Rule 28 Waiver in Pro Se TCPA Appeals and the Nexus Limit on Inherent-Power Sanctions After Remand

I. Introduction

Case: Trupia v. Bob Moore Enterprises, No. 25-6130 (10th Cir. May 29, 2026) (Order and Judgment, nonprecedential).
Parties: Anthony Trupia (pro se plaintiff–appellant) vs. Bob Moore Enterprises, L.L.C. (“BME”) (defendant–appellee).
Core dispute: Trupia alleged BME enrolled him in automated marketing texts without required consent after servicing his vehicle and sent two service-reminder text messages. He brought claims under the federal Telephone Consumer Protection Act of 1991 (TCPA), Oklahoma’s Telephone Solicitation Act of 2022, and Oklahoma common-law intrusion upon seclusion.

Procedural posture and key issues on appeal: After removal to federal court, the district court dismissed all TCPA claims under Rule 12(b)(6), remanded state-law claims after declining supplemental jurisdiction, and denied/struck various motions. On appeal, the Tenth Circuit largely did not reach the merits because it held Trupia’s opening brief failed to comply with Federal Rule of Appellate Procedure 28(a)(8)(A), resulting in waiver. The court also rejected an attempt to raise a constitutional challenge to the Twombly/Iqbal pleading standard because it was not raised below and Trupia did not request plain-error review. Finally, the court denied BME’s appellate sanctions motion, holding the alleged abusive conduct occurred post-remand in state-court litigation and lacked a sufficient nexus to the federal appeal for sanctions under the court’s inherent authority.

II. Summary of the Opinion

The Tenth Circuit affirmed the district court’s dismissal of Trupia’s TCPA claims and the remand of his state-law claims. The appellate affirmance was driven primarily by procedural waiver: Trupia’s opening brief listed numerous issues but provided no developed argument, no meaningful engagement with the district court’s reasoning, and no record citations as required by Rule 28(a)(8)(A). Under longstanding circuit law, inadequately briefed issues are waived and cannot be revived in a reply brief.

The court addressed one argument with enough clarity to identify—Trupia’s contention that the Twombly/Iqbal plausibility standard violates the Seventh and Fourteenth Amendments—but held that argument was forfeited because it was not raised in district court and Trupia did not argue for plain-error review on appeal. The court also noted that Twombly and Iqbal remain controlling Supreme Court authority.

Separately, the court denied BME’s motion for sanctions in the Tenth Circuit. Even assuming the communications described were abusive, the court held its inherent authority to sanction litigation abuse is tied to managing its own proceedings, and the complained-of conduct occurred after remand in state-court litigation—making the state court the appropriate forum.

III. Analysis

A. Precedents Cited

1. Appellate briefing requirements and waiver

• Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836 (10th Cir. 2005): Central authority for two propositions applied here: (i) pro se litigants must follow the same procedural rules as other litigants; and (ii) the appellate court will not craft arguments or perform legal research to cure inadequate briefing. The panel used Garrett to justify treating Trupia’s issue-listing and conclusory assertions as waiver.
• Becker v. Kroll, 494 F.3d 904 (10th Cir. 2007): Cited for the rule that arguments insufficiently raised in the opening brief are waived.
• Christian Heritage Acad. v. Okla. Secondary Sch. Activities Ass'n, 483 F.3d 1025 (10th Cir. 2007): Reinforces that listing an issue without supporting argument waives it on appeal.
• Sierra Club v. Okla. Gas & Elec. Co., 816 F.3d 666 (10th Cir. 2016): Used for the principle that arguments raised for the first time in a reply brief are generally not considered—rejecting Trupia’s attempted “fix” in reply.

2. Preservation, forfeiture, and plain-error review in civil appeals

• Richison v. Ernest Grp., Inc., 634 F.3d 1123 (10th Cir. 2011): The key preservation case. The panel applied Richison to hold that because Trupia did not raise the constitutional challenge below and did not seek plain-error review on appeal, “that marks the end of the road” for reversal on that theory.

