is at odds with our decision in Ball Corp. v. Xidex Corp., 967 F.2d 1440 (10th Cir. 1992). In Ball Corp., we held that a defendant did not waive an affirmative defense that was raised for the first time in the defendant‘s motion for partial summary judgment. Id. at 1443-44. We explained that the motion came three months before trial, which was sufficient notice to the plaintiff to allow for proper litigation of the issue. Id. at 1444.
Ball Corp. does not control here. Sky Harbor did not raise its affirmative defense until after the court‘s ruling on the issue of liability. Unlike the defendant in Ball Corp., Sky Harbor had “litigated and lost the issue of liability.” Aple. Appx. (11-8004), Vol. IV, at 897.
Second, Sky Harbor contends that a contract‘s illegality may be raised “at any stage of the proceedings.” Aplt. Br. (11-8004) at 40. Although Sky Harbor‘s supporting authorities generally explain that courts will not enforce illegal contracts, they do not discuss when the assertion of such an affirmative defense may be made.12 As previously discussed, a party
Third, Sky Harbor argues that it did not raise the illegality defense earlier because the Board withheld evidence supporting the defense. Sky Harbor obtained the documents supporting its defense from a FOIA request. But Sky Harbor did not make its FOIA request until July 2, 2010—more than a month after the court‘s order holding Sky Harbor liable for breaching the Paint Shop lease. See Aplt. Appx. (11-8004), Vol. 3, Pt. 1, at 137. We will not reverse the district court‘s ruling based on publicly available documents that Sky Harbor did not pursue until after it lost on the liability issue.
Finally, Sky Harbor suggests that, after it raised the issue of illegality of the Paint Shop lease, the district court erred by not reconsidering its liability ruling under
Sky Harbor‘s argument on appeal that the court should have reconsidered the liability ruling under Rule 54(b) is therefore contrary to its motion under that rule seeking the entry of final judgment. The district court did not err by failing to sua sponte convert the motion into one for reconsideration when Sky Harbor sought the contrary outcome of final judgment and appeal.
ness. The court‘s procedural ruling was not an abuse of discretion.
The district court did not abuse its discretion when it rejected Sky Harbor‘s attempt to constructively amend its pleadings with a tardy affirmative defense. The court had decided the issue of liability, and its concerns about prejudice to the Defendants and undue delay were proper bases to reject Sky Harbor‘s untimely theory of illegality.
2. Government Defamation Under § 1983
Sky Harbor argues that the district court erred in dismissing its § 1983 claim for government defamation. As discussed below, we conclude that the court did not err.
a. Substantive Background
The Supreme Court recognized in Paul v. Davis, 424 U.S. 693, 711-12 (1976), that government defamation resulting in an alteration in legal status may implicate a liberty interest under the Due Process Clause of the Fourteenth Amendment. Known as the “stigma plus” standard, Brown v. Montoya, 662 F.3d 1152, 1167 (10th Cir. 2011), it requires a change in an individual‘s legal status plus the stigma suffered from the government defamation, see Paul, 424 U.S. at 711-12.
Thus, a plaintiff asserting a government defamation claim must satisfy two elements:
(1) the government made a statement about him or her that is sufficiently derogatory to injure his or her reputation, that is capable of being proved false, and that he or she asserts is false, and (2) the plaintiff experienced some governmentally imposed burden that signifi
Gwinn v. Awmiller, 354 F.3d 1211, 1216 (10th Cir. 2004) (quotations omitted). Under the first element, the defamatory statement must be published. See Jensen v. Redev. Agency of Sandy City, 998 F.2d 1550, 1558 (10th Cir. 1993).
b. Procedural Background
The district court rejected Sky Harbor‘s § 1983 government defamation claim for failure to meet the first element of the stigma plus standard. The court concluded that Sky Harbor had failed to demonstrate how Ms. Reams, the Board, or GLA made derogatory statements that were capable of injuring Sky Harbor‘s reputation and of being proved false. The court focused primarily on Ms. Reams‘s comments reflected in the WyDOT Commission meeting minutes and on her statements to the media.
The WyDOT Commission minutes indicate that Ms. Reams stated that Sky Harbor “never informed [Aeronautics] of the [state aircraft] damage . . . and a cover up is suspected.” Aplt. Appx. (11-8004), Vol. 3, Pt. 1, at 160. The district court concluded that Ms. Reams‘s statements, as reflected in the minutes, did not “rise to the level of making criminal accusations,” Aple. Appx. (11-8004), Vol. IV, at 704, and thus failed the first element of the stigma plus standard.
