Stringham v. Titsworth , 88 F. App'x 7 ( 2004 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS February 4, 2004
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 03-20462
Summary Calendar
BILL STRINGHAM; FRANKLIN H. BROWN, SR.; KENNETH D. STRINGHAM,
Plaintiffs-Appellants,
versus
JIM TITSWORTH, individually and collectively doing business as
Titsworth Kennels; JOHN WESLEY WAUSON; TEXAS PARAMUTUAL
MANAGEMENT, INC.; SYLVIA TITSWORTH; TIMOTHY TITSWORTH, doing
business as Titsworth Kennels; DEAN A. HRBACEK; JAMES D. HAMMACK;
ERIC H. NEWTON; CARBETT J. DUHON; CHERI DUNCAN; CARLA COTROPIA;
MAUREEN KUZIK; GULF GREYHOUND PARTNERS, LTD.; NATIONAL GREYHOUND
ASSOCIATION; DAVID FREEMAN; PAULA COCHRAN CARTER FLOWERDAY; JOHN
T. WILLIAMS; TOM NEELY; JOHN AND JANE DOE,
Defendants-Appellees.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-02-CV-4610
--------------------
Before JONES, BENAVIDES, and CLEMENT, Circuit Judges.
PER CURIAM:*
Bill Stringham, Franklin H. Brown, Sr., and Kenneth D.
Stringham (“Appellants”) appeal from the district court’s
dismissal, with prejudice, of their action. The Appellants’
motion to strike the appellees’ briefs is DENIED.
*
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that this opinion should not be published and is not precedent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.
No. 03-20462
-2-
The Appellants’ complaint, filed in October 2002,
asserted claims under federal civil rights statutes as well as
supplemental state law claims. After several defendants moved to
dismiss pursuant to FED. R. CIV. P. 12(b)(6), the district court
determined that the various claims arose no later than 1997 and
dismissed the Appellants’ claims as time barred.
Because the district court determined that the Appellants’
claims were time barred, it was not premature for the district
court to dismiss the action without reaching the merits of the
claims. See F.D.I.C. v. Dawson, 4 F.3d 1303, 1311-12 (5th Cir.
1993). The Appellants have not shown that they are entitled to
invoke the fraudulent concealment defense to the statute of
limitations. See Rotella v. Pederson, 144 F.3d 892, 897 (5th
Cir. 1998); Borderlon v. Peck, 661 S.W.2d 907, 908 (Tex. 1983).
Our examination of the record and the Appellants’ brief
convinces us that the Appellants pleaded their best case, and
accordingly we have determined that the district court did not
err in dismissing the action with prejudice. See Jones v.
Greninger, 188 F.3d 322, 327 (5th Cir. 1999); Bazrowx v. Scott,
136 F.3d 1053, 1054 (5th Cir. 1998). The Appellants’ argument
that it was error for the district court to dismiss the action
without requiring a response from all defendants, is, in effect,
another attempt to force a consideration of claims that are time-
barred, and does not entitle them to relief. See Dawson, 4 F.3d
at 1311-12. Finally, the Appellants have not shown that the
No. 03-20462
-3-
denial of their motion for the appointment of counsel was an
abuse of discretion. See Cupit v. Jones, 835 F.2d 82, 86
(5th Cir. 1987); Ulmer v. Chancellor, 691 F.2d 209, 212 (5th Cir.
1982).
AFFIRMED; MOTION DENIED.