Stephen Avdeef v. Royal Bank of Scotland, P.L.C. , 616 F. App'x 665 ( 2015 )

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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 14-11039 United States Court of Appeals
Fifth Circuit
FILED
STEPHEN M. AVDEEF, June 8, 2015
Lyle W. Cayce
Plaintiff–Appellant Clerk
v.
THE ROYAL BANK OF SCOTLAND, P.L.C.; ROYAL BANK OF SCOTLAND
CITIZENS, NATIONAL ASSOCIATION; HONORABLE JOHN P. CHUPP;
SHAWN KEVIN BRADY, individually and doing business as The Brady Law
Firm; THE STATE OF TEXAS; SIR PHILIP HAMPTON, individually and in
his capacity as Chairman of the Group Board; ROYAL BANK OF
SCOTLAND CITIZENS FINANCIAL GROUP, INCORPORATED; ELLEN
ALEMANY, individually and as Chairman and CEO,
Defendants–Appellees
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:13-CV-967
Before JONES, CLEMENT, and PRADO, Circuit Judges.
PER CURIAM:*
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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After a Texas state court entered judgment against him in a suit to
recover on a debt, pro se Plaintiff–Appellant Stephen Avdeef filed suit in
federal court against the presiding state-court judge, his opponent, and
opposing counsel. Avdeef alleged, inter alia, violations of 42 U.S.C. § 1983
and the federal Fair Debt Collection Practices Act (“FDCPA”), and he
requested $26 million in damages and declaratory and injunctive relief. The
district court dismissed Avdeef’s claims, holding in the alternative that the
suit was barred by the Rooker–Feldman doctrine and that the complaint
failed to state a claim upon which relief could be granted. We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
This federal suit arises from civil proceedings in Texas state court. In
2010, Defendant–Appellee Royal Bank of Scotland Citizens, N.A. (“RBS
Citizens”) sued Plaintiff–Appellant Stephen Avdeef and his son, Toby Avdeef,
in Tarrant County District Court to recover on a defaulted car note.
Defendant–Appellee Judge John P. Chupp presided over the state-court
proceedings and granted summary judgment to RBS Citizens. The Fort
Worth Court of Appeals affirmed. Avdeef v. RBS Citizens, N.A., No. 02–12–
00069–CV, 2012 WL 6632754, at *1 (Tex. App.—Fort Worth Dec. 21, 2012, no
pet.) (per curiam) (mem. op.).
After the judgment was upheld on appeal, RBS Citizens attempted to
proceed with post-judgment discovery by deposing Avdeef. Judge Chupp
denied Avdeef’s motion to quash the deposition, entered an order compelling
the deposition, and imposed a $500 sanction on Avdeef. Avdeef failed to
appear for the deposition and failed to comply with two orders to show cause
why he should not be held in contempt of court. Judge Chupp subsequently
adjudged Avdeef in contempt and issued a writ of body attachment directing
law enforcement to present Avdeef in court. Avdeef unsuccessfully sought a
writ of mandamus from the Fort Worth Court of Appeals to enjoin post-
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judgment discovery. Law enforcement then executed the writ of attachment
and Judge Chupp held a hearing that culminated in an order directing
Avdeef to submit to a deposition. During this hearing, Judge Chupp advised
Avdeef that if he refused to comply with the deposition order, he could be
jailed for contempt:
THE COURT: Well, I mean, I can do this if you want, I
mean, I can order you to appear at his office to do the deposition
again, and if you don’t do it, I mean, I can put you in jail up to
180 days for contempt.
MR. AVDEEF: Yes, Your Honor.
THE COURT: I mean, I don’t want to, and you probably
don’t want to miss six months of your life for something as silly
as doing a two-hour deposition. But, I mean, I guess you can go
ahead and if you skip it, you can try to appeal me to the Texas
Supreme Court, and if you lose that, then when we pick you up,
you’ll be subject to 180 days. Or you could just sit [and] go do a
deposition real quick.
Two days after the hearing, Avdeef filed suit pro se in federal court. He
named as defendants RBS Citizens and its subsidiary RBS Citizens Financial
Group, Inc., by and through its Chairman Ellen Alemany; 1 Royal Bank of
Scotland, P.L.C. (“RBS PLC”), by and through its Chairman Philip Hampton;
Judge Chupp; Shawn K. Brady, who represented RBS Citizens in the state-
court litigation; and the State of Texas.