Five media articles also quoted Ms. Reams as stating that “[t]here are possible serious problems that are under investigation [regarding Sky Harbor]. But it would be inappropriate to comment at this time.” Id. The district court concluded that Ms. Reams‘s “statement to the press that an investigation was under way was true” and thus incapable of being proved false. Id. at 705.
Finally, the court explained that Sky Harbor provided no evidence that the Board or GLA made or repeated any defamatory statements.
c. Sky Harbor‘s Government Defamation Claim
On appeal, Sky Harbor asserts that Ms. Reams “proffered bizarre fabrications of criminal wrongdoing and admissions in secret state meetings and in executive session to transfer Sky Harbor‘s property rights to [the Board] and GLA.” Aplt. Br. (11-8004) at 30-31. Sky Harbor also complained about the statements Ms. Reams made to the media.13 We therefore separate Ms. Reams‘s alleged defamatory statements into those (1) reflected in the WyDOT Commission meeting minutes, and (2) reported by the media.
i. WyDOT Commission Meeting Minutes
The district court concluded that Ms. Reams‘s statements to the WyDOT Commission did not rise to the level of criminal accusations and thus did not damage Sky Harbor‘s reputation. We affirm the district court‘s ruling that Ms. Reams‘s statements to the WyDOT Commission cannot support a government defamation claim, but we do so on a different basis. See Richison v. Ernest Grp., Inc., 634 F.3d 1123, 1130 (10th Cir. 2011).
Ms. Reams‘s statements to the WyDOT Commission cannot support a government defamation claim because they were not published. We have explained that “intra-government dissemination [of a defamatory statement], by itself, falls short of the Supreme Court‘s notion of publication.” Asbill v. Hous. Auth. of Choctaw Nation of Okla., 726 F.2d 1499, 1503 (10th Cir. 1984);
Because Sky Harbor has not offered evidence of the publication of Ms. Reams‘s statements outside of the WyDOT Commission‘s closed doors, its § 1983 government defamation claim cannot succeed.
ii. Media Reports
Ms. Reams‘s statements to the media also cannot support a § 1983 government defamation claim.
Articles quoted Ms. Reams as saying that “[t]here are possible serious problems that are under investigation [regarding Sky Harbor].” Aple. Appx. (11-8004), Vol. IV, at 704. Although Sky Harbor takes issue with this statement, it admits that the FBI engaged in a yearlong investigation of the damage to the state aircraft. See Aplt. Br. (11-8004) at 31. We have explained that “the mere statement that there is an investigation does not violate a liberty interest when there actually is an ongoing investigation.” See Primas v. City of Okla. City, 958 F.2d 1506, 1510 (10th Cir. 1992).
We agree with the district court that Ms. Reams‘s statements to the media were true and cannot support a government defamation claim.
Ms. Reams‘s statements to the WyDOT Commission were not published, and her statements regarding an ongoing investigation were true. We therefore affirm the district court‘s dismissal of Sky Harbor‘s § 1983 claim for government defamation.
3. Sky Harbor‘s RICO Claims
Sky Harbor appeals the district court‘s dismissal of its claims under the RICO statute. For the reasons discussed below, the district court did not err in granting summary judgment on these claims.
a. Substantive Background
“RICO provides a cause of action for those injured in business or property by reason of prohibited racketeering activities.” Bixler v. Foster, 596 F.3d 751, 756 (10th Cir. 2010). Under
The fourth element—racketeering activity—“is defined . . . as any ‘act which is indictable’ under federal law,” Tal v. Hogan, 453 F.3d 1244, 1261 (10th Cir. 2006) (quoting
b. Sky Harbor‘s RICO Claims
On appeal, Sky Harbor argues that the district court erred in dismissing its RICO claims for the predicate acts of (1) extortion under federal law and (2) blackmail under Wyoming law.14 We affirm the district court‘s rejection of each of these predicate acts.
i. Extortion
“The term ‘extortion’ means the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right.”
