Kipps v. Caillier ( 1999 )

  •                    REVISED - December 30, 1999
                          FOR THE FIFTH CIRCUIT
                              No.    98-30978
                     JAMES CAILLIER, RAY AUTHEMENT,
              Appeal from the United States District Court
                  for the Western District of Louisiana
                            December 6, 1999
    Before WIENER, DeMOSS and PARKER, Circuit Judges.
    ROBERT M. PARKER, Circuit Judge:
         Plaintiffs appeal the district court's orders denying their
    motion in limine, dismissing the case for failure to state a
    claim and granting defendants' motion for summary judgment.    We
    VACATE in part and AFFIRM in part.
         Rexford Kipps (“Kipps”) was an assistant football coach at
    the University of Southwestern Louisiana (“USL”) for
    approximately eleven years.   Kipps's son, Kyle Kipps (“Kyle”),
    was a talented football player in southern Louisiana.    Kyle was
    actively recruited by several universities in 1996 and 1997.
         In March of 1996, Nelson Stokley (“Stokley”), USL's head
    football coach, told Kipps that if Kyle did not attend USL, then
    he was to attend a college or university outside of Louisiana.
    Stokley warned Kipps that under no circumstances was Kyle to
    attend a Louisiana university other than USL.
         On February 2, 1997, Kyle notified Stokley that he had
    orally committed to attend Louisiana State University (“LSU”) on
    a football scholarship and that this commitment would soon be
    reduced to writing.    The next day, Stokley advised Kipps that he
    was to forbid Kyle to memorialize the oral commitment to play
    football for LSU.   Kipps responded that he would not (indeed,
    could not) command his son to refuse to reduce the verbal
    commitment to writing.
         Based on Kyle's decision to attend LSU, Stokley terminated
    Kipps's employment with USL.   In a February 20, 1997, letter,
    Nelson Schexnayder, Jr. (“Schexnayder”), USL Director of
    Athletics, advised Kipps, based on Stokley's recommendation, that
    Kipps's employment with USL would be terminated effective June
    30, 1997.   Ray Authement (“Authement”), President of USL, was
    provided with a copy of this letter and subsequently approved
    Kipps's termination.   Additionally, James Caillier (“Caillier”),
    President of the Board of Trustees for Louisiana State Colleges
    and Universities approved Kipps's termination.
         On July 22, 1997, plaintiffs instituted an action against
    Stokley, Schexnayder, Authement and Caillier, in their individual
    capacities, asserting, inter alia, constitutional claims and
    Louisiana state law claims.    On August 28, 1997, defendants
    Stokley, Schexnayder and Authement filed a motion to dismiss
    pursuant to FED. R. CIV. P. 12(b)(6).   This motion was amended
    shortly thereafter to add Caillier.
         On October 31, 1997, the district court denied defendants'
    motion to dismiss the claims asserted under 42 U.S.C. § 1983
    (1994) and granted defendants' motion as to the pendent state law
    claims under LA. CIV. CODE ANN. art. 2315.6 (West 1999) and LA. REV.
    STAT. ANN. § 23:631 (West 1999).
         Stokley, Schexnayder and Authement next filed a motion for
    summary judgment pursuant to FED. R. CIV. P. 56, asserting, inter
    alia, that the at-will employment status of Kipps precluded any
    wrongful termination action; that the defendants were entitled to
    qualified immunity; and that Kipps's termination was justified
    due to the effect that Kyle's choice of colleges would have on
    USL's ability to recruit athletes and on alumni relations.      The
    next day, these defendants also filed a motion for sanctions
    against plaintiffs' counsel.    On March 27, 1998, Caillier filed a
    summary judgment motion asserting, inter alia, that he did not
    participate in Kipps's termination and that Kipps's at-will
    employment status precluded a wrongful termination claim.
    Plaintiffs moved to oppose the summary judgment motions and the
    motion for sanctions.   In addition, plaintiffs filed motions in
    limine to exclude, inter alia, the following: (1) the qualified
    immunity defense and (2) the justification defense.
         The district court denied plaintiffs' motions in limine and
    granted Stokley, Schexnayder and Authement's motion for summary
    judgment on qualified immunity grounds.   The district court
    granted appellee Caillier's motion for summary judgment on
    similar grounds and granted defendants' motion for sanctions
    against plaintiffs' counsel.
         Plaintiffs invoke the jurisdiction of this court pursuant to
    28 U.S.C. § 1291 (1994) and present the following issues for
    interlocutory appeal:
         1.    Did the district court commit reversible error in
               dismissing plaintiffs' claims based on the theory
               that “Qualified Immunity” exempted the defendants
               from liability?