Avdeef asserted six causes of action: (1) a § 1983 claim against Judge
Chupp for violating Avdeef’s Fourteenth Amendment right to due process by
threatening Avdeef with arrest “to prevent [him] from perfecting a proper
appeal”; (2) a claim against RBS, Brady, and the State of Texas for violating
the FDCPA through “perjury and falsification of evidence . . . to directly and
openly avoid the overriding Federal Statute that would have properly
1Alemany resigned from her position at RBS Citizens Financial Group, Inc. on
September 30, 2013, more than two months before Avdeef filed suit.
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dismissed the State District Court civil litigation for lack of standing”; (3) a
§ 1983 claim against Judge Chupp for violating Avdeef’s civil rights by
engaging in ex parte communications, violating state and local rules, and
perpetrating a “Fraud Upon The Court”; (4) a § 1983 claim against Judge
Chupp and the State of Texas for exhibiting “anti-pro se litigant
discriminatory bias”; (5) a claim against all defendants for common-law
defamation through the “creat[ion] [of] a public court record that slanders
and defames the Plaintiff”; and (6) an injunction “to terminate the lower
State Court’s plenary authority.” Avdeef sought a declaratory judgment “that
Defendants’ acts . . . are in violation of Avdeef’s civil rights and are in
violation of the Constitution, . . . laws and treatises of the United States,” as
well as compensatory damages of $26,860,000. Avdeef served all defendants
himself via mail and presented affidavits of proof of service.
The State of Texas and RBS Citizens filed pre-answer motions to
dismiss under Federal Rule of Civil Procedure 12(b), asserting, inter alia,
improper service of process and failure to state a claim upon which relief
could be granted. Avdeef moved to strike RBS Citizens’ motion as untimely
and founded on misrepresentations, and he separately moved for default
judgments against RBS PLC and Hampton, Judge Chupp, and Brady. RBS
Citizens objected to Avdeef’s motion for default against RBS PLC and
Hampton, claiming improper service of process, and Judge Chupp and Brady
filed motions to dismiss under Rule 12(b) for improper service of process and
failure to state a claim. Avdeef then filed a motion for Rule 11 sanctions
against RBS Citizens and RBS PLC, accusing the defendants of
misrepresenting the nature of their shared representation.
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The district court referred all pending motions to a magistrate judge.
The magistrate recommended that all of Avdeef’s motions be denied. 2 The
magistrate also separately issued findings, conclusions, and
recommendations concerning the defendants’ motions to dismiss. The
magistrate recommended that the district court grant each motion because
(1) the Rooker–Feldman doctrine deprived the district court of federal subject-
matter jurisdiction; (2) Judge Chupp and the State of Texas were immune
from suit; and (3) Avdeef’s complaint failed to state claims against the
remaining defendants upon which relief could be granted. 3 Avdeef timely
objected to the magistrate’s report and recommendations.
Before the district court reviewed the magistrate’s report and
recommendations, Avdeef moved for leave to file an amended complaint.
Avdeef included a proposed amended complaint that was identical to his
original complaint, with one exception: he added a single cause of action
against Tina Fett, the court reporter in the state-court hearing on RBS
Citizens’ motion for summary judgment. Avdeef alleged, in relevant part,
that Fett “criminally conspired with all the Defendants to remove entire
sections of the . . . hearing transcript,” thereby “intentionally and maliciously
depriv[ing] [Avdeef] of his constitutionally protected right to Due Process Of
Law.” RBS Citizens, Judge Chupp, and the State of Texas all opposed
Avdeef’s motion.
2 Specifically, the magistrate concluded that: (1) Avdeef’s motion to strike RBS
Citizens’ motion to dismiss was meritless, and Avdeef’s underlying claims against RBS
Citizens were subject to dismissal; (2) Avdeef’s motions for default judgment against Judge
Chupp and Brady were moot because both defendants filed motions to dismiss predicated in
part on improper service of process; (3) Avdeef’s motion for default judgment against RBS
PLC failed because all claims were subject to dismissal under Rule 12(b); and (4) Avdeef’s
motion for sanctions lacked a colorable basis in law.
3 The magistrate also noted that RBS PLC, Hampton, and Alemany had not entered
appearances in the case.
