Murphy v. Dalton ( 2021 )


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  • Case: 21-10589     Document: 00516071865         Page: 1     Date Filed: 10/27/2021
    United States Court of Appeals
    for the Fifth Circuit                             United States Court of Appeals
    Fifth Circuit
    FILED
    October 27, 2021
    No. 21-10589
    Lyle W. Cayce
    Summary Calendar
    Clerk
    Marcus A. Murphy,
    Plaintiff—Appellant,
    versus
    Amanda Cameron Dalton, also known as Mandy Moore;
    Blattner-Energy,
    Defendants—Appellees.
    Appeal from the United States District Court
    for the Northern District of Texas
    USDC No. 2:20-CV-190
    Before Costa, Ho, and Duncan, Circuit Judges.
    Per Curiam:*
    This suit arises from a dispute between plaintiff Murphy and
    defendant Moore outside Murphy’s home. In connection with the incident,
    Murphy brought several state law claims against Moore. He brought the
    *
    Pursuant to 5th Circuit Rule 47.5, the court has determined that this
    opinion should not be published and is not precedent except under the limited
    circumstances set forth in 5th Circuit Rule 47.5.4.
    Case: 21-10589      Document: 00516071865           Page: 2   Date Filed: 10/27/2021
    No. 21-10589
    same claims against Moore’s employer, Blattner-Energy. Defendants filed
    motions to dismiss and motions for Rule 11 sanctions, all of which the district
    court granted. Because we find no error in the district court’s dismissal or
    its grant of sanctions, we AFFIRM.
    I.
    Murphy is upset because Moore allegedly drove a truck onto
    Murphy’s driveway one night. The truck was not Moore’s, but instead a
    Blatter-Energy truck that Moore drives for work. At some point that night, a
    verbal altercation broke out between the two. Murphy alleges that Moore
    threatened him during the argument. Murphy, however, is the one who was
    later charged with multiple counts of disorderly conduct.
    Murphy sued Moore for trespass and intentional infliction of
    emotional distress. He also brought claims for malicious prosecution based
    on the disorderly conduct charges that followed the incident. Murphy also
    pursued these claims against Blattner-Energy under a theory of vicarious
    liability.
    Moore and Blattner-Energy filed motions to dismiss for failure to state
    a claim. The district court granted the motions for all claims. Defendants
    also filed motions for Rule 11 sanctions. The district court granted these
    motions too, explaining that Murphy’s arguments were not warranted by
    existing law, would not have evidentiary support upon further investigation,
    and were brought to harass Moore. The court also admonished Murphy, who
    is a licensed lawyer in Colorado, for filing responses that were
    “incomprehensible” and lacking any “coherent argument.”
    We understand the district court’s frustration.        The plaintiff’s
    briefing in this case also borders on incoherence. Among other things,
    Murphy’s frequent and incorrect use of hyphens and capitalization makes it
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    difficult to read. But to the extent we can understand his challenges to the
    district court’s rulings, we find no merit to his appeal.
    II.
    The district court dismissed Murphy’s trespass claim because he did
    not allege facts to support the elements of that cause of action. That holding
    is correct if for no other reason than that Murphy did not plead that he was
    injured, which is required to recover damages for trespass under Texas law.
    Coinmach Corp. v. Aspenwood Apartment Corp., 
    417 S.W.3d 909
    , 920 (Tex.
    2013) (citing Zapata v. Ford Motor Credit Co., 
    615 S.W.2d 198
    , 201 (Tex.
    1981)); Wilen v. Falkenstein, 
    191 S.W.3d 791
    , 798 (Tex. App.—Fort Worth
    2006, pet. denied).
    The district court dismissed the malicious prosecution claims because
    they relied on similarly conclusory allegations. The court also held that one
    malicious prosecution claim is time-barred and the others are not ripe. We
    agree with these holdings. In particular, we see no facts alleged that would
    support a finding that there was a lack of probable cause to initiate the
    criminal proceedings against Murphy or that defendants exhibited malice in
    filing the charges (if they indeed did initiate the charges). See Kroger Tex.
    P’ship v. Suberu, 
    216 S.W.3d 788
    , 792 n.3 (Tex. 2006).
