Matter of United Markets Intern., Inc. ( 1994 )

UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 93-2613
Summary Calendar
In the Matter of
UNITED MARKETS INTERNATIONAL, INC.,
Debtor.
W. STEVE SMITH, TRUSTEE,
Appellee,
versus
R. DAVID LEGG,
Appellant.
Appeal from the United States District Court
for the Southern District of Texas
(April 28, 1994)
Before GARWOOD, SMITH and DeMOSS, Circuit Judges.
PER CURIAM:
This is an appeal of a "death penalty" sanction imposed by the
district court on appellant R. David Legg. The district court
struck Legg's pleadings and stayed him from filing further
pleadings in the action until he pays the more than $60,000 in
sanctions previously entered against him. We AFFIRM.
Facts and Procedural History
This consolidated case arose from the 1985 bankruptcy of
United Markets International, Inc. ("UMI") -- of which Legg is the
former president and sole shareholder -- and from numerous related
lawsuits and adversary proceedings involving Legg.1 The appellee in
this case is W. Steve Smith, Trustee for the UMI bankruptcy
estate.2
After several orders to consolidate and withdraw the
reference3, three bankruptcy adversary proceedings in the UMI
bankruptcy were combined into one district court case, H-92-2141 in
the Southern District of Texas, from which Legg now appeals. Case
H-92-2141 includes adversary proceedings 85-0375, 85-0932 and 87-
1
For clarity, this opinion will refer to the relevant cases by
docket number. Legg is an attorney who has represented himself in
most of these proceedings, although he has counsel for this appeal.
2
We note that effective December 1, 1993, the bankruptcy court
granted trustee Smith's "Motion to Substitute Counsel." Because
Smith left the law firm of Woodward, Hall & Primm, P.C. in late
1993, he had requested authorization to substitute the "Law Offices
of W. Steve Smith" as "counsel for the trustee" in place of
Woodward, Hall & Primm, P.C. This authorization was granted, and
contrary to allegations raised by Legg in his Supplemental Brief,
the substitution of counsel does not "moot" anything or deprive
Smith of his status as trustee.
3
In the Southern District of Texas, pursuant to 28 U.S.C. §
157(a), all cases related to a bankruptcy proceeding are
automatically referred to the local bankruptcy court. However,
regardless of the standing automatic reference of such matters to
bankruptcy court, "the district court may withdraw ... any case or
proceeding referred under this section, on its own motion or on
timely motion of any party, for cause shown." 28 U.S.C. § 157(d).
Thus the term "withdrawal of the reference," as used in this
opinion, means that a district court entered an order effectively
transferring a bankruptcy adversary proceeding from the bankruptcy
court to the district court.
2
0866, as well as a district court sanction in CA-88-1958.4 Because
an understanding of these and other underlying lawsuits is
necessary to a disposition of this appeal, the relevant cases are
summarized below:
(1) Adversary Proceeding 85-0375, Smith v. Legg: In this
proceeding, Smith, the bankruptcy trustee, sued Legg on behalf of
the UMI estate to recover $300,000 that Legg had transferred from
UMI to himself and used to purchase a high-rise condominium. The
bankruptcy court:
(a) found that Legg had breached his fiduciary duty by
converting UMI's assets when UMI was insolvent with the
actual intent to hinder, delay and defraud UMI's
creditors;
(b) imposed a constructive trust on the condo in favor of the
UMI estate;
(c) rendered judgment against Legg in favor of the UMI estate
for more than $300,000;
(d) ordered Legg to turn over the condo and contents to
4
The lawsuit docketed as H-88-1958 was filed by Legg against
trustee Smith and several other parties, alleging racketeering,
tortious interference with contract and intentional infliction of
emotional distress, all in connection with a purported conspiracy
of all the defendants in a scheme to destroy UMI. The district
court dismissed Legg's complaint, entering judgment to that effect
on January 31, 1989. One year later, Legg filed a Rule 60(b) motion
to vacate the final judgment. The district court denied the motion.
Legg appealed to the Fifth Circuit, and on March 25, 1991, we
dismissed the appeal as "frivolous," ordering Legg to pay to each
appellee their reasonable costs and attorneys' fees as damages.
