Jacqueline Carr v. Capital One, N.A. , 460 F. App'x 461 ( 2012 )

Case: 10-31086 Document: 00511760299 Page: 1 Date Filed: 02/16/2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
February 16, 2012
No. 10–31086 Lyle W. Cayce
Clerk
JACQUELINE CARR, in her Separate and Individual Capacity,
Plaintiff - Appellant
v.
CAPITAL ONE, N.A.,
Defendant - Appellee
Appeals from the United States District Court
for the Eastern District of Louisiana
2:10-CV-1717
Before GARZA, DENNIS, and HIGGINSON, Circuit Judges.
PER CURIAM:*
Before this panel are several motions filed by Plaintiff-Appellant
Jacqueline Carr: (1) a motion and supplemental motion to proceed as a
sanctioned litigant; (2) a motion to redact and correct a corrected copy of a trial
transcript for the record on appeal; and (3) a motion to obtain the official
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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executed oath of official Cathy Pepper for possible correction and
supplementation of the record on appeal. We DENY these motions.1
I
These motions arise in part out of several sanction orders imposed against
Jacqueline Carr (“Carr”).2
In 1992, this court ordered that Carr, her parents, and their attorney pay
$1,500 in sanctions to the Resolution Trust Corporation for filing frivolous
appeals. Resolution Trust Corp. v. Carr, No. 90-3826, slip op. at 4 (5th Cir. Apr.
3, 1992) (unpublished). In 1995, as a sanction for filing frivolous pleadings and
appeals, this court barred Carr from “filing any pleadings or documents of any
kind, either in the district courts of this circuit or in this court, without advance
written permission of a judge of the forum of this court.” Louisiana v. Carr, No.
94-30604, 1995 WL 449849, at *1 (5th Cir. June 29, 1995) (unpublished). Later
that year, this court ordered that Carr pay $200 in sanctions for prosecuting
another frivolous appeal. Carr v. Kingsmill, No. 95-30408, 1995 WL 798511, at
*1 (5th Cir. Dec. 20, 1995) (unpublished). In 1997, after Carr filed another
appeal in violation of the sanction order entered in Louisiana v. Carr, this court
ordered it stricken. See In re Sealed Appellant, No. 96-30974, slip op. at 1 (5th
Cir. July 2, 1997) (unpublished). This court further ordered that Carr would “be
sanctioned $100 per page for anything she attempts to file.” Id. Most recently,
the district court below sanctioned Carr $500 for making frivolous and repetitive
1
While a single judge may rule on a motion for permission to proceed as a sanctioned
litigant, a panel may also rule on such a motion. See, e.g., Florance v. Buchmeyer, 258 F. App’x
702, 702 (5th Cir. 2007); Groden v. Allen, 192 F. App’x 276, 277 (5th Cir. 2006). We elect to
so proceed.
2
Carr is a former attorney who was disbarred after being convicted of stealing money
from a client. See In re Carr, 874 So.2d 823, 825, 829 (La. 2004); State v. Carr, 618 So.2d 1098,
1099-1100, 1106 (La. Ct. App. 1993).
2
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arguments. Carr v. Capital One, N.A., No. 10-1717 (E.D. La. Nov. 10, 2010)
(sanction order).
These sanction orders relate, at least in part, to long-running civil
litigation that has spanned both state and federal courts in Louisiana. In July
1988, First National Bank (“FNB”) sued Carr’s father A.E. Carr, Jr. (“Mr. Carr”),
in state court for approximately $40,000 plus interest and attorney’s fees based
on Mr. Carr’s failure to pay three promissory notes. First Nat’l Bank v. Carr,
572 So. 2d 1106, 1107 (La. Ct. App. 1990). On the day of trial, Hibernia National
Bank (“Hibernia”), FNB’s successor in interest, was substituted as plaintiff. The
trial court entered judgment for Hibernia. The court of appeal affirmed. After
Mr. Carr and his wife Evella passed away, see Hanover Ins. Co. v. White Kitchen
Square, No. 93-1826, 1995 WL 6307, at *2 n.1 (E.D. La. Jan. 6, 1995)
(unpublished), Carr unsuccessfully sought to replace them as the real party-in-
interest in the litigation with Hibernia. Carr v. Hibernia Nat’l Bank, 720 So. 2d
81, 82 (La. Ct. App. 1998) (explaining that Carr had failed to offer competent
evidence to support substitution).