         2.    Did the district court commit reversible error in
               refusing to grant plaintiffs' Motion to Exclude
               any Evidence as to the Defense of Justification?
         3.    Did the district court commit reversible error
               when it sanctioned plaintiffs' counsel?
         4.    Did the district court commit reversible error in
               dismissing plaintiffs' pendant state law claims
               under LA. CIV. CODE ANN. art. 2315.6 (West 1999)?
                            SECTION 1983 CLAIM
         The district court granted defendants' summary judgment   and
    dismissed plaintiffs' constitutional claims based on the doctrine
    of “Qualified Immunity.”   We review a grant of a summary judgment
    de novo.   See Steadman v. Texas Rangers, 
    179 F.3d 360
    , 366 (5th
    Cir. 1999).   Summary judgment shall be entered in favor of the
    moving party if the record, taken as a whole, "show[s] that there
    is no genuine issue as to any material fact and that the moving
    party is entitled to a judgment as a matter of law."    FED. R. CIV.
    P. 56(c).   A factual dispute is "genuine" where a reasonable jury
    could return a verdict for the nonmoving party.    See Crowe v.
    115 F.3d 294
    , 296 (5th Cir. 1997).    If the record, taken
    as a whole, could not lead a rational trier of fact to find for
    the non-moving party, then there is no genuine issue for trial.
    See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 
    475 U.S. 574
    , 597 (1986); Scales v. Slates, 
    181 F.3d 703
    , 708 (5th Cir.
                            Qualified Immunity
         Public officials acting within the scope of their official
    duties are shielded from civil liability by the qualified
    immunity doctrine.   See, e.g., Harlow v. Fitzgerald, 
    457 U.S. 800
    , 815-19 (1982); Morris v. Dearborne, 
    181 F.3d 657
    , 665 (5th
    Cir. 1999).   Government officials are entitled to qualified
    immunity “insofar as their conduct does not violate clearly
    established statutory or constitutional rights of which a
    reasonable person would have known.”    Harlow, 457 U.S. at 818.1
         In order to establish that the defendants are not entitled
    to qualified immunity, plaintiffs must satisfy a three-part test.
    See, e.g., Morris, 181 F.3d at 665.    First, “[a] court evaluating
            With the announcement of this wholly objective standard,
    the Supreme Court rejected the subjective, good faith element of
    the qualified immunity defense adopted in Wood v. Strickland, 
    420 U.S. 308
    , 321 (1975). Cf. Schultea v. Wood, 
    47 F.3d 1427
    , 1431
    (5th Cir. 1995) (“The Court's deletion of the subjective element
    of good faith rested on the pragmatic judgment that it
    'frequently has proved incompatible with our admonition . . .
    that insubstantial claims should not proceed to trial.'”)
    (quoting Harlow, 457 U.S. at 815-16)).
    a claim of qualified immunity must first determine whether the
    plaintiff has alleged the deprivation of a constitutional right
    at all.”   Wilson v. Layne, --- U.S. ---, ---, 
    119 S. Ct. 1692
    1697 (1999); see also Morris, 181 F.3d at 665.      Second, the court
    must “determine whether that right was clearly established at the
    time of the alleged violation.”       Wilson, --- U.S. at ---, 119 S.
    Ct. at 1697.   Finally, the court “must determine whether the
    record shows that the violation occurred, or at least gives rise
    to a genuine issue of material fact as to whether the defendant
    actually engaged in the conduct that violated the clearly-
    established right.”   Morris, 181 F.3d at 666 (quoting Kerr v.
    171 F.3d 330
    , 339 (5th Cir. 1999)).2      If it is determined
    that the official's conduct was unconstitutional, then the court
    must decide whether the conduct was nonetheless “objectively
    reasonable.”   See Eugene v. Alief Indep. School Dist., 
    65 F.3d 1299
    , 1305 (5th Cir. 1995).
         Assuming arguendo that defendants violated Kipps's clearly
    established constitutional liberty interest3 in familial
    association,4 the resolution of this issue turns on whether the
    defendants' actions were “objectively reasonable.”      Because we
            This prong is not at issue since defendants do not
    challenge the core facts as asserted by plaintiffs.
            In addition to the issues we address in this opinion,
    plaintiffs claim that the district court committed an additional
    error when it converted plaintiffs' claimed liberty interest into
    a property interest. Because we assume the existence of such
    interest, it is not necessary for us to reach this question.