Upon our order, the trial court fixed such damages at $5,009.00 and
ordered Legg to pay such amount to Smith as trustee. The $5,009.00
sanction order has not been paid and was one of the sanctions
enforced in the order now being appealed.
3
trustee;
(e) ordered Legg to provide an accounting to the trustee for
all UMI funds used by him; and
(f) found that Legg's homestead claim on the condo was
subject to the estate's constructive trust.
Legg appealed, but the bankruptcy court's decision in 85-0375 was
affirmed by the district court on January 31, 1992 and affirmed by
this court on April 19, 1993. The reference was withdrawn in 1992
and what remained of 85-0375 -- basically the conclusion of the
appeals and the enforcement of the judgment and order to account --
was consolidated into H-92-2141 (the district court case now on
appeal)5.
(2) Adversary Proceeding 85-0932, Legg v. Obaid, et. al (This
case was originally filed by Legg in district court but was removed
to bankruptcy court as an adversary proceeding): In this
proceeding, Legg sued seven creditors of UMI, attempting to
challenge the validity of the creditors' $2 million in claims
against the UMI estate, and thus attempted to challenge the
validity of the March 28, 1985 Order of Relief granted in the main
bankruptcy case.6 The bankruptcy court in 85-0932 dismissed Legg's
5
The judgment of $300,000 plus interest has not been paid.
Smith stated in the June 25, 1993 hearing before the trial court
that, with accrued interest, "the total is in excess of $400,000 at
this time." In addition, as of the June 25, 1993 hearing, Legg had
not yet complied with the order to account for any money he took
from UMI.
6
The main UMI bankruptcy case, 85-00872-H2-5, was commenced on
February 7, 1985 by the filing of an involuntary Chapter 11
petition by several of UMI's creditors. The creditors were granted
an Order of Relief on March 28, 1985. The bankruptcy court found
4
suit against the creditors and (a) held that Legg was without
standing to bring such claims because they belong to the UMI
estate; (b) found that Legg knew full well when he filed the claims
that they were improper and unauthorized; (c) noted that all Legg's
claims "appear to be wholly without merit based on evidence
previously presented to this court"; and (d) sanctioned Legg more
than $63,000 under Federal Rule of Civil Procedure 11 for the
creditors' incurred costs and fees because the lawsuit was
"interposed for the unlawful purpose of harassing [the UMI
creditors], causing delay and unnecessarily increasing the costs of
litigation." Legg appealed, but the bankruptcy court's decision in
85-0932 was affirmed by the district court on March 12, 1990 and
affirmed by this court on June 20, 1991. On June 25, 1993, the
that Legg's attorney at the time consented to the bankruptcy
court's order with Legg's knowledge and consent.
In yet another lawsuit, H-88-1706 in the Southern District of
Texas, Legg attempted in 1988 to directly appeal the main
bankruptcy case, claiming that the March 28, 1985 Order of Relief
was a "fraud upon the Court." The district court on July 7, 1988
dismissed Legg's appeal as untimely, noting in addition that the
appeal was meritless. Legg appealed to the Fifth Circuit, and on
December 2, 1988, we affirmed, noting that "Legg's arguments
supporting his belated appeal to the district court are so
obviously without merit that we must warn him of the possibility
that sanctions may be incurred if he pursues the filing of further
frivolous pleadings or appeals in this court." Legg petitioned the
United States Supreme Court for certiorari, which was denied.
5
reference was withdrawn and what remained of the case -- the
enforcement of the sanctions -- was consolidated into H-92-2141
(the case now on appeal).7
(3) Adversary Proceeding 87-0866, Smith v. Legg: In this
proceeding, the trustee Smith sought recovery from Legg of
additional fraudulent transfers. Legg raised a statute of
limitations defense to Smith's claims. Legg also asserted a
counterclaim against Smith as trustee, seeking, inter alia, an
accounting and claiming that the trustee appointment was void. Legg
also asserted a cross-claim against Obaid, OBALCO and OTS (UMI
creditors who were also defendants in Adversary 85-0932), claiming
breach of a 1983 contract between OBALCO and UMI, tortious
interference, emotional distress and "bad faith filing of their
original involuntary [bankruptcy] petition [against UMI]." On March
30, 1989, Legg was ordered by the bankruptcy court to pay Smith
$400 as a sanction for failure to comply with discovery requests.