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The district court adopted the magistrate’s report and recommendations
over Avdeef’s objections. In addition to dismissing Avdeef’s claims, the district
court denied Avdeef leave to amend as futile, reasoning that the proposed
amended complaint neither “resolve[d] the issues of subject-matter
jurisdiction” nor “state[d] a claim upon which relief may be granted.” After the
district court entered judgment in favor of the defendants, Avdeef
unsuccessfully moved for reconsideration and then timely filed this appeal.
II. JURISDICTION AND STANDARD OF REVIEW
The district court had jurisdiction over Avdeef’s suit pursuant to 28
U.S.C. § 1331. We have jurisdiction to review the district court’s final
judgment pursuant to 28 U.S.C. § 1291. 4
We review the denial of a motion for default judgment for abuse of
discretion. Lewis v. Lynn, 236 F.3d 766, 767 (5th Cir. 2001). We apply the
same standard of review to the denial of a motion for Rule 11 sanctions.
Haase v. Countrywide Home Loans, Inc., 748 F.3d 624, 630 (5th Cir. 2014).
By contrast, we review the dismissal of a claim under Rule 12(b)(6) de
novo. Vanderbrook v. Unitrin Preferred Ins. Co. (In re Katrina Canal Breaches
Litig.), 495 F.3d 191, 205 (5th Cir. 2007). We “accept all well-pleaded facts as
true, viewing them in the light most favorable to the plaintiff.” Jones v.
Greninger, 188 F.3d 322, 324 (5th Cir. 1999) (per curiam). “To avoid dismissal,
4 Avdeef’s notice of appeal indicates that he sought review of “the Final Judgment of
the [district court], entered in this case on August 15, 2014 granting the dismissal of all
Defendants and dismissing Plaintiff’s claims.” Citing Warfield v. Fidelity & Deposit Co., 904
F.2d 322, 325 (5th Cir. 1990), the defendants assert that Avdeef’s failure to specify the
district court’s other orders in his notice of appeal deprives this court of jurisdiction to
entertain any claims of error other than those relating to the final judgment of dismissal.
However, “we generously interpret the scope of the appeal, and require a showing of
prejudice to preclude review of issues ‘fairly inferred’ from the notice and subsequent
filings.” Williams v. Henagan, 595 F.3d 610, 616 (5th Cir. 2010) (per curiam). Given that
Avdeef is representing himself, and no defendant has demonstrated prejudice, we review all
of Avdeef’s adequately briefed claims of error. See Barksdale v. Union Planters Nat’l Bank,
175 F. App’x 690, 692 n.2 (5th Cir. 2006) (per curiam).
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a plaintiff must plead ‘enough facts to state a claim to relief that is plausible
on its face.’” Johnson v. Teva Pharm. USA, Inc., 758 F.3d 605, 614 (5th Cir.
2014) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim
has facial plausibility when the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Put
differently, the plaintiff’s “[f]actual allegations must be enough to raise a right
to relief above the speculative level.” Twombly, 550 U.S. at 555.
Likewise, when the denial of leave to amend a complaint is predicated
solely on futility, “we apply a de novo standard of review identical, in practice,
to the standard used for reviewing a dismissal under Rule 12(b)(6).” City of
Clinton, Ark. v. Pilgrim’s Pride Corp., 632 F.3d 148, 152 (5th Cir. 2010).
Finally, we note that “[a]lthough we liberally construe briefs of pro se
litigants and apply less stringent standards to parties proceeding pro se . . . ,
pro se parties must still brief the issues and reasonably comply with the
standards of [Federal Rule of Appellate Procedure] 28.” Grant v. Cuellar, 59
F.3d 523, 524 (5th Cir. 1995) (per curiam) (footnote omitted).
III. DISCUSSION
Avdeef, proceeding pro se, purports to raise fourteen claims of error.
Pared down to its essentials, however, Avdeef’s brief presents four asserted
errors: (1) the district court’s denial of Avdeef’s motions for default judgment;
(2) its denial of Avdeef’s motion for sanctions; (3) its dismissal of Avdeef’s
claims on the alternative grounds of Rooker–Feldman, absolute and sovereign
immunity, and Rule 12(b)(6); and (4) its denial of Avdeef’s motion for leave to
amend his complaint. 5 We discuss each issue in turn.