    The district court dismissed Murphy’s final claim—intentional
    infliction of emotional distress (IIED)—for similar reasons. It found the
    pleadings conclusory and concluded his sole factual allegation did not
    support an IIED claim. Again, we agree. Murphy alleges that Moore
    threatened him, but a threat does not satisfy the “extreme and outrageous”
    standard required for an IIED claim. GTW Sw., Inc. v. Bruce, 
    998 S.W.2d 605
    , 611–12 (Tex. 1999).
    The district court supported its dismissal of Murphy’s claims against
    Blattner-Energy on an additional ground—that Murphy alleged no plausible
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    basis for vicarious liability. The complaint makes this clear. Moore may have
    been in her work truck and wearing work clothes, but she was “off-duty.”
    And there is no other allegation sufficient to show that she was acting in the
    scope of her duties as a Blattner-Energy employee despite not being on the
    clock. See Minyard Food Stores, Inc. v. Goodman, 
    80 S.W.3d 573
    , 577 (Tex.
    2002). Rather, Moore was at the house next to Murphy’s to visit her mother.
    III.
    We review a district court’s grant of Rule 11 sanctions for an abuse of
    discretion. Haase v. Countrywide Home Loans, Inc., 
    748 F.3d 624
    , 630 (5th
    Cir. 2014). A court may impose sanctions if it finds that claims are being
    “presented for any improper purpose” or if claims are not “warranted by
    existing law or by a nonfrivolous argument for extending, modifying, or
    reversing existing law.” Fed. R. Civ. P. 11(b)(1)–(2), (c)(1).
    Although Murphy argues that this standard for sanctions should not
    apply to him because he is proceeding pro se, the district court correctly
    rejected this argument. Murphy is a licensed and practicing attorney in
    Colorado. While a higher threshold for sanctions generally applies to pro se
    plaintiffs, the leniency given pro se litigants does not apply when the self-
    represented party is a lawyer. See Thomas v. Humfield, 
    1994 WL 442484
    , at
    *3 (5th Cir. 1994) 1 (“With his formal legal training, Thomas should be
    expected to understand and to observe court procedures that we might
    otherwise be willing to excuse if neglected by typical pro se claimants.”);
    Olivares v. Martin, 
    555 F.2d 1192
    , 1194 n.1 (5th Cir. 1977) (declining to give a
    pro se litigant the “liberal construction of his complaint normally given [to]
    pro se litigants” because he was a licensed attorney);; see also Cole v. Comm’r,
    1
    “Unpublished opinions issued before January 1, 1996 are precedent.” 5th Cir.
    R. 47.5.3.
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    637 F.3d 767
    , 773 (7th Cir. 2011) (“[P]ro se litigants who are attorneys are
    not entitled to the flexible treatment granted other pro se litigants.”); Tracy
    v. Freshwater, 
    623 F.3d 90
    , 102 (2d Cir. 2010) (“[A] lawyer representing
    himself ordinarily receives no [special] solicitude at all.”). The district court
    thus applied the correct standard in imposing sanctions.
    And the court thoroughly detailed why it imposed sanctions. First, it
    explained that Murphy’s intentional infliction of emotional distress and
    vicarious liability claims were not warranted by existing law or by a good faith
    argument for changing the law. For intentional infliction of emotional
    distress, Murphy cited the correct standard—that threats do not rise to the
    level of extreme and outrageous conduct—but then alleged that Moore’s
    threat to him was extreme and outrageous. And for vicarious liability,
    Murphy admitted that Moore was off duty during the incident and never
    claimed that she was acting in the scope of her employment. This was also
    not the first time that Murphy “dragged a neighbor’s employer” into the
    same district court under a similarly “baseless” theory of vicarious liability.
    Moreover, the court found that Murphy brought these claims for an
    improper purpose: “to harass Defendants in retaliation for criminal charges
    being brought against him.” In support of this motive, the court noted that
    Murphy’s briefing was full of “ad hominem attacks” against Moore, including
    an accusation “without a shred of evidence” that Moore “utilize[ed] fake
    names to escape liability with courts in Texas.” The court also referred to
    several other statements Murphy made in an antagonistic manner against
    Moore and her counsel, such as asserting that Moore “attempted [an]
    assassination, both literally & figuratively,” and that Moore’s counsel
    “manipulate[d] the naive government, first State and now federal.”
    We find no abuse of discretion on these facts.
    ***
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    We AFFIRM the district court’s judgment. Given this ruling, we
    DENY Murphy’s motion to stay sanctions pending appeal.
    6