Biers v. Dentons US: Tenth Circuit Clarifies Appealability of Interlocutory Orders and Reinforces Limits on Stand-Alone Cross-Claims

Introduction

In Biers v. Dentons US LLP, the United States Court of Appeals for the Tenth Circuit confronted an unusually sprawling pro se lawsuit stemming from tribal-government infighting and related business disputes. Plaintiff Samuel L. Biers, former Chief Tribal Judge of the Te-Moak Tribe of Western Shoshone Indians, filed a 320-page complaint naming more than forty defendants, including law firms, state officials, tribal entities, private individuals, and the United States. Among those defendants was Steven J. McDade, who, acting pro se, attempted to file an independent “3rd Party Crossclaim” and sought a preliminary injunction. After the district court dismissed Biers’s complaint and, later, the entire case for failure to prosecute, McDade alone pursued an appeal.

The key issues on appeal were:

• whether the earlier interlocutory order dismissing McDade’s crossclaim was immediately appealable after entry of final judgment;
• whether the district court properly dismissed a stand-alone crossclaim filed outside an answer under Federal Rule of Civil Procedure 13(g);
• whether 18 U.S.C. §§ 241 & 242 confer a private civil right of action; and
• whether the district court erred in denying McDade’s motions for injunctive relief and for recusal without holding an evidentiary hearing.

The Tenth Circuit affirmed in full, issuing an unpublished order and judgment that nevertheless provides instructive guidance on appellate finality, pleading requirements for crossclaims, and the bounds of pro se advocacy.

Summary of the Judgment

1. Appellate Jurisdiction. The court held it had jurisdiction under 28 U.S.C. § 1291 because the final judgment dismissing the entire action with prejudice “merged” all prior interlocutory orders, including the earlier dismissal of McDade’s crossclaim.

2. Dismissal of the Crossclaim. Affirming the district court, the Tenth Circuit agreed that: (a) a crossclaim must appear within a pleading enumerated in Rule 7(a)—typically an answer—and cannot be filed as a stand-alone document; (b) McDade’s allegations bore no logical relationship to Biers’s operative claims, so Rule 13(g)’s “same transaction or occurrence” requirement was unsatisfied; (c) criminal civil-rights statutes §§ 241–242 do not create a private right of action; and (d) the motions to dismiss were independently subject to summary grant because McDade failed to oppose them timely.

3. Requests for Injunctive Relief & Recusal. Denial of McDade’s preliminary-injunction motions and recusal motions without a hearing was not an abuse of discretion. The alleged judicial bias did not meet the objective “reasonable person” standard required for disqualification.

4. Pro Se Standards. The court reiterated that although pro se filings are construed liberally, appellants must still cite authority and record evidence; McDade’s perfunctory assertions did not preserve any additional arguments for review.

Analysis

1. Precedents Cited and Their Influence

• Langer v. Monarch Life Ins. Co., 966 F.2d 786 (3d Cir. 1992) – Cited to confirm that Rule 13(g) crossclaims must be stated in a pleading listed in Rule 7(a). Provided the textual foundation for the magistrate judge’s first ground for dismissal.
• Andrews v. Heaton, 483 F.3d 1070 (10th Cir. 2007) & Cok v. Cosentino, 876 F.2d 1 (1st Cir. 1989) – Established that 18 U.S.C. §§ 241–242 contain no private right of action. The Tenth Circuit relied on these cases to reject McDade’s substantive theory outright.
• Blessing v. Firestone, 520 U.S. 329 (1997) – Reaffirmed that § 1983 requires violation of a federal right, not simply federal law, foreclosing any attempt to re-label the criminal statutes as civil-rights claims.
• Frey v. Town of Jackson, 41 F.4th 1223 (10th Cir. 2022) – Applied the “merger doctrine,” holding that interlocutory orders merge into final judgment, thus supplying appellate jurisdiction here.
• Moya v. Schollenbarger, 465 F.3d 444 (10th Cir. 2006) & AdvantEdge, 552 F.3d 1233 (10th Cir. 2009) – Clarified that orders preceding a dismissal for failure to prosecute are reviewable because they “effectively extinguish” the plaintiff’s cause of action.
• Steele v. Federal Bureau of Prisons, 355 F.3d 1204 (10th Cir. 2003) – Supported the district court’s discretion to rule on motions without oral hearing.
• United States v. Woodmore, 135 F.4th 861 (10th Cir. 2025) – Set the objective standard for recusal (“reasonable person” test), used to dismiss McDade’s bias allegations.
• Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836 (10th Cir. 2005) & GeoMetWatch Corp. v. Behunin, 38 F.4th 1183 (10th Cir. 2022) – Quoted to emphasize the limits of judicial leniency toward pro se litigants.