The district court concluded that Sky Harbor had failed to establish extortion because Mr. Martin conceded that he did not consent to the Defendants’ alleged taking of Sky Harbor‘s “business interests and rights to compete.” Aple. Appx. (11-8004), Vol. IV, at 677. On appeal, Sky Harbor acknowledges that consent is a required element of extortion but argues that “[c]onsent of any sort, express, implied, or totally passive is sufficient.” Aplt. Br. (11-8004) at 59. It argues that “consent exists where [a] defendant causes some businesses to refuse to deal with the victim where a property right to contract freely exists in the victim.” Id. In other words, Sky Harbor argues that consent is present in this case because the Defendants allegedly caused Aeronautics not to renew its lease with Sky Harbor for aircraft housing and other services.
We reject Sky Harbor‘s position because it ignores the element of extortion that requires the victim to have some choice in parting with property and that the victim consent to do so as a result of wrongful inducement. Sky Harbor‘s extortion claim is based on Aeronautics’ decision to stop
Although Sky Harbor alleges that Ms. Reams falsely accused it of covering up the aircraft damage, resulting in WyDOT‘s and Aeronautics’ decision to stop using Sky Harbor‘s services, Sky Harbor never contends that it consented to give up its lease with Aeronautics. Mr. Martin testified at his deposition that he believed Ms. Reams extorted Sky Harbor‘s “legitimate business interests.” Aple. Appx. (11-8004), Vol. I, at 98. When asked whether Ms. Reams had Mr. Martin‘s permission to take these business interests, he responded, “No, she did not.” Id.
It is undisputed that Sky Harbor did not choose or consent to give up its business relationship with Aeronautics. The district court therefore correctly rejected Sky Harbor‘s RICO claim based on the predicate act of extortion.
ii. Blackmail
Under the RICO statute, a “racketeering activity” includes an act of extortion that “is chargeable under State law and punishable by imprisonment for more than one year.”
[a] person commits blackmail if, with the intent to obtain property of another or to compel action or inaction by any person against his will, the person . . . [a]ccuses or threatens to accuse a person of a crime . . . which would tend to degrade or disgrace the person or subject him to the ridicule or contempt of society.
Id.
But blackmail under Wyoming law “cannot qualify as a predicate offense for a RICO suit unless it is capable of being generically classified as extortionate.” Wilkie v. Robbins, 551 U.S. 537, 567 (2007) (quotations omitted). “[G]eneric extortion is defined as obtaining something of value from another with his consent induced by the wrongful use of force, fear, or threats.” Scheidler v. Nat‘l Org. for Women, Inc., 537 U.S. 393, 409 (2003) (emphasis added) (quotations omitted); see also United States v. Nardello, 393 U.S. 286, 290 (1969).
As discussed above, Sky Harbor did not consent to give up its business interests. The WyDOT Commission and Aeronautics made that decision without Sky Harbor‘s input. The Defendants’ conduct therefore does not fall within the generic definition of extortion and cannot serve as a predicate act to support a RICO claim.
Sky Harbor has not established a predicate act under RICO, let alone the two predicate acts required to establish a “pattern” of racketeering activity. We therefore affirm the district court‘s grant of summary judgment to the Defendants on Sky Harbor‘s RICO claims.
C. The District Court‘s Rule 59(e) Order
We now turn to Sky Harbor‘s challenges to the district court‘s order striking its motion under
As discussed below, we hold that the district court did not abuse its discretion because the Federal Rules of Civil Procedure allowed the court to strike Sky Harbor‘s motion.
1. Procedural Background
The district court entered judgment against Sky Harbor on December 17, 2010. Thirty-one days later, on January 17, 2011, Sky Harbor moved under
On February 2, 2011, the Defendants moved to strike the motion because Sky Harbor had filed it more than 28 days after the judgment. They also argued that Sky Harbor‘s motion should be stricken because Mr. Martin, a non-attorney, signed it.
Sky Harbor responded that the court should reject the Defendants’ motion to strike on the merits or, in the alternative, convert Sky Harbor‘s Rule 59(e) motion into a motion under
The district court granted the Defendants’ motion to strike. It ruled that Sky Harbor‘s Rule 59(e) motion was untimely. In addition, the court declined to convert the motion into a
2. Sky Harbor‘s Rule 59(e) Argument
On appeal, Sky Harbor argues that the district court erred when it (1) concluded that the Rule 59(e) motion was untimely, and (2) declined to convert the motion into a Rule 60(b) motion. We conclude that neither ruling was an abuse of discretion.
a. Timeliness
Under
Sky Harbor does not dispute that it filed its Rule 59(e) motion beyond the 28-day period. It argues, however, that
First, the 14-day time limit for responsive motions is not mandatory. Although Sky Harbor has not identified the applicable timing rule, it appears to be Rule 7.1 of the local rules for the U.S. District Court for the District of Wyoming. That rule states that failure to serve a response to a non-dispositive motion within 14 days of its service “may be deemed by the [c]ourt in its discretion as a confession of the motion.” Wyo. L.R. 7.1(b)(1)(B) (emphases added). Thus, the district court had discretion to consider the motion to strike, and its decision to grant the motion did not exceed the bounds of permissible choice. See Phelps, 122 F.3d at 1324.
