Clark v. Land ( 1999 )

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.