            Whether a constitutional liberty interest is implicated
    by the facts of this case is highly questionable.
    find that defendants' actions were objectively reasonable, we
    affirm the district court's dismissal of Kipps's 1983 claim on
    the basis of qualified immunity.
         Even if defendants violated Kipps's clearly established
    constitutional right, they are still entitled to qualified
    immunity if their actions were objectively reasonable.
    “Objective reasonableness is a matter of law for the courts to
    decide, not a matter for the jury.”    Williams v. Bramer, 
    180 F.3d 699
    , 703 (5th Cir. 1999); see also Wilson, --- U.S. at ---, 119
    S. Ct. at 1699 (“[W]hether an official protected by qualified
    immunity may be held personally liable for an allegedly unlawful
    official action generally turns on the 'objective legal
    reasonableness' of the action.”) (quoting Anderson v. Creighton,
    483 U.S. 635
    , 639 (1987)).
         The record indicates that Kipps was fired because his son
    chose to play football for a Louisiana school other than USL.
    Notwithstanding the defendants' subjective motivation and belief
    as to the lawfulness of their conduct,5 we find the defendants'
            Defendants appear to argue on brief that because Kipps
    was an at-will employee, it was reasonable to fire him for any
    reason whatsoever. Kipps's status as an at-will employee is
    irrelevant to our analysis of this issue. It is well established
    in this Circuit that public authorities may not discharge an at-
    will employee for exercise of his constitutionally protected
              Although public school authorities may discharge an
         employee unprotected by a reasonable expectation of
         continued employment for any job-related reason or for
         no reason at all, it is well established that they may
         not do so for a reason which infringes “constitutionally
         protected rights.”
    motivation for terminating Kipps was objectively reasonable.     See
    Pfannstiel v. City of Marion, 
    918 F.2d 1178
    , 1187 (5th Cir. 1990)
    (holding that “even an officer who subjectively intends to act
    unreasonably is entitled to immunity if his actions are
    objectively reasonable”) (citing Malley v. Briggs, 
    475 U.S. 335
    341 (1986)).   Defendants' motivation, according to the record in
    this case, was to mitigate the damage that Kyle's attendance at
    LSU as opposed to USL would have on alumni relations and
    recruiting efforts.6
         The summary judgment record of this appeal contains no facts
    Brantley, 718 F.2d at 1358 (quoting Perry v. Sindermann, 
    408 U.S. 593
    , 597 (1972)). Defendants' counsel conceded this point at
    oral argument. Furthermore, the policy of the Board of Trustees
    allowing for the firing of an at-will employee, as interpreted by
    defendants, is also irrelevant to our analysis of this issue.
    “Such a policy, of course, could not make reasonable a belief
    that was contrary to a decided body of case law.” Wilson, ---
    U.S. at ---, 119 S. Ct. at 1701. See also Babb, 33 F.3d at 478
    n.8 (holding that city policy regarding arrest procedure is
    irrelevant to qualified immunity analysis).
            Similar considerations are part of the balancing test
    inherent in defendants' alternative defense of justification.
    Because we affirm the district court's dismissal of plaintiffs'
    claims based on qualified immunity, we do not speak to its ruling
    on justification except to comment on a key element of the
    defense: the proffered expert opinion of Spike Dykes. Under this
    Circuit's pre-Kumho Tire interpretation of Daubert v. Merrell Dow
    Pharmaceuticals, Inc., 
    509 U.S. 579
     (1993), the testimony of Mr.
    Dykes would have been inadmissible because it is speculative and
    not amenable to scientific verification. See Moore v. Ashland
    Chemical, Inc., 
    151 F.3d 269
     (5th Cir. 1998) (en banc). If
    anyone is an expert in recruiting football talent and alumni
    relations, Spike Dykes is such a person. The test of
    admissibility in Rule 702 is a flexible one that must be tailored
    to the facts of each case. See Kumho Tire v. Carmichael, ---
    U.S. ---, ---, 
    119 S. Ct. 1167
    , 1175 (1999) (“Daubert makes clear
    that the factors it mentions do not constitute a 'definitive
    checklist or test.'”) (quoting Daubert, 509 U.S. at 593 (“Many
    factors will bear on the inquiry, and we do not presume to set
    out a definitive checklist.”)).
    upon which we could find that defendants' actions were
    objectively unreasonable.    The district court's ruling that all
    defendants are entitled to qualified immunity is AFFIRMED.