2. Legal Reasoning

a. Procedural Impropriety of a Stand-Alone Crossclaim. Rule 13(g) crossclaims must be contained within a pleading enumerated in Rule 7(a). McDade’s “3rd Party Crossclaim” was filed as a separate document, not as part of an answer, violating the rule’s plain text. The court echoed Langer and the majority of circuits that deem such filings “nullities.”

b. Subject-Matter Misalignment. Even if the form defect were excused, Rule 13(g) limits crossclaims to matters arising out of the same transaction or occurrence as the original action, or to claims that the co-party is liable “for all or part” of the claim against the cross-claimant. McDade’s grievances—involving tribal elections, cannabis enterprises, and unrelated assault allegations—shared no factual nucleus with Biers’s removal as Chief Tribal Judge.

c. Absence of a Cause of Action under §§ 241–242. The court reaffirmed that criminal civil-rights statutes do not supply civil remedies. Without a cognizable federal right, McDade had no viable § 1983 claim either, relying on Blessing.

d. Procedural Default through Non-Opposition. D.Utah local rules permit summary grant of motions if the non-movant fails to respond. McDade’s silence provided an independent basis for dismissal.

e. Appellate Finality. Although the crossclaim was dismissed without prejudice, the subsequent dismissal of the underlying case with prejudice foreclosed any opportunity for amendment, satisfying § 1291’s finality requirement. The “merger doctrine,” as articulated in Frey, made earlier interlocutory orders reviewable.

f. Discretionary Denial of Hearings & Recusal. Federal Rule 78(b) authorizes submission “on the briefs.” In the absence of disputed material facts or a viable legal theory, the court’s decision to bypass a hearing was well within its discretion. Allegations of bias lacked the “reasonable person” basis required for mandatory recusal.

3. Impact of the Judgment

• Clarifies Appellate Pathway. Litigants now have persuasive Tenth-Circuit guidance that an interlocutory dismissal “without prejudice” becomes final—and therefore appealable—once the entire action is later dismissed with prejudice.
• Reinforces Pleading Discipline. The case underscores that Rule 13(g) crossclaims are not free-standing vehicles for unrelated grievances, a point particularly relevant to courts managing multi-party or pro se litigation where improper “kitchen-sink” filings are common.
• Limits Private Reliance on Criminal Civil-Rights Statutes. By restating the non-existence of a private right under §§ 241–242, the decision curtails a recurring pro se error and helps channel civil-rights pleadings toward the proper § 1983 framework.
• Affirms Judicial Economy Tools. The court’s acceptance of paper rulings without hearings validates district-court caseload-management strategies, especially when frivolous or procedurally defective claims are at issue.

4. Complex Concepts Simplified

Crossclaim: A lawsuit filed by one defendant against a co-defendant (or co-party) within the same case. It must appear in an answer and relate to the same set of facts as the original complaint or assert derivative liability.

Rule 13(g) “Transaction or Occurrence”: A pragmatic, flexible test asking whether the claims share a common core of operative facts—i.e., whether separate trials would involve much of the same evidence.

Private Right of Action: The ability of a private individual to sue under a statute. Criminal statutes generally require the government to prosecute; unless Congress expressly creates a civil remedy, private suits are barred.

Merger Doctrine (Finality): Once a final judgment is entered, all interlocutory orders “merge” into it, allowing the appellate court to review earlier non-final rulings in a single appeal.

Recusal Standard: Under 28 U.S.C. § 455, a judge must disqualify if a reasonable, informed observer would question impartiality—mere dissatisfaction with rulings does not suffice.

Conclusion

Biers v. Dentons US may be unpublished, but it distills several perennial procedural rules into a succinct reaffirmation: pleadings must comply with the Federal Rules, criminal statutes usually furnish no private remedy, and final judgment sweeps all earlier orders into one appealable package. For practitioners, the case offers a cautionary tale about expansive yet unfocused pleadings, and for courts, it supplies fresh persuasive authority endorsing efficient dismissal and clarifying appellate jurisdiction. Its broader significance lies in fortifying the structural integrity of civil procedure against the strain of voluminous, scattershot litigation.