5 Several points in Avdeef’s brief relate to the conduct of the judge and the parties in
Avdeef v. Rockline Industries, Inc., an unrelated case that was litigated in the Northern
District of Texas and resulted in an unfavorable verdict against Avdeef that this court
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A. The Denial of Avdeef’s Motions for Default Judgment
Avdeef asserts that the district court erroneously denied his motions for
default judgment given the defendants’ untimely responses. For authority, he
relies solely on the Local Rules of the United States District Court for the
Northern District of Texas.
Default judgments are “a drastic remedy, not favored by the Federal
Rules and resorted to by courts only in extreme situations.” Lewis, 236 F.3d
at 767 (quoting Sun Bank of Ocala v. Pelican Homestead & Sav. Ass’n, 874
F.2d 274, 276 (5th Cir. 1989)). Correspondingly, “a ‘party is not entitled to a
default judgment as a matter of right, even where the defendant is
technically in default.’” Id. (quoting Ganther v. Ingle, 75 F.3d 207, 212 (5th
Cir. 1996)). Further, proper service of process is a jurisdictional prerequisite
to the entry of a default judgment. See Rogers v. Hartford Life & Accident Ins.
Co., 167 F.3d 933, 940 (5th Cir. 1999).
Here, each of the targets of Avdeef’s motions for default judgment
asserted both inadequate service of process and meritorious defenses to
Avdeef’s claims. Avdeef served process on the domestic defendants by certified
mail, and on the foreign defendants by Federal Express. As the defendants
note, under both the Federal Rules of Civil Procedure and the Texas Rules of
Civil Procedure, a party is not permitted to serve process, even by mail. See
Fed. R. Civ. P. 4(c)(2) (“Any person who is at least 18 years old and not a party
may serve a summons and complaint.” (emphasis added)); Tex. R. Civ. P. 103
(“[N]o person who is a party to or interested in the outcome of a suit may serve
any process in that suit . . . .” (emphasis added)). There is no exception for pro
upheld on appeal. See Avdeef v. Rockline Indus., Inc., 404 F. App’x 844, 844–45 (5th Cir.
2010) (per curiam). These points also raise new allegations of judicial bias and improper
influence by the Rockline parties in the instant matter. To the extent Avdeef claims judicial
impropriety here, he has waived such a claim by failing to petition for recusal under 28
U.S.C. § 144. See Avdeef, 404 F. App’x at 845.
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se litigants. See, e.g., Shabazz v. City of Hous., 515 F. App’x 263, 264 (5th Cir.
2013) (per curiam). Additionally, as this circuit has interpreted the Hague
Convention, service by mail on a foreign defendant does not satisfy Federal
Rule of Civil Procedure 4(f). Nuovo Pignone, SpA v. Storman Asia M/V, 310
F.3d 374, 383–85 (5th Cir. 2002). Moreover, in their responses, each defendant
contended that Avdeef’s complaint failed to state any claims upon which relief
could be granted. 6 In view of the above, coupled with Avdeef’s threadbare
briefing and our general policy disfavoring default judgments, we perceive no
abuse of discretion in the district court’s refusal to enter default.
B. The Denial of Avdeef’s Motion for Sanctions
Although Avdeef makes no direct argument that the district court erred
in denying his motion for sanctions, he accuses the district court of complicity
in opposing counsel’s violations of local rules of procedure and the rules of
professional conduct. Avdeef’s motion for sanctions centered on his allegation
that counsel for RBS Citizens misled the court by “answering” Avdeef’s
complaint on behalf of RBS PLC. RBS Citizens responded that its counsel had
not suggested that the firm was representing RBS PLC, but rather had
properly and ethically notified the court of deficiencies in service on RBS PLC.
Beyond conclusory allegations of bias and conspiracy, Avdeef provides no
reason to find the district court abused its broad discretion in denying his
motion for sanctions. See Haase, 748 F.3d at 630–31. We therefore affirm.
C. The Dismissal of Avdeef’s Claims Against All Defendants
Avdeef mounts a scattershot attack on the district court’s judgment
dismissing his claims against all defendants. We first address the district
court’s conclusion that the Rooker–Feldman doctrine bars all of Avdeef’s
6 To the extent that Avdeef claims error in the district court’s willingness to permit
the defendants to file motions to dismiss before answering Avdeef’s complaint, he overlooks
that this order of pleadings is expressly authorized by Rule 12(b).