         Plaintiffs assert that the district court erred in
    sanctioning plaintiffs' counsel (“Simon”) for a letter Simon sent
    to potential defendants in connection with this case.    Although
    the magistrate judge concluded that Simon's behavior did not
    merit sanctions, she suggested that he write an amendatory letter
    “to explain . . . any ambiguities regarding the intent and tone
    of his original letter.”    The district court granted the
    defendants' motion for sanctions and required Simon to send the
    amendatory letter.   Simon sent the mandated letter, but
    nonetheless appeals the district court's decision.    Because we
    hold that the district court abused its discretion, we VACATE its
    ruling on this issue.
         The imposition of sanctions by a district court is reviewed
    for abuse of discretion.    See Chaves v. M/V Media Star, 
    47 F.3d 153
    , 156 (5th Cir. 1995).    “A court abuses its discretion when
    its ruling is based on an erroneous view of the law or on a
    clearly erroneous assessment of the evidence.”    Id. (citing
    Cooter & Gell v. Hartmax Corp., 
    496 U.S. 384
    , 405 (1990)).
         Although a district court has inherent power to issue
    sanctions against attorneys for bad faith conduct in litigation,
    see Chambers v. NASCO, Inc., 
    501 U.S. 32
    , 43-46 (1991), the
    threshold for the imposition of such sanctions is high.      See
    Chaves, 47 F.3d at 156.    “In order to impose sanctions against an
    attorney under its inherent power, a court must make a specific
    finding that the attorney acted in 'bad faith.'” Id.
         The district court abused its discretion in imposing
    sanctions on Simon.    Not only did the district court fail to make
    a specific finding as to the bad faith of Simon's actions, but
    its sanctioning order was issued in the face of the magistrate's
    finding that Simon's actions were not “a bad faith attempt to
    disrupt or delay these proceedings.”    Because a specific finding
    as to the bad faith of Simon's actions was not made, and indeed,
    one could not be made from this record, we VACATE the district
    court's order imposing sanctions on Simon.
                          “BYSTANDER RECOVERY” CLAIM
         Plaintiffs assert that the district court committed
    reversible error in dismissing their pendent state law claim
    under article 2315.6 of the Louisiana Civil Code for failure to
    state a claim upon which relief can be granted.7   We disagree.
         A Rule 12(b)(6) order of dismissal for failure to state a
    claim on which relief can be granted is reviewed de novo, and
            Appellee Caillier asserts that we lack appellate
    jurisdiction over this claim because plaintiffs' appeal of this
    ruling was untimely. See FED. R. APP. P. 4(a)(1)(A). We
    disagree. Plaintiffs' notice of appeal was filed well within the
    required thirty days of the district court's August 18, 1998
    order. That notice of appeal covers the district court's August
    18, 1998 rulings, the district court's August 28, 1998 rulings
    and “all subsidiary rulings occurring during the pendency of this
    action.” Because the district court's October 31, 1997, 12(b)(6)
    ruling is not subject to Rule 54(b), it falls within the purview
    of “subsidiary rulings occurring during the pendency of this
    action.” Therefore, our jurisdiction is proper.
    "will not be affirmed 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."   Anderson v. Pasadena Indep. Sch.
    184 F.3d 439
    , 443 (5th Cir. 1999) (quoting Blackburn v.
    City of Marshall, 
    42 F.3d 925
    , 931 (5th Cir. 1995)).
         Article 2315.6 of the Louisiana Civil Code is a “bystander
    recovery” statute that allows certain “persons who view an event
    causing injury to another person, or who come upon the scene of
    an even soon thereafter, [to] recover damages for mental anguish
    or emotional distress that they suffer as a result of the other
    person's injury.”   LA. CIV. CODE ANN. art. 2315.6 (West 1999).   We
    are conscious of the fact that Louisiana's highest court is the
    appropriate place to seek the proper interpretation of this
    statute.   See Sanchez v. Liggett & Myers, Inc., 
    187 F.3d 486
    , 492
    (5th Cir. 1999) (“If the state through its highest court has
    spoken clearly in interpreting its law, it is not within the
    authority of this Court to reinterpret that law.”) (Parker, J.,
    dissenting).   The Louisiana Supreme Court recently “[spoke]
    clearly in interpreting” this statute.
         In Trahan v. McManus, 
    728 So. 2d 1273
     (La. 1999), rev'g 
    689 So. 2d 696
     (La. Ct. App. 1997), the parents of a 36-year-old
    patient, Terry Trahan, who died after he was negligently
    discharged from the hospital, brought suit for bystander damages
    against the doctor who discharged their son.    Several hours after
    being brought home from the hospital, Terry complained of severe
    pain and his condition deteriorated.    He died in the presence of
    his parents approximately seven hours after his discharge from
    the hospital.