In January 2001, Hibernia petitioned to revive its judgment against Mr.
Carr in state court. Hibernia requested that Carr, as representative of Mr.
Carr’s succession, be served with the petition. Carr filed exceptions to the
petition. They were denied. The court of appeal dismissed Carr’s appeal of these
denials as interlocutory in September 2004. The state district court denied her
rehearing in 2005. Carr then unsuccessfully moved to recuse the district judge
from the case.
Carr then filed additional exceptions to the petition to revive judgment,
which were also denied. By this point, Capital One, N.A. (“Capital One”), had
merged with Hibernia and became the real party-in-interest. The state district
court granted the petition to revive judgment on October 1, 2009. Carr noticed
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her appeal from the granting of the petition to revive judgment but later
voluntarily dismissed the appeal.
While the petition to revive judgment was still pending, Carr sued
Hibernia in federal court in 2005. She alleged that Hibernia’s actions in
prosecuting the petition to revive judgment violated her constitutional rights to
privacy, due process, and equal protection under the First, Fifth, and Fourteenth
Amendments. Carr asserted that Hibernia’s actions violated unspecified
provisions of the National Banking Act, and she also raised pendent state law
claims. The district court dismissed Carr’s complaint for lack of subject matter
jurisdiction and for Carr’s failure to state a claim on which the district court
could grant relief. Carr appealed the dismissal of her complaint, but this court
affirmed, echoing the district court’s finding that Carr had failed to state a
remediable claim. Carr v. Hibernia Nat’l Bank, 251 F. App’x 855, 856–58 (5th
Cir. 2007).
After the state trial court granted Capital One’s petition to revive
judgment, Carr separately sued Capital One in state court as a collateral attack.
Carr alleged that Capital One’s actions in the prosecution of the petition to
revive judgment violated the Fourteenth Amendment and other constitutional
rights under § 1983. Invoking federal question jurisdiction, Capital One
removed and then moved to dismiss Carr’s complaint. Capital One asserted that
res judicata barred Carr’s complaint; that the complaint failed to state a claim
on which the district court could grant relief; and that Carr filed her claims
outside the applicable statute of limitations.
Carr moved to recuse the district court judge because he had once
represented the Louisiana State Bar Association in a case that Carr had filed
against it in 1986. She also moved to remand, contending that Capital One had
not met its burden of showing that removal was proper; that Capital One had
failed to comply with a district court directive regarding the removal of cases
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because it did not include the exhibits she had filed in the civil action with the
notice of removal; and that removal was improper on comity grounds because the
state court did not have jurisdiction over the petition to revive judgment that she
was challenging in the civil action.
The district court ruled that the doctrines of collateral estoppel and res
judicata barred her lawsuit because her claims had been litigated and were
being litigated in another court of competent jurisdiction. It also denied Carr’s
motions for recusal and for remand; granted Capital One’s motion to dismiss;
and dismissed Carr’s civil action with prejudice. The district court entered
judgment in Capital One’s favor.
Carr twice moved for reconsideration and again sought the district judge’s
recusal. The district court denied all Carr’s motions and sanctioned her $500 for
making frivolous and repetitive arguments. Carr moved to stay the imposition
of sanctions, for a supersedeas bond, for relief from judgment, and to correct a
transcript. The district court denied all of Carr’s motions, ordered Carr not to
file further pleadings in the case except for a notice of appeal, and prohibited
Carr from making further filings in the court without special permission.
Carr filed a timely notice of appeal from the dismissal of her civil action
and the denial of her first motion for reconsideration. She twice amended her
notice of appeal to include the denials of her post-judgment motions. Before she
could proceed further, the Clerk’s office cautioned:
Your appeal cannot proceed until you have
established whether previous sanctions imposed
against you in case numbers 95-30408, Carr v.
Kingsmill, 90-3826, RTC v. Carr and 2:10-CV-1717,
Carr v. Capital One, N.A., have been satisfied.