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claims, as this matter is jurisdictional. Truong v. Bank of Am., N.A., 717 F.3d
377, 381–82 (5th Cir. 2013). We then proceed to the district court’s alternative
determination that Avdeef’s complaint fails to state a claim upon which relief
can be granted, bearing in mind that we may affirm the judgment below on
any ground supported by the record. Sobranes Recovery Pool I, LLC v. Todd &
Hughes Constr. Corp., 509 F.3d 216, 221 (5th Cir. 2007).
1. The Rooker–Feldman Doctrine
The Rooker–Feldman doctrine occupies “narrow ground”: it bars only
“cases brought by state-court losers complaining of injuries caused by state-
court judgments rendered before the district court proceedings commenced
and inviting district court review and rejection of those judgments.” Exxon
Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 284 (2005). This Court
has observed that “[a] state court judgment is attacked for purposes of
Rooker–Feldman when the [federal] claims are ‘inextricably intertwined’ with
a challenged state court judgment, or where the losing party in a state court
action seeks what in substance would be appellate review of the state
judgment.” Weaver v. Tex. Capital Bank, N.A., 660 F.3d 900, 904 (5th Cir.
2011) (per curiam) (second alteration in original) (citations and internal
quotation marks omitted). However, Rooker–Feldman “does not preclude
federal jurisdiction over an ‘independent claim,’ even ‘one that denies a legal
conclusion that a state court has reached.’” Id. (quoting Exxon, 544 U.S. at
293). Indeed, the doctrine “generally applies only where a plaintiff seeks
relief that directly attacks the validity of an existing state court judgment.”
Id. If the plaintiff claims damages for injuries caused by the defendants’
actions—even those occurring during litigation—rather than injuries arising
from a state-court judgment itself, the federal suit is not barred by Rooker–
Feldman. See Truong, 717 F.3d at 383.
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We conclude that this case does not fall within the limited set of
matters subject to Rooker–Feldman. Critically, Avdeef’s complaint seeks
relief other than review and reversal of the adverse state-court judgment: he
requests damages for alleged constitutional violations and torts committed by
the parties to the state-court action. This relief does not “directly attack[] the
validity of an existing state court judgment.” Weaver, 660 F.3d at 904.
Relatedly, the source of Avdeef’s injuries, according to his complaint, is not
the state judgment but the allegedly unlawful conduct of his adversaries. See
Truong, 717 F.3d at 383. The mere fact that Avdeef’s claims appear to be
“inextricably intertwined” with the state-court judgment is not enough to
invoke Rooker–Feldman’s jurisdictional bar. See id. at 384–85. Thus, we turn
to the district court’s alternative grounds for dismissal.
2. The Claims Against Judge Chupp and the State of Texas
The district court accepted the magistrate’s recommendation that Judge
Chupp was entitled to absolute judicial immunity and the State of Texas was
entitled to sovereign immunity. On appeal, Avdeef cites no authority in
support of his position that immunity is unavailable to these defendants,
relying instead on conclusory allegations of bribery and a conspiracy to alter
state-court records. Given that judges are entitled to absolute immunity for all
actions taken in their judicial capacity, even when allegedly rooted in malice
and corruption, Ballard v. Wall, 413 F.3d 510, 515 (5th Cir. 2005), we find no
error in the district court’s dismissal of the claims against Judge Chupp. 7
7 Avdeef makes no effort to argue that Judge Chupp’s actions were “nonjudicial” in
nature or were taken “in the complete absence of all jurisdiction,” as required to overcome
judicial immunity. See Ballard, 413 F.3d at 515. We also note that while absolute immunity
shields Judge Chupp against Avdeef’s claims for money damages, prospective injunctive
relief is theoretically available to Avdeef under Ex Parte Young, 209 U.S. 123 (1908). This
observation is of no matter, however, as Avdeef has not stated a claim for prospective
injunctive relief against Judge Chupp individually. Setting aside his conclusory allegations
of bias and corruption, Avdeef’s sole claim against Judge Chupp arises from the contempt
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Likewise, as the Eleventh Amendment confers immunity on “an
unconsenting State,” Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89,
100 (1984), and the State of Texas has not waived its sovereign immunity for
claims “based on an act or omission of a court of this state or any member of a
court of this state acting in his official capacity,” Tex. Civ. Prac. & Rem. Code
§ 101.053, we agree with the district court that Avdeef’s claims against the
state must fail.