3. Controlling authority and the binding effect of Supreme Court law

• Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009): Cited as the governing plausibility pleading standard. The court rejected Trupia’s constitutional attack not only on forfeiture grounds but also by noting these cases remain binding.
• United States v. Venjohn, 104 F.4th 179 (10th Cir. 2024): Cited for the general principle that lower courts are bound by Supreme Court precedent.

4. Inherent-power sanctions and their limits

• Goodyear Tire & Rubber Co. v. Haeger, 581 U.S. 101 (2017): BME relied on Haeger for the proposition that federal courts may sanction conduct that abuses the judicial process under inherent authority. The panel accepted that premise but emphasized Haeger’s framing of inherent power as enabling courts “to manage their own affairs” and concluded the required connection was missing because the conduct occurred in state-court litigation after remand.

5. TCPA context referenced in the procedural posture

• Campbell-Ewald Co. v. Gomez, 577 U.S. 153 (2016): Cited for the proposition that a text message qualifies as a “call” within the TCPA provision at issue. Notably, while the Tenth Circuit affirmed on waiver, it still recited the district court’s TCPA reasoning, including this baseline principle.

B. Legal Reasoning

1. The opinion’s operative holding: Rule 28(a)(8)(A) waiver (even for pro se litigants)

The court treated compliance with Rule 28(a)(8)(A) as the gateway to merits review. Trupia’s opening brief was defective in the precise ways Rule 28 is designed to prevent: it contained a long list of putative issues (42), but lacked (i) developed arguments explaining why the district court erred, (ii) citations to the record, and (iii) consistent citations to relevant authority. Under Garrett v. Selby Connor Maddux & Janer and related cases, the panel refused to act as Trupia’s counsel by constructing arguments and performing legal research.

Critically, the court also applied a sequencing rule that often decides appeals: deficiencies in an opening brief are not cured by adding arguments in a reply brief (Sierra Club v. Okla. Gas & Elec. Co.). This maintains fairness to appellees (who cannot respond to new arguments) and ensures the appellate court receives the parties’ best arguments in the proper order.

2. Forfeiture vs. waiver, and the plain-error “escape hatch”

The panel implicitly distinguished two concepts that often blur in practice:

• Waiver (briefing waiver): losing an argument because it was not adequately presented on appeal (here, failure to comply with Rule 28).
• Forfeiture (preservation failure): losing an argument because it was not presented to the district court in the first instance.

On the one argument Trupia articulated (the constitutional challenge to Twombly/Iqbal), the panel held it was forfeited because it was not raised below. Under Richison v. Ernest Grp., Inc., a forfeited issue can sometimes be reviewed for plain error—but only if the appellant requests that mode of review and argues its elements. Trupia did not, so the panel treated the issue as unavailable for reversal.

3. The court’s limited merits discussion: continued vitality of Twombly/Iqbal

Even while disposing of the constitutional challenge on forfeiture grounds, the panel added a merits-adjacent point: lower courts must apply Twombly and Iqbal unless the Supreme Court overrules them. Citing United States v. Venjohn, the opinion reinforced vertical stare decisis: a litigant cannot obtain relief in the court of appeals by arguing the court should disregard controlling Supreme Court precedent.

4. Sanctions: inherent authority requires a nexus to the federal proceeding being managed

BME sought appellate sanctions based on communications described as abusive and potentially threatening. The panel did not endorse the alleged conduct. Instead, it focused on jurisdictional and institutional fit: inherent-power sanctions exist so courts may manage and protect their own proceedings and ensure their orderly disposition (Goodyear Tire & Rubber Co. v. Haeger). Because the alleged conduct occurred after remand and in connection with state-court litigation, the panel found “an insufficient connection” to the federal appeal to invoke inherent authority. The opinion pointed to a practical solution: BME had also filed a similar sanctions motion in Oklahoma state court, which the panel identified as the “appropriate forum.”