Therefore, within thirty (30) days from this date, you
must either submit payment to satisfy these sanctions
or advise in writing whether the costs taxed against you
in these cases have been paid. Attach any
documentation you may have. Since case 94-3064,
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State of Louisiana v. Carr, barred you from filing any
pleadings or documents of any kind, either in the
district courts of this circuit or in this court, without the
advance written permission of the court, you must also
submit a motion for permission to proceed as a
sanctioned litigant. If you fail to fully comply, we will
dismiss your appeal without further notice.
Carr has since paid the $500 sanction imposed by the district court but
does not know with certainty whether she has paid the earlier sanctions.
Since paying the $500 sanction, Carr has filed several motions: (1) a
motion and a supplemental motion to proceed as a sanctioned litigant; (2) a
motion to redact and correct a corrected copy of a trial transcript for the record
on appeal; and (3) a motion to obtain official executed oath of official Cathy
Pepper for possible correction and supplementation of record on appeal.
II
In support of her motions to proceed as a sanctioned litigant in this appeal,
Carr states that the monetary sanctions previously imposed by this court were
probably satisfied. She does not have any record of the satisfaction of those
sanctions, however, because her records were destroyed by Hurricane Katrina.
Carr maintains that the sanctions against her cannot still be in place because
she has participated unhindered in at least one appeal, see Carr v. Hibernia
Nat’l Bank, 251 F. App’x 855 (5th Cir. 2007), since the sanctions were imposed.3
She contends that not allowing her to proceed with this appeal would deny her
access to the courts. Carr also asserts that she should be allowed to proceed
with this appeal without paying the $500 sanction that the district court
3
She also claims that she participated in the appeal in Pershall v. Louisiana, No.
98-30004, 1999 WL 152910 (5th Cir. Feb. 18, 1999) (unpublished). There is no evidence that
she did. The record reflects that the district court repeatedly denied her leave to intervene
and eventually threatened sanctions.
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imposed (even though it seems that she has already paid it) and, moreover, that
the district court erred by denying her request for a stay and supersedeas bond.
In evaluating Carr’s motion and supplemental motion to proceed, we must
first determine whether this court’s earlier sanction orders apply to the present
appeal. There is no evidence that the monetary sanctions imposed in RTC v.
Carr or Kingsmill have been satisfied. Nevertheless, the monetary sanction
orders in those cases did not include any provision preventing Carr from
prosecuting appeals in this court. See RTC v. Carr, slip op. at 4; Kingsmill, 1995
WL 798511, at *1. Accordingly, the sanction orders in those cases do not require
Carr to obtain permission prior to proceeding with the present appeal. But in
Louisiana v. Carr, 1995 WL 449849, at *1, this court barred Carr “from filing
any pleadings or documents of any kind, either in the district courts of this
circuit or in this court, without advance written permission of a judge of the
forum court of this court. Any attempt by Carr to file frivolous pleadings in the
future will result in further sanctions.” Thus, the sanction order in that case
facially requires Carr to obtain permission before proceeding with the present
appeal. See id.Although this court has previously noted “that the imposition of sanctions
must not result in total, or even significant, preclusion of access to the courts,”
Thomas v. Capital Sec. Servs., Inc., 836 F.2d 866, 883 n.23 (5th Cir. 1988) (en
banc), this court pondered as impermissible the imposition of “monetary
sanctions that are made payable prior to the entry of a final appealable order”
and cautioned against stricter blocks to judicial access not present here.4 See
4
While the sanction order facially prohibits Carr from filing “any pleadings or
documents of any kind” in any case in the federal courts of this circuit without permission, this
sanction would not prohibit Carr from filing documents in a civil or criminal case in which she
was involuntarily brought into federal court as a defendant. In the present case, Carr
voluntarily initiated the civil action in state court, but she was involuntarily brought into
federal court when the defendant removed the action. As Carr was involuntarily brought into
the district court, it would have been questionable had the district court dismissed the civil
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also Donalson v. United States, 103 F. App’x 839, 840 (5th Cir. 2004) (modifying
a district court’s sanction order barring petitioner from filing any suits in or
removable to the Northern District of Texas to instead bar petitioner from filing
in that district any document that attempts to present a specific repetitious
challenge); Downs v. Tex. Dep’t of Criminal Justice, 108 F.3d 333 (5th Cir. 1997)
(requiring a litigant to obtain permission in certain circumstances before
proceeding before the district court); Murphy v. Collins, 26 F.3d 541, 544 (5th
Cir. 1994) (affirming imposition of sanction requiring litigant to pay a monetary
sanction and obtain permission before filing civil rights actions); Gelabert v.
