Clark v. Land ( 1999 )


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  •               IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT
    No. 98-30597
    Summary Calendar
    LARRY E. CLARK,
    Plaintiff-Appellant,
    versus
    GEORGE B. LAND; ET AL,
    Defendants,
    ROBERT G. GRAVES; PAUL RAY DRY; JAMES M. DOUSAY;
    FALCON A. MORGAN; THOMAS R. STEPHENS; BURNIE MALONE;
    RONALD J. BERTRAND; ROBERT L. LEDOUX; ATTORNEY'S
    LIABILITY ASSURANCE SOCIETY, INC; H. DAVID GULLETTE;
    KEATS EVERETTE; NEIL WAGONER; FRANK DENTON; NORMAN L.
    SCISSON; CHARLES R. SCOTT; EDWARD A MICHEL; W.P. PATIN;
    LAWRENCE A. DURANT; ANNA E. DOW; ROGER L. BURFORD;
    E. B. NOBELS; EUGENE E. CHIARULLI, JR.; LOUISIANA DEPARTMENT
    OF TRANSPORTATION AND DEVELOPMENT; BROOK, PIZZA & VAN
    LOON LLP, erroneously sued as Brook, Morial, Cassibry,
    Fraiche & Pizza; MANGHAM & DAVIS, Successors in
    interest to Mangham, Hardy, Rolfs, Bailey & Abadie,
    Erroneously sued as Mangham, Hardy, Rolfs, Bailey & Abadie,
    Defendants-Appellees,
    BERTRAND & SOILEAU; CHARLES E SOILEAU,
    Movants-Appellees.
    * * * * * * *
    Consolidated with
    98-30731
    * * * * * * *
    LARRY E. CLARK,
    Plaintiff-Appellant,
    versus
    GEORGE B. LAND; ET AL,
    Defendants,
    H. DAVID GULLETTE; KEATS EVERETTE; ANNA E. DOW; ROGER L. BURFORD;
    EUGENE E. CHIARULLI, JR; BROOK, PIZZA & VAN LOON LLP,
    Defendants-Appellees.
    - - - - - - - - - -
    Appeal from the United States District Court
    for the Eastern District of Louisiana
    USDC No. 97-CV-1266-D
    - - - - - - - - - -
    June 30, 1999
    Before DAVIS, DUHÉ, and PARKER, Circuit Judges.
    PER CURIAM:1
    The motion of Appellees Mangham & Davis, Attorneys’ Liability
    Assurance Society, Inc., and Robert L. Ledoux to dismiss appeal No.
    98-30597 for lack of jurisdiction is GRANTED as to those Appellees.
    As an initial matter, we note that, in a case pending for less
    than one year, the district court entered five FED. R. CIV. P. 54(b)
    judgments in a three month period. A district court should certify
    an appeal under Rule 54(b) only when an immediate appeal is
    necessary      to    alleviate   a    danger   of   hardship   or   injustice;   a
    certification should not be entered as a matter of routine courtesy
    to counsel or the parties.            See PYCA Industries, Inc. v. Harrison
    County Waste Water Management Dist., 
    81 F.3d 1412
    , 1421 (5th Cir.
    1996). Although we find no danger of hardship or injustice in this
    case,     in   the    interest   of    judicial     economy    we   refrain   from
    dismissing the appeals based on improvident certification, proceed
    to the merits, and DISMISS THE APPEALS AS FRIVOLOUS.
    1
    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.
    Clark’s notice of appeal in No. 98-30597, filed May 27, 1998,
    was effective only as to the district court’s May 8, 1998, judgment
    dismissing    Clark’s   claims      against   Defendants      Robert   Bertrand,
    Charles Soileau, and the law firm of Bertrand & Soileau, and the
    district court’s April 28, 1998, judgment dismissing Clark’s claims
    against Defendants Robert G. Graves, Paul Ray Dry, James M. Dousay,
    Falcon A. Morgan, Thomas R. Stephen, Burnie Malone, Neil Wagoner,
    Frank Denton, Norman L. Scisson, Edward A Michel, Jude W. P. Patin,
    Lawrence A. Durant, and the Louisiana Department of Transportation
    and Development.
    Clark argues that his claims against Appellees Dow, and Brook,
    Pizza & Van Loon LLP are not time-barred because prescription was
    interrupted by his state court lawsuit against them which raised
    essentially the same claims and he suggests that the district court
    erroneously applied La. R. S. 9:5605 (the peremptive statute for
    legal malpractice) when Clark’s claims against these Defendants
    sounded in fraud rather than malpractice.
    Clark’s appellate argument ignores the fact that his district
    court   complaint   alleged    that    these      Appellees   committed   legal
    malpractice rather than fraud.         Furthermore, Clark concedes in his
    appellate brief that he has unsuccessfully raised the same claims
    against these Appellees in a state court lawsuit. Therefore, these
    claims are barred by principles of res judicata.                See Russell v.
    SunAmerica Sec., Inc., 
    962 F.2d 1169
    , 1172 (5th Cir. 1992).                Thus,
    Clark   has   failed    to   show    that   the    district    court   erred   by
    dismissing his claims against Appellees Dow, and Brook, Pizza & Van
    Loon LLP.     Giddings v. Chandler, 
    979 F.2d 1104
    , 1106 (5th Cir.
    1992); see Reeder v. North, 
    701 So. 2d 1291
    , 1294-99 (La. 1997).
    Clark challenges the district court’s determination that his
    claims against the remaining Appellees are time-barred on the basis
    that each of the individual Appellees is a member of an ongoing
    conspiracy directed against Clark.              We find his conclusional
    assertions of a conspiracy unpersuasive.           See Babb v. Dorman, 
    33 F.3d 472
    , 476 (5th Cir. 1994); Hale v. Harney, 
    786 F.2d 688
    , 690
    (5th Cir. 1986).
    Having allowed Clark to amend his complaint once as of right,
    we find no abuse of discretion in the district court’s denial of
    Clark’s subsequent motions to amend on the basis that Clark had
    failed to include new substantive allegations and that his claims
    were time-barred.      Wimm v. Jack Eckerd Corp., 
    3 F.3d 137
    , 139 (5th
    Cir. 1993).
    For the foregoing reasons, we conclude that the APPEALS ARE
    FRIVOLOUS and DISMISS THEM AS SUCH.       Howard v. King, 
    707 F.2d 215
    ,
    219-20 (5th Cir. 1983); 5TH CIR. R. 42.2.        We caution Clark that any
    additional frivolous appeals filed by him or on his behalf will
    invite the imposition of sanctions.             To avoid sanctions, Clark
    should review any pending appeals to ensure that they do not raise
    arguments that are frivolous.
    MOTION TO DISMISS FOR LACK OF JURISDICTION GRANTED AS TO
    Appellees MANGHAM & DAVIS, ATTORNEYS’ LIABILITY ASSURANCE SOCIETY,
    INC.,   AND   ROBERT   L.   LEDOUX;   APPEALS    DISMISSED   AS   FRIVOLOUS;
    SANCTION WARNING ISSUED.