C. Impact

1. Appellate practice: the opinion’s strongest practical lesson

The most immediate impact is procedural and repeatable. The decision underscores that:

• Pro se status does not relax Rule 28 requirements in the Tenth Circuit; liberal construction does not mean the court will supply missing argumentation.
• Issue lists are not arguments. Without developed reasoning, authority, and record support, appeals can be affirmed without reaching the merits.
• Reply briefs are not a second opening brief. New or newly developed arguments are typically disregarded.

2. Preservation discipline: constitutional and other “big” arguments still must be raised below

The panel’s use of Richison v. Ernest Grp., Inc. is consequential for civil litigants: even constitutional challenges to broadly applied procedural doctrines (like plausibility pleading) must be preserved in the district court, and appellants must affirmatively argue plain-error review if they failed to do so. This preserves the trial court’s role and discourages strategic “sandbagging.”

3. Sanctions practice across federal–state boundaries after remand

The sanctions ruling provides a cautionary boundary: litigants seeking sanctions for conduct occurring in state-court proceedings after remand should ordinarily seek relief in that state forum rather than attempting to bootstrap sanctions into the federal appellate case. The practical effect is to align sanctions authority with the court that is actually supervising the relevant proceeding.

4. Substantive TCPA issues: less precedential force, but informative context

Because the Tenth Circuit affirmed on waiver, it did not establish a binding circuit rule on the TCPA merits. Still, the decision’s recitation of the district court’s reasoning highlights recurring TCPA pleading obstacles:

• The statutory ATDS definition in 47 U.S.C. § 227(a)(1) requires capacity to use a “random or sequential number generator” and to dial such numbers; conclusory “automated” allegations may be insufficient at the pleading stage.
• The district court’s view (as described) that text messages do not fall within “artificial or prerecorded voice” (47 U.S.C. § 227(b)(1)(A)(iii)) is a notable interpretive stance, though not adopted as a merits holding by the panel here.
• Plaintiffs should also consider private-right-of-action limitations for certain TCPA provisions (as Trupia conceded regarding 47 U.S.C. § 227(d)(3)(A) and § 227(e)(1)).

IV. Complex Concepts Simplified

• Rule 12(b)(6): A motion to dismiss for failure to state a claim. The court assumes well-pleaded facts are true but requires a legally sufficient claim.
• Twombly/Iqbal “plausibility”: The complaint must allege enough factual matter to make the claim plausible, not merely possible; labels and conclusions are not enough.
• Waiver (on appeal): Losing review because you did not adequately brief the issue in your opening brief (no developed argument/record citations).
• Forfeiture (in the trial court): Losing review because you did not raise the argument in the district court. Sometimes reviewable only for “plain error” if properly requested and argued.
• Plain-error review (civil): A narrow, discretionary form of review for unpreserved issues; in the Tenth Circuit, you must ask for it and explain why it applies.
• Supplemental jurisdiction & remand: When federal claims are dismissed, a federal court often declines to keep related state-law claims and sends them back to state court.
• Inherent authority sanctions: Courts can sanction bad-faith conduct that abuses the judicial process, but that power is tied to managing the court’s own proceedings; a sufficient nexus is required.

V. Conclusion

Trupia v. Bob Moore Enterprises is a procedure-centered decision with two durable takeaways. First, the Tenth Circuit will enforce Rule 28(a)(8)(A) strictly: pro se appellants must present developed arguments with authority and record citations, and failure to do so results in waiver—unfixable in a reply brief. Second, inherent-power sanctions in federal appellate court require a meaningful connection to the federal proceeding; alleged post-remand misconduct in state-court litigation should generally be addressed in that state forum. While the underlying TCPA allegations provided context, the opinion’s primary contribution is its reinforcement of appellate discipline—briefing, preservation, and forum-appropriate sanctions practice.