In 1992, before any of the issues in the case were resolved, the
reference for Adversary 87-0866 was withdrawn and the case was
consolidated into the district court case docketed H-92-2141 (the
consolidated case now on appeal).
In a hearing before the district court on June 25, 1993,
Legg's original answer, counterclaim and cross-claims were struck
7
The $63,693.06 in sanctions -- which included $4,534.00 to
Trustee Smith, $6,288.75 to Aegis Corporation and $52,870.31 to
Essam Obaid, et. al., has not been paid and was one of the
sanctions enforced in the order now being appealed.
6
by the district court as a sanction, and the court entered a
written order to that effect on July 1, 1993. It is from that order
that Legg now appeals.
Events Surrounding the Striking of Legg's Pleadings
At the hearing on June 25, 1993, the trial court heard
arguments from both Smith and Legg regarding Smith's "Motion For
Enforcement of Court Orders."8 After hearing arguments from both
parties, the district court stated that Legg's arguments were
unsupported by the record, adding that, "I certainly don't find Mr.
Legg to be credible." The court granted Smith's motion to enforce
the court orders, and made the following statements to Legg:
"It's not Mr. Smith that's making unsubstantiated
allegations, it's you. I think you're living in a dream
world. I don't think you've got any personal claim
against these people. Any claim against these people
belong[s] to UMI, and that's UMI sitting right over
there, the trustee. You don't have any claim against Mr.
Smith. Mr. Smith is trying to do his job despite the way
you have handled everything in this case."
The court denied Legg's motion for leave to file an amended
counterclaim, and continued:
"I am striking your pleadings in this case, Mr. Legg, for
failing to abide by the Court's sanctions. That is, this
Court, the Bankruptcy Court and the Court of Appeals."
8
Smith's motion listed all the outstanding sanctions, orders
and judgments against Legg and alleged that "Legg's cavalier
attitude of unnecessary litigation, frivolous appeal and refusal to
obey orders of this and various other courts should not be
condoned." Smith moved the court to hold Legg in civil contempt, or
alternatively, to dismiss Legg's counterclaim and cross-claims and
deny any right of further appeal until Legg has complied with all
court orders. The motion for enforcement had been on file for
nearly two months before the hearing date, and Legg had ample
opportunity to respond to the motion, both in writing and by oral
argument to the court.
7
Six days later, on July 1, 1993, the court entered a written order
confirming its decision: "Mr. Legg's pleadings in this matter are
hereby STRICKEN for failure to pay the sanctions assessed against
him. ... Mr. Legg is STAYED from filing further pleadings in this
matter until all sanctions assessed against him have been paid."9
The main consequence of the trial court's decision to strike
Legg's pleadings was an involuntary dismissal of Legg's
counterclaim against Smith and his cross-claims against the UMI
creditors. Legg's answer was also struck by the district court, and
Legg complains on appeal that he has been denied "the right to
defend himself in an action initiated against him," meaning trustee
Smith's allegations from bankruptcy adversary proceeding 87-0866
that Legg had made additional fraudulent transfers of UMI assets to
himself.10 However, our examination of the record in this appeal
9
We note that in the hearing and subsequent written order,
Legg was also threatened with civil contempt if he did not pay the
sanctions -- or satisfy the court with proof that he was unable to
pay them -- by a specified date. However, any contempt order was
not made an issue on appeal and is therefore not before us. The
appellate record does not reveal whether an order of civil contempt
was ever issued. In the issues on appeal raised in Legg's brief
(filed on October 28, 1993) as well as in the five issues listed in
his separate "Statement of Issues on Appeal," filed on August 12,
1993, Legg complains only of the trial court's decision to strike
his pleadings and refusal to allow him to replead until he pays the
sanctions. Legg's main concern in this appeal appears to be what he
calls a denial of access to the courts to pursue his claims. In all
Legg's writings to this court -- including his "Supplemental Brief"
filed on January 31, 1994 -- he never once raises as an issue on
appeal any threat of or use of civil contempt by the district
court. Therefore, we make no determination or comment in this
opinion on whether civil contempt is or was appropriate in this
case.