3. The FDCPA Claims Against All Defendants
The magistrate summarily recommended that the district court dismiss
Avdeef’s claims under the FDCPA for failing to state a claim upon which relief
could be granted. Avdeef’s complaint alleges, in relevant part:
Through blatant acts of perjury and falsification of evidence made
known to, and openly supported by State District Court Judge
John P. Chupp, the Defendants have maliciously violated the
Federal Fair Debt Collection Practices Act to directly and openly
avoid the overriding Federal Statute that would have properly
dismissed the State District Court civil litigation for lack of
standing.
Even construing Avdeef’s pleadings liberally, as we must, Haines v. Kerner,
404 U.S. 519, 520 (1972), we cannot perceive a claim for relief under the
FDCPA. At most, Avdeef charges the defendants with seeking to avoid
application of the FDCPA, which he claims—without authority—would have
hearing in which Judge Chupp allegedly threatened Avdeef with arrest. In response to the
State of Texas’s motion to dismiss, Avdeef attached the state-court transcript
memorializing the exchange in question. The transcript reflects that Judge Chupp was
simply informing Avdeef of the consequences of disobeying a court order—and, contrary to
Avdeef’s claim that Judge Chupp sought to thwart his efforts to perfect an appeal, Judge
Chupp actually encouraged Avdeef to file an appeal. The district court could properly
review these official records on a motion to dismiss. See Collins v. Morgan Stanley Dean
Witter, 224 F.3d 496, 498–99 (5th Cir. 2000); Cinel v. Connick, 15 F.3d 1338, 1343 n.6 (5th
Cir. 1994).
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deprived the state court of jurisdiction over the collection suit. 8 Accordingly,
we find no reversible error in the dismissal of Avdeef’s FDCPA claims.
4. The State-Law Claims Against All Defendants
The magistrate’s general recommendation that the district court dismiss
Avdeef’s “other causes of action against the non-state Defendants” under Rule
12(b)(6) apparently encompassed Avdeef’s state-law defamation claims. Again,
Avdeef makes no legal argument as to why his state-law claims survive
dismissal. The defendants point out that to state a claim for defamation under
Texas law, Avdeef must establish that the defendants (1) published a
statement, (2) that was defamatory concerning the plaintiff, (3) while acting
with at least negligence regarding the truth of the statement. See WFAA–TV,
Inc. v. McLemore, 978 S.W.2d 568, 571 (Tex. 1998). Avdeef’s complaint
summarily accuses all defendants of “creat[ing] a public court record that
improperly slanders and defames Plaintiff well outside of the confines of the
State of Texas.” The only specific statement identified in the complaint is
Judge Chupp’s alleged threat of arrest in reference to Avdeef’s contempt of
court—a statement made during the course of judicial proceedings that cannot
be attributed to any other defendant. Even on a liberal reading of Avdeef’s
pleadings, the elements of a state-law defamation claim cannot be discerned.
Moreover, we note that under Texas law, “[c]ommunications in the due course
of a judicial proceeding will not serve as the basis of a civil action for libel or
slander, regardless of the negligence or malice with which they are made.”
James v. Brown, 637 S.W.2d 914, 916 (Tex. 1982). We therefore affirm the
dismissal of Avdeef’s state-law claims as well.
8 The Fort Worth Court of Appeals rejected this contention on direct appeal, Avdeef
v. RBS Citizens, 2012 WL 6632754, at *3–4, and Avdeef makes no new legal argument here.
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5. The § 1983 Claims Against the Private-Party Defendants
The magistrate concluded, and the district court agreed, that Avdeef’s
§ 1983 claims against the private-party defendants failed to plead with the
requisite plausibility the “under color of state law” element of the cause of
action. A non-state actor may be found to have acted “under color of state law,”
and therefore be subject to liability under § 1983, “if he or she is a ‘willful
participant in joint activity with the State or its agents.’” Cinel v. Connick, 15
F.3d 1338, 1343 (5th Cir. 1994) (quoting Adickes v. S.H. Kress & Co., 398 U.S.
144, 152 (1970)). To support § 1983 liability on a theory of conspiracy, the
plaintiff “must allege facts that suggest: 1) an agreement between the private
and public defendants to commit an illegal act and 2) an actual deprivation of
constitutional rights.” Id. (citations omitted).