Second, even if Sky Harbor is correct that Rule 59(e)‘s 28-day time limit is not jurisdictional,17 it does not follow that the Defendants forfeited their timeliness objection. Ordinarily, a party does not forfeit an objection to the timeliness of a motion unless the court has ruled on the merits of the motion. See Eberhart v. United States, 546 U.S. 12, 19 (2005) (“[W]here the Government failed to raise a defense of untimeliness until after the District Court had reached the merits, it forfeited that defense.“); Wilburn v. Robinson, 480 F.3d 1140, 1147 (D.C. Cir. 2007) (“A party indisputably forfeits a timeliness objection based on a claim-processing rule if he raises the issue after the court has issued a merits decision.“).
The Defendants filed their motion to strike 16 days after Sky Harbor filed its Rule 59(e) motion. The district court had not addressed the Rule 59(e) motion‘s merits. The court therefore did not err in considering and granting the Defendants’ motion to strike based on Rule 59(e)‘s 28-day filing period. See Wilburn, 480 F.3d at 1146 (“[A] claim-processing rule is nonetheless mandatory and district courts must observe the clear limits of time prescriptions when they are properly invoked.” (quotations omitted)).
b. Rule 60(b) Conversion
Sky Harbor further argues that the district court should have converted the Rule 59(e) motion into a
“Whether a motion is construed as a Rule 59(e) or Rule 60(b) motion depends upon the time in which the motion is filed.” Allender v. Raytheon Aircraft Co., 439 F.3d 1236, 1242 (10th Cir. 2006). If a party files a Rule 59(e) motion beyond the rule‘s time limit, a court may construe the motion as falling under
As with all written motions, however, a Rule 60(b) motion must satisfy
Although
In denying Sky Harbor‘s request to convert its Rule 59(e) motion to a
On appeal, Sky Harbor argues that its attorney signed the motion‘s certificate of service and that the motion was submitted electronically using her online account. In its view,
Sky Harbor‘s arguments do not directly confront
Sky Harbor also had sufficient notice of the signature deficiency. On February 2, 2011, Sky Harbor learned from the Defendants’ motion to strike that the Rule 59(e) motion did not comply with
We agree with the district court that Sky Harbor had ample opportunity to remedy the
D. The District Court‘s Attorney Fees Order
Finally, we turn to Sky Harbor‘s contention that the district court erred when it awarded Ms. Reams attorney fees under
As discussed below, the district court did not abuse its discretion in awarding fees to Ms. Reams for Sky Harbor‘s frivolous and vexatious § 1983 claims. However, the district court also awarded fees to Ms. Reams under
1. Substantive and Procedural Background
Under
After prevailing on her summary judgment motion, Ms. Reams moved under
The district court granted Ms. Reams‘s motion for attorney fees under
Having found that an award of fees was appropriate, the court assessed whether Ms. Reams‘s calculation of attorney fees was reasonable. It noted that, although Sky Harbor contended that Ms. Reams was not entitled to attorney fees, Sky Harbor did not challenge her fee calculation of $109,017. The court made its own calculation and concluded that Ms. Reams was entitled to $48,476.50 in reasonable attorney fees, which reflected “billing entries related to the claims brought pursuant to
2. Sky Harbor‘s Attorney Fees Challenges
Sky Harbor raises two challenges to the district court‘s award of attorney fees to Ms. Reams. First, it argues that its § 1983 claims against Ms. Reams were not frivolous or vexatious, and thus an award under
a. Fees for Sky Harbor‘s § 1983 Claims
Sky Harbor does not dispute that Ms. Reams was the prevailing party on its § 1983 claims. It also does not challenge the district court‘s calculation of the attorney fees attributable to Ms. Reams‘s defense of the § 1983 claims. Sky Harbor‘s only assertion of error is that its § 1983 claims were not frivolous or vexatious, and thus Ms. Reams was not entitled to fees under
A district court‘s determination that a party has pursued frivolous claims with improper motive is entitled to substantial deference. See Barrett v. Tallon, 30 F.3d 1296, 1302 (10th Cir. 1994). District courts have a “superior understanding of the litigation,” Hensley, 461 U.S. at 437, and their role in awarding fees is a “sphere of judicial decision making” that typically is unsuited for “appellate micromanagement,” Fox, 131 S.Ct. at 2216. For example, where a court awarded fees as a form of Rule 11 sanctions for a plaintiff‘s vexatious litigation, we vacated the award only because it was “based on a clearly erroneous assessment of the evidence,” Barrett, 30 F.3d at 1302 (quotations omitted), and because there was “nothing in the record show[ing] an improper motive,” id.