10
Note that the "fraudulent transfer" claim in 87-0866 was
separate from and in addition to the 85-0375 "fraudulent transfer"
claims that were adjudged against Legg in the bankruptcy court in
8
satisfies us that the "fraudulent transfer" claim brought by Smith
against Legg in 87-0866 (which was later consolidated into H-92-
2141) was waived by Smith in open court on June 25, 1993.
Therefore, the affirmative relief awarded to trustee Smith in
H-92-2141, which Legg appeals and which we affirm in this opinion,
consists of:
(a) a final order enforcing the sanctions previously entered
against Legg; (b) the striking of Legg's pleadings (resulting in
the involuntary dismissal, or "death penalty sanction," of Legg's
counterclaim against Smith and cross-claims against the UMI
creditors); and (c) an order staying Legg from filing further
pleadings in this action until all the sanctions against him are
paid. We will review these orders for abuse of discretion.
A federal district court has both specific and inherent power
to control its docket, and this includes the power to dismiss a
case (or here, a counterclaim and cross-claim) as a sanction for a
party's failure to obey court orders.11 Striking a defendant's
answer and denying a request to replead is equally as harsh a
sanction as dismissal of a plaintiff's case with prejudice, and the
85-0375 and were affirmed on appeal. The older 85-0375 claims
resulted in a final order to account and a money judgment against
Legg; these have not been satisfied and are still in effect. (See
our previous discussion of Adversary Proceeding 85-0375).
11
Taylor v. Combustion Eng., Inc., 782 F.2d 525, 527-27 (5th
Cir. 1986); see also Natural Gas Pipeline Co. v. Energy Gathering,
Inc., 2 F.3d 1397, 1406-07 (5th Cir. 1993)(noting that a federal
district court's power to impose sanctions for bad-faith behavior
during litigation is inherent and goes beyond powers granted by
specific Federal Rules of Civil Procedure), cert. denied sub nom.,
Fox v. Natural Gas Pipeline Co., 114 S. Ct. 882 (1994).
9
two sanctions are reviewed by the same standard.12 We will uphold
a district court's involuntary dismissal of a lawsuit unless the
district court abused its discretion.13 The Fifth Circuit has
confined such sanctions under the district court's inherent power
to instances of "bad faith or willful abuse of the judicial
process."14 We hold that Legg's behavior meets this standard.
Despite being told by court after court that his allegations
were meritless and frivolous, and despite being sanctioned more
than $68,000 due to his frivolous claims and appeals, Legg
continued to abuse the judicial process by pursuing claims that he
knew belonged to the UMI estate, claims that he has repeatedly
failed to document, and/or claims that have been previously
litigated, have been adjudged against him, and have been upheld on
appeal. Legg's counterclaim and cross-claims that were struck by
the trial court below fit into these categories. We note that the
same trial judge who struck Legg's pleadings below had heard the
majority of prior appeals in the UMI bankruptcy proceeding and
therefore had a close familiarity with the relevant issues and the
disposition of past cases involving Legg. Immediately before
12
Pressey v. Patterson, 898 F.2d 1018, 1021 n.2 (5th Cir.
1990).
13
Frame v. S-H, Inc., 967 F.2d 194, 202 (5th Cir. 1992); Price
v. McGlathery, 792 F.2d 472, 474 (5th Cir. 1986)(no abuse of
discretion found in involuntary dismissal of case when litigant had
"a history of disobedience to this court's Orders").
14
Pressey, 898 F.2d at 1021; See also E.E.O.C. v. General
Dynamics, 999 F.2d 113, 119 (5th Cir. 1993)(noting that the "death
penalty" sanction of striking pleadings is appropriate "only under
extreme circumstances" such as willfulness or bad faith).