Lynaugh, 894 F.2d 746, 747–48 (5th Cir. 1990) (finding district court did not
abuse its discretion in requiring a “recreational litigant,” before proceeding, to
pay a ten dollar sanction imposed in earlier case, even where she claimed she
was unable to). The requirement that Carr merely seek our permission before
proceeding, particularly in light of her history of pressing frivolous claims, does
not impose an impermissibly onerous bar to judicial access and shall be upheld.
Having concluded that the sanction order is valid and applicable to this
appeal, we now turn to whether Carr has raised a nonfrivolous issue on appeal
to warrant further review. She has not. See Stewart v. Thaler, 375 F. App’x 426,
427 (5th Cir. 2010) (explaining that a court should allow a sanctioned litigant to
proceed where he raises a nonfrivolous claim); see also 5th Cir. R. 42.2 (“If . . . it
appears to the court that the appeal is frivolous and entirely without merit, the
appeal will be dismissed.”)
action because of the sanction order. See Thomas, 836 F.2d at 883 n.23. The district court,
however, dismissed Carr’s civil action because it was barred by res judicata and collateral
estoppel—not because of the sanction order.
While Carr was involuntarily brought into federal court when the defendant removed
the civil action, she voluntarily filed the present appeal. (To be clear: Were she responding as
an appellee in this appeal, she would not need our permission to proceed.) Accordingly, the
burden placed on Carr at this phase is the burden to show the existence of a nonfrivolous issue
for appeal. See Stewart, 375 F. App’x at 427.
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Citing Barrow v. Hunton, 99 U.S. 80 (1878), and recent district court cases,
Carr asserts that the district court should have remanded this case to state court
because her petition to nullify a state-court judgment was too intertwined with
the original state-court action for the district court to assume jurisdiction over
the case. She maintains that the district court should have remanded her case
to state court because the defendant did not file the entire record from the state
court in the district court within thirty days of removal. She also asserts that
the district court erred by ordering her to pay a sanction payable to the United
States Treasury rather than the district court and, moreover, that the district
court erred by issuing an arrest warrant for her failure to pay the $500 sanction
it had imposed. She also challenges the district court’s second sanction order
requiring her to obtain permission before filing any further documents in the
district court.
When a removed civil action collaterally attacks a state-court judgment
that is so intertwined with the original state-court case that it is a continuation
of the original state-court case, the district court should remand the civil action.
Barrow, 99 U.S. at 82–83; see also Rafizadeh v. Wells Fargo Bank, N.A., No.
07-5194, 2008 WL 200019, at *4 (E.D. La. Jan. 22, 2008) (Barbier, J.)
(unpublished) (applying Barrow). Carr’s civil action, however, did more than
collaterally attack a state-court judgment; it also raised a constitutional tort
claim under § 1983 against Capital One. Carr’s § 1983 claim against Capital
One arose under the Constitution and laws of the United States and was facially
removable. See 28 U.S.C. § 1441(b) (providing that civil actions founded on
claims under the Constitution, treaties, or laws of the United States are
removable). Where a non-removable claim accompanies a claim that is
removable due to federal question jurisdiction, the entire civil action is
removable. See id. § 1441(c). Accordingly, Carr’s bare assertion that Barrow
requires remand fails to create a nonfrivolous issue for appeal.
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28 U.S.C. § 1447(b) provides that a district court “may require the
removing party to file with its clerk copies of all records and proceedings in such
State court or may cause the same to be brought before it by writ of certiorari
issued to such State court.” After Capital One filed its notice of removal, the
district court directed Capital One to file all of the state-court records within ten
days. Capital One failed to file the exhibits that Carr had filed in state court
because Carr did not serve Capital One with the exhibits. Carr corrected this
defect by filing the missing exhibits in the district court with her motion to
remand. Defects in removal procedure are not normally grounds for remand and
may be cured. In re Allstate Ins. Co., 8 F.3d 219, 221 n.4 (5th Cir. 1993).