After reviewing the record, we conclude that the district court had an adequate basis to determine that Sky Harbor‘s § 1983 claims against Ms. Reams were frivolous. Sky Harbor‘s § 1983 equal protection claim was frivolous due to the lack of any evidence that (1) Sky Harbor and GLA were similarly situated in all material respects, see Kan. Penn Gaming, LLC v. Collins, 656 F.3d 1210, 1217 (10th Cir. 2011), (2) the Board‘s decision to not renew its leases with Sky Harbor lacked a rational basis, see id. at 1216, and (3) Ms. Reams acted with malice, see Jennings v. City of Stillwater, 383 F.3d 1199, 1211 (10th Cir. 2004).
We also agree with the district court that Mr. Martin‘s First Amendment claim—the notion that “[Ms.] Reams violated his right to free speech by instructing [people] not to speak with him“—was frivolous and lacked “even [a] scintilla of evidence” to support it. Aple. Appx. (11-8004), Vol. IV, at 932 (quotations omitted). The court found this claim to be “emblematic of [Mr.] Martin‘s indiscriminate litigation strategy—if there was an argument to be made, he made it, regardless of merit.” Id. at 933.
Sky Harbor‘s § 1983 claim for government defamation was equally frivolous. Sky Harbor did not establish that Ms. Reams‘s statements to the WyDOT Commission were published, and Ms. Reams‘s statements to the press that Sky Harbor was under investigation were true.
The accusations against Ms. Reams also support the district court‘s finding that Sky Harbor asserted its § 1983 claims in bad faith. As the district court noted, Sky Harbor made allegations against Ms. Reams during the litigation that were irrelevant to the issues raised. Some of
The district court was on the front lines of this litigation and was in a better position than we are to determine that Sky Harbor‘s § 1983 claims were frivolous and vexatious. See Hensley, 461 U.S. at 437; Barrett, 30 F.3d at 1302. Its decision to award Ms. Reams attorney fees under
b. Fees for Sky Harbor‘s RICO Claims
Sky Harbor also argues that Ms. Reams should be responsible for her own costs and attorney fees in defending Sky Harbor‘s RICO claims. We construe this argument as asserting that
When Ms. Reams moved for attorney fees, she requested fees associated with the defense of Sky Harbor‘s RICO claims. Ms. Reams noted, however, that her counsel had “made a reasonable effort to separate out . . . fees that are associated solely with defending Plaintiffs’ RICO allegations (those which are in no way intertwined with the defense of [Sky Harbor‘s] § 1983 claims and the overall defense of this case)” if the court decided to not award her fees for the defense of the RICO claims. Aplt. Appx. (11-8004), Vol. 4, Tab 3, at 6 n. 1. According to Ms. Reams, she expended $6,010.50 in defending the RICO claims.
The district court ruled that Sky Harbor‘s RICO claims were frivolous. It awarded Ms. Reams a total of $48,476.50, which “reflect[ed] billing entries related to the claims brought pursuant to
The district court erred in awarding Ms. Reams attorney fees under
The district court did not explain its reasoning for awarding fees under
Accordingly, we vacate the district court‘s award of attorney fees for the defense of the RICO claims and remand solely on the limited issue of the appropriate fee award to Ms. Reams.20
III. CONCLUSION
We affirm the district court‘s grant of the Defendants’ motions for summary judgment and its grant of the Defendants’ motion to strike Sky Harbor‘s Rule 59(e) motion.21 We also conclude that the district court did not abuse its discretion in awarding Ms. Reams attorney fees to defend against Sky Harbor‘s § 1983 claims. The court erred, however, in awarding Ms. Reams fees under