10
striking Legg's pleadings, the district court stated that Legg has
no personal claim against the UMI creditors, and that if any claim
exists, it belongs to the UMI estate and can only be pursued by the
trustee. The court also stated that Legg had no claim against Smith
as trustee. Legg's claim against Smith was based solely on a
challenge to the bankruptcy Order of Relief and the order
appointing Smith as trustee, both of which have been separately
challenged and affirmed on appeal. Legg acknowledged in his motion
for leave to replead that the adverse disposition of his many
appeals has altered his standing to bring his counterclaim and
cross-claims. Smith contends, and we agree, that even before Legg's
claims in H-92-2141 were struck, those claims were already either
moot or meritless. He has brought the same claims before court
after court and has had them adjudged against him on each occasion.
We note additionally that Legg in his appellate brief
attempts, again, to dredge up and re-litigate these old contentions
-- for example, his own culpability for converting UMI assets
(already decided in 85-0375 and affirmed on appeal), and the
validity of the claims filed by the UMI creditors (85-0932
determined emphatically that Legg has no standing to bring these
claims, and any new challenge to the disposition of the main
bankruptcy case is untimely. See footnote 6). Legg appears to
believe that if he is allowed to present these meritless claims
before a jury, somehow he will be vindicated. He states in his
Reply Brief that "the jury may well decide that Obaid's claims are
false, that Smith has breached his fiduciary duty, and that Legg
11
has been the aggrieved party all along." Such frivolous arguments
amply support the trial court's observation that Legg "is living in
a dream world." We take Legg's past lack of success in the federal
courts into account in assessing his credibility in the case before
us. Moody v. Miller, 864 F.2d 1178, 1179 n.1 (5th Cir. 1989). Our
statement describing the sanctioned litigant in Coane v. Ferrara
Pan Candy Co., 898 F.2d 1030, 1034 (5th Cir. 1990), is equally
applicable to Legg:
"Like any litigant, [Legg] was entitled to his day in
court. But he was not entitled to use his special skills
and his knowledge as an attorney to maneuver this suit to
his advantage, and to defy the orders of the court
designed to advance its resolution."
Id. at 1034 (affirming involuntary dismissal sanction for attorney
litigant who refused to obey court orders or pay a previously
imposed sanction). Legg cannot complain of "denial of access to the
courts" after he has abused the court system time and time again
and has failed to comply with numerous court orders.15 "We can ill
15
The court's written order premises its decision on Legg's
"failure to pay the sanctions assessed against him." However, the
court at the June 25, 1993 hearing indicated to Legg that he was
also being held accountable for his general pattern of behavior
during the litigation surrounding the UMI bankruptcy, for example,
his continuing to pursue his meritless claims and not complying
with other court orders. During the hearing, in the context of
striking Legg's pleadings and threatening to hold him in contempt,
the judge made these statements to Legg:
"There's a judgment against you that you haven't paid";
"Mr. Smith doesn't want anything from you except an accounting";
"I want you to cooperate and give the information to Mr. Smith. If
the money that was taken out of UMI was spent, tell him where it
was spent. If it wasn't taken out, show him why it wasn't taken
out. Isn't that simple enough? ... Let's get this thing over with."
"[It's you] that's making unsubstantiated allegations";
"I don't think you've got any personal claim against these people";
"You don't have any claim against Mr. Smith. Mr. Smith is trying
to do his job despite the way you have handled everything in this
12
afford to permit litigants to waste scarce court resources with
disingenuous or frivolous arguments and motions asserted purely to
hinder and delay the efficient operation of justice." McLeod,
Alexander, Powel & Apffel, P.C. v. Quarles, 894 F.2d 1482, 1487
(5th Cir. 1990)(holding that party's "bad faith and callous
disregard of [his] responsibilities" justified court's striking of
pleadings and entry of default judgment against him).
Legg complains that the trial court erred by striking his
pleadings for failure to pay the sanctions without holding a fact-
finding hearing and making written findings on the issue of Legg's
financial inability to pay. Legg claims that he is too poor to pay
the sanctions, and that therefore the court's order enjoining him
from filing further pleadings until the sanctions are paid has
"wrongly precluded Legg from access to the courts, and constituted
a denial of due process." Legg's claimed inability to pay is not
established in the appellate record before us, and even if it were
established, that would not in all cases preclude the court's
order. This Circuit has previously affirmed and employed similar
sanctions against "vexatious and harassing litigants." Gelabert v.