         The Louisiana Supreme Court held that, assuming the doctor's
    negligent omission was the “event” that caused Terry Trahan's
    injury, it “was not an injury causing-event in which the claimant
    was contemporaneously aware that the event caused harm to the
    direct victim, as required for recovery of Article 2315.6
    damages.”   Trahan, 728 So. 2d at 1280.   In reaching this
    decision, the Trahan Court adopted the reasoning set forth in
    Lejeune v. Rayne Branch Hosp., 
    556 So. 2d 559
     (La. 1990), and
    made the following statement: “The requirements of Article
    2315.6, when read together, suggest a need for temporal proximity
    between the tortious event, the victim's observable harm, and the
    plaintiff's mental distress arising from an awareness of the harm
    caused by the event.”   728 So. 2d at 1279.
         The facts interpreted in plaintiffs' favor show that neither
    Carol nor Kyle actually viewed or “[came] upon the scene” of the
    event-causing injury (Kipps's termination), but were merely
    “notified” or “informed” of the event after it occurred.8    They
    do not fit within the framework of Article 2135.6 or the case law
    interpreting it.   Therefore, the district court's dismissal of
            We do not comment on the second prong of Article 2315.6:
    whether the harm suffered by Kipps was traumatic enough “that one
    can reasonably expect a person in the claimant's position to
    suffer serious mental anguish or emotional distress from the
    experience.” LA. CIV. CODE ANN. art. 2315.6(B) (West 1999). Cf.
    Irvin v. Foti, No. 99-1526, 
    1999 WL 504916
    , at *5 (E.D. La. July
    13, 1999) (“[W]itnessing the arrest of a child, while traumatic
    is simply not the kind of injury contemplated by Art. 2315.6.”).
    the plaintiffs' “bystander recovery” claim is AFFIRMED.
         For the foregoing reasons, we VACATE in part and AFFIRM in
    part the decision of the district court.
    DeMOSS, Circuit Judge, specially concurring:
         I concur in the result reached by the majority opinion as to
    all issues.
         I write separately to express my view that our decision
    affirming the district court’s grant of qualified immunity should
    be based upon the ground that the Kippses failed to state a cause
    of action for the violation of a clearly established
    constitutional right, rather than upon the ground that
    Schexnayder’s decision to fire Kipps merely because Kipps’ son
    decided upon another university was objectively reasonable as a
    matter of law.   Whatever the factual or legal parameters of the
    amorphous “constitutional liberty interest in familial
    association” that the majority opinion assumes into existence, I
    find no support in the case law for the proposition that such a
    right was clearly established when Kipps was fired or even that
    such a right is clearly established today. In sum, I agree that
    the defendants are entitled to qualified immunity as a matter of
    law, but I would affirm on the much stronger ground that the
    Kippses failed to state a claim for violation of a clearly
    established constitutional right.
         I write also to express my dismay that the majority has used
    this opportunity to “comment on a key element” of the defendants’
    alternative justification defense, notwithstanding the majority’s
    disclaimer that such comments are unnecessary to this Court’s
    disposition and “do not speak” to the district court’s actual
    ruling on the justification defense.    Given the majority’s
    concession that it need not, and indeed does not, reach the
    issue, see Majority Opinion at 9 n.6, I would avoid “commenting”
    on the law or the facts governing that defense by deleting
    footnote 6 in the majority opinion.    The majority has taken a
    contrary approach, choosing to interject its own and rather
    simplistic view of the complex issues raised by the need to
    harmonize the Supreme Court’s dispositions in Daubert v. Merrell
    Dow Pharmaceuticals, Inc., 
    509 U.S. 579
    113 S. Ct. 2786
    and Kumho Tire v. Carmichael, __ U.S. __, 
    119 S. Ct. 1167
    , 1175
    (1999).   That such an approach is inappropriate is perhaps best
    illustrated by the majority’s decision to elevate Coach Dykes (as
    a matter of law and presumably for all future cases) to the
    status of an expert based upon some perceived change in the law
    arising from Kumho.   Kumho was not decided until after briefing
    was complete in this case, and there is no adversarial briefing
    on the import of Kumho.   Moreover, the Court’s determination that
    the defendants are entitled to qualified immunity makes any
    “comments” on the effect of Kumho immaterial to the Court’s
    decision.   In sum, footnote 6 is nothing but gratuitous dicta
    which has no place in and forms no part of our decision in this