Schupper v. Fourth Judicial DA ( 2000 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JUL 17 2000
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
SANFORD B. SCHUPPER,
Plaintiff-Appellant,
v. No. 99-1402
(D.C. No. 98-B-2029)
FOURTH JUDICIAL DISTRICT (D. Colo.)
ATTORNEYS OFFICE FOR THE
STATE OF COLORADO,
Defendant-Appellee.
ORDER AND JUDGMENT *
Before TACHA , PORFILIO , and EBEL , Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 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This order and judgment is not binding precedent, except under the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. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
In his district court complaint, plaintiff Sanford B. Schupper sought
a preliminary restraining order and temporary and permanent injunctions
enjoining defendant Fourth Judicial District Attorneys Office for the State of
Colorado from obtaining further disclosures of Mr. Schupper’s financial records
from various banking and financial institutions. Mr. Schupper contended that
defendant had obtained his banking and financial records in violation of the Right
to Financial Privacy Act (RFPA), 12 U.S.C. §§ 3401-3422. Mr. Schupper appeals
the district court’s dismissal of his complaint for failure to state a claim upon
which relief may be granted pursuant to Fed. R. Civ. P. 12(b)(6). On appeal,
Mr. Schupper claims that the district court erred (1) in finding that the RFPA does
not apply to state and local authorities, and (2) in finding that the RFPA did not
apply in light of alleged FBI involvement in the case. We have jurisdiction
pursuant to 28 U.S.C. § 1291, and we affirm.
The legal sufficiency of a complaint is a question of law; hence a
Rule 12(b)(6) dismissal is reviewed de novo . See Sutton v. Utah State Sch. for the
Deaf & Blind , 173 F.3d 1226, 1236 (10th Cir. 1999). “The court’s function on
a Rule 12(b)(6) motion is not to weigh potential evidence that the parties might
present at trial, but to assess whether the plaintiff’s complaint alone is legally
sufficient to state a claim for which relief may be granted.” Id. (quotation
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omitted). In reviewing the district court’s grant of a Rule 12(b)(6) motion to
dismiss,
all well-pleaded factual allegations in the . . . complaint are accepted
as true and viewed in the light most favorable to the nonmoving
party. A 12(b)(6) motion should not be granted unless it appears
beyond doubt that the plaintiff can prove no set of facts in support of
his claim which would entitle him to relief.
Id. (citations and quotations omitted).
Mr. Schupper asks this court to find that the district court’s dismissal of his
action on the basis of an insufficient complaint was in error. Mr. Schupper’s
appendix does not, however, contain a copy of the complaint filed in the district
court. “‘[I]t is counsel’s responsibility to see that the record on appeal is
sufficient for consideration and determination of the issues on appeal.’” Roberts
v. Roadway Express, Inc. , 149 F.3d 1098, 1105 n.3 (10th Cir. 1998) ( quoting
10th Cir. R. 10.3). This responsibility to the record on appeal is equally as
applicable to an appellant’s appendix. See Morrison Knudsen Corp. v. Fireman’s
Fund Ins. Co. , 175 F.3d 1221, 1237 n.15 (10th Cir. 1999).
This court may decline to review an issue where counsel does not fulfill
the responsibility to provide a document necessary for consideration and
determination of the issue. See Gowan v. United States Dep’t of Air Force ,
148 F.3d 1182, 1192 (10th Cir.), cert. denied , 525 U.S. 1042 (1998); see also
Rios v. Bigler , 67 F.3d 1543, 1553 (10th Cir. 1995) (“It is not this court’s burden
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to hunt down the pertinent materials. Rather, it is Plaintiff’s responsibility as the
appellant to provide us with a proper record on appeal.”). Here, Mr. Schupper
challenges the district court’s determination that his complaint was insufficient
to state a cognizable claim. We cannot review the district court’s decision
without review of Mr. Schupper’s complaint. See, e.g., United States v. Vasquez ,
985 F.2d 491, 494 (10th Cir. 1993) (“When the record on appeal fails to include
copies of the documents necessary to decide an issue on appeal, the Court of
Appeals is unable to rule on that issue.”). Therefore, by failing to include the
complaint as part of his appendix, Mr. Schupper waives any claims concerning the
district court’s finding of insufficiency. 1
The judgment of the United States District Court for the District of
Colorado is AFFIRMED.
Entered for the Court
Deanell Reece Tacha
Circuit Judge
1
Although we premise our affirmance of the district court’s dismissal of
plaintiff’s complaint on his failure to provide an adequate record for review, we
have, to the extent possible, considered plaintiff’s arguments, and we find them to
be without merit.
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