Only Avdeef’s second and third causes of action—asserting violations of
the FDCPA and violations of local rules and ex parte communications directed
at perpetrating a fraud on the court—make any allegation even approximating
a conspiracy. However, as the magistrate accurately observed, Avdeef’s
pleadings make no specific factual contentions regarding the nature of the
conspiracy or the participants’ roles in the same. Further, Avdeef’s pleadings
do not identify any federally protected interest of which the defendants’ actions
deprived him. See Baldwin v. Daniels, 250 F.3d 943, 946 (5th Cir. 2001) (per
curiam) (“To bring a procedural due process claim under § 1983, a plaintiff
must first identify a protected life, liberty or property interest and then prove
that governmental action resulted in a deprivation of that interest.”); cf.
Phelan v. Norville, 460 F. App’x 376, 380–82 (5th Cir. 2012) (affirming the
dismissal of a pro se § 1983 due process claim for failure to identify an
infringed federal right). Avdeef makes no legal argument on appeal, resting
instead on his conclusory charges that a conspiracy existed. Even accounting
for Avdeef’s pro se status, we agree with the district court that Avdeef’s
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complaint fails to permit “the reasonable inference that the defendant[s] [are]
liable for the misconduct alleged,” and therefore remains “speculative” rather
than “plausible.” See Iqbal, 556 U.S. at 678; Twombly, 550 U.S. at 555.
D. The Denial of Leave to Amend Avdeef’s Complaint
Avdeef’s final claim of error relates to the district court’s refusal to
grant him leave to amend his complaint. The district court denied Avdeef
leave to amend on grounds of futility, concluding that the proposed amended
complaint neither “resolve[d] the issues of subject-matter jurisdiction” nor
“state[d] a claim upon which relief may be granted.” As noted above, Avdeef’s
proposed amendments were limited to the addition of a § 1983 cause of action
against court reporter Tina Fett for conspiring with all other defendants to
alter the transcript of the proceedings in violation of Avdeef’s Fourteenth
Amendment right to due process of law.
The Federal Rules of Civil Procedure mandate that leave to amend be
“freely give[n] . . . when justice so requires.” Fed. R. Civ. P. 15(a)(2). However,
“it is within the district court’s discretion to deny a motion to amend if it is
futile.” Stripling v. Jordan Prod. Co., LLC, 234 F.3d 863, 872–73 (5th Cir.
2000). Amendment is futile if the new complaint “could not survive a motion
to dismiss,” Rio Grande Royalty Co., Inc. v. Energy Transfer Partners, L.P.,
620 F.3d 465, 468 (5th Cir. 2010), a determination of law that we review de
novo, City of Clinton, 632 F.3d at 152.
We find no reversible error in the district court’s determination that
Avdeef’s proposed amended complaint would not survive a motion to dismiss.
The deficiencies in Avdeef’s original six causes of action remain, see supra
Part III(C), and the new, seventh cause of action fails to state a claim under
Rule 12(b)(6) standards. As with Avdeef’s original § 1983 claims, see supra
Part III(C)(5), the new cause of action fails to allege a conspiracy with the
required specificity and plausibility, see Cinel, 15 F.3d at 1343, and neglects
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Case: 14-11039 Document: 00513070245 Page: 16 Date Filed: 06/08/2015
No. 14-11039
to identify a discrete interest protected by federal law, see Baldwin, 250 F.3d
at 946–47. Indeed, the only relevant factual allegation Avdeef makes is that
the transcript was doctored to remove his “complete oral argument pertaining
to [his] civil litigation against ROCKLINE industries in regard to [his] minor
child’s Burkholderia Cepacia bacteriological infection.” Given that the
hearing in question pertained to a state civil-collection matter entirely
unrelated to Avdeef’s federal personal-injury suit against Rockline, there is
no reasonable basis to infer that the complained-of conduct violated Avdeef’s
right to due process of law. See Phelan, 460 F. App’x at 381–82; cf. Villanueva
v. McInnis, 723 F.2d 414, 418–19 (5th Cir. 1984) (“[I]t remains necessary [for
§ 1983 liability] to prove an actual deprivation of a constitutional right; a
conspiracy to deprive is insufficient.”).
IV. CONCLUSION
For the foregoing reasons, we AFFIRM the district court’s judgment.
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