Accordingly, Carr’s argument that the district court erred by not remanding the
case due to a procedural defect does not raise a nonfrivolous issue for appeal.
See id.Carr’s challenges to the district court’s sanction orders also fail to present
a nonfrivolous issue for appeal. FED. R. CIV. P. 11(c)(4) expressly allows a district
court to impose monetary sanctions payable to the court. Nothing in that rule
prohibits a district court from ordering that sanctions be made payable to the
United States Treasury. And although the district court issued an arrest
warrant for Carr, it did so for Carr’s failure to appear in court as ordered. The
district court vacated the arrest warrant after Carr appeared the next day and
paid the $500 sanction that had previously been imposed. Because the arrest
warrant was intended to force Carr to comply with orders of the court, not to
punish Carr, it was a proper civil contempt sanction. See FDIC v. LeGrand, 43
F.3d 163, 168 (5th Cir. 1995). The district court’s additional sanction order
requiring Carr to obtain permission before filing documents in the district court
merely duplicated the sanction order previously imposed by this court, and it
therefore could not have harmed Carr. See Louisiana v. Carr, 1995 WL 449849,
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at *1. Carr has not presented a nonfrivolous issue for appeal in her motions for
permission to proceed as a sanctioned litigant.
III
Carr has also moved for redaction and correction of transcript and to
obtain the official executed oath of official Cathy Pepper for possible correction
and supplementation of the record on appeal. Because we have denied her
motion and supplemental motion to proceed as a sanctioned litigant, we do not
reach these motions.
We instead must address another issue these motions implicate. Carr filed
these motions in violation of this court’s June 29, 1995 order, requiring her to
obtain permission before filing any document in this court or the district court
without first seeking permission. See Louisiana v. Carr, No. 94-30604, 1995 WL
449849, at *1. She should not have filed them until we acted on her motion to
proceed as a sanctioned litigant.
The June 29, 1995 order also warns Carr that “any attempt . . . to file
frivolous pleadings in the future will result in further sanctions.” On July 2,
1997, this court further admonished Carr that she would “be sanctioned $100
per page for anything she attempts to file.” See In re Sealed Appellant, No. 96-
30974, slip op. at 1. Although the June 29, 1995, order makes clear that Carr
will be subject to “further sanctions” for filing frivolous pleadings, July 2, 1997’s
sanctions order does not make clear whether it applies only in case no. 96-30974,
or in perpetuity to all appeals filed in this court and cases filed below. Its
ambiguous terms, in combination with the fact that this court has allowed her
to proceed without imposing this monetary sanction in at least one other case,
see Carr v. Hibernia Nat’l Bank, 251 F. App’x 855, counsels in favor of not
reading this threatened sanction to apply outside of case no. 96-30974.
Our order that Carr request permission to proceed as a sanctioned litigant
continues to stand. We make clear that she may file no other documents, aside
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from a notice of appeal and motion to proceed as a sanctioned litigant, until a
judge or panel of this court acts on any future motion to proceed.
IV
For the reasons above, IT IS ORDERED: Carr’s motion and supplemental
motion to proceed as a sanctioned litigant are DENIED; her appeal is
DISMISSED as frivolous. Carr’s other motions are MOOT.
If Carr files any other document in this docketed appeal, aside from a
motion seeking rehearing or reconsideration of this order filed in compliance
with this court’s rules, IT IS FURTHER ORDERED: She will be sanctioned
$100.00 per page for anything she files or attempts to file.
IT IS FURTHER ORDERED: If Carr files another case in a federal
district court in this circuit, or initiates an appeal in this court without first
obtaining permission as is required by this court’s June 29, 1995, order, she will
be sanctioned $100 per page.
AND IT IS FURTHER ORDERED: Carr is sanctioned $200 for filing the
two motions we have denied as moot; our previous orders make clear that she
must not file any pleadings or documents before this court without first
obtaining permission to proceed as a sanctioned litigant.
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