Lynaugh, 894 F.2d 746, 748 (5th Cir. 1990); cf. Sassower v. Mead
Data Cent., Inc., 114 S. Ct. 4, 5 (1993); Day v. Day, 114 S. Ct. 4,
5 (1993). In Gelabert, a federal district court sanctioned a
prisoner litigant for court costs and further "forbade the clerk of
court to accept for filing any further lawsuits on behalf of
Plaintiff until the sanction is satisfied." Gelabert complained
case."
13
that he was too poor to pay the sanction and would never be able to
pay it as long as he remained in prison. We affirmed, holding that
inability to pay is no reason to overturn the sanction:
"Like any other pastime, recreational litigation has its
price; such sanctions as this are imposed for the very
purpose of causing the would-be pro se prisoner litigant,
with time on his hands and a disposition to retaliate
against the system, to think twice before cluttering our
dockets with frivolous or philosophical litigation."
Gelabert, 894 F.2d at 748; See also Moody v. Miller, 864 F.2d 1178,
1179 n.2 (5th Cir. 1989)(noting Fifth Circuit's decision to
prohibit frivolous litigant "from prosecuting any more IFP appeals,
absent certification of his good faith by the district court, until
he paid the sanctions in six of these cases."). If Legg is
insolvent as he claims, then additional monetary sanctions will not
be effective against him, and he has no incentive to refrain from
pursuing his frivolous counterclaim and cross-claims and forcing
his opponents to incur greater and greater legal fees and costs.
The court's order precluding further pleadings until the sanctions
are paid is appropriate in this context.
"Courts do not sit for the idle ceremony of making orders
and pronouncing judgments, the enforcement of which may
be flouted, obstructed, and violated with impunity, with
no power in the tribunal to punish the offender."
Waffenschmidt v. Mackay, 763 F.2d 711, 716 (5th Cir. 1985), cert.
denied sub nom., Currey v. Waffenschmidt, 474 U.S. 1056 (1986).
We therefore AFFIRM the district court's order striking Legg's
pleadings and staying Legg from filing further pleadings in this
action until he pays the sanctions previously entered against him.
14
The following is a list of the sanctions Legg must pay before
the stay will be lifted:16
(1) $400.00, ordered by the bankruptcy court in Adversary
Proceeding 87-0866 on March 30, 1989;
(2) $4,534.00, ordered by the bankruptcy court in Adversary
Proceeding 85-0932 on February 14, 1989;
(3) $6,288.75, ordered by the bankruptcy court in Adversary
Proceeding 85-0932 on February 14, 1989;
(4) $52,870.31, ordered by the bankruptcy court in Adversary
Proceeding 85-0932 on February 14, 1989;
(5) $5,009.00, ordered by a district court in Civil Action H-
88-1958 on December 6, 1991.
Smith urges us to take further action against Legg, arguing
that a court may structure the sanctions necessary or warranted to
control its docket, to maintain the orderly administration of
justice or to enforce its orders, and he cites Vinson v. Heckmann,
940 F.2d 114, 116-17 (5th Cir. 1991). In Vinson, we affirmed the
dismissal of a 42 U.S.C. § 1983 suit found to be frivolous by the
district court. Id. at 115. In addition, we noted that Vinson, like
Legg in this case, had been warned and sanctioned both by district
courts and appellate courts on numerous occasions because his
filings were frivolous, and that Vinson had been warned that more
severe sanctions would be imposed if he filed any more frivolous
actions. We then sua sponte ordered a more stringent sanction on
16
We note that there may be other sanction orders, judgments
and orders to pay costs now existing and in effect against Legg.
Our opinion today does not alter Legg's already existing obligation
to obey orders issued by any court or to pay any judgments or
sanctions that might be outstanding. The sanctions listed herein,
however, are those that we can identify as being referred to by the
district court order which we affirm in this opinion.
15
Vinson, directing all trial and appellate courts within our
supervisory jurisdiction to decline acceptance of any filing by
Vinson unless he obtained specific pre-authorization by a judge of
the forum court. Id. at 116-17.
We decline at this time to extend Vinson-type sanctions to
Legg in this appeal, but we take this occasion to warn Legg that
any future frivolous claims and appeals filed by him or on his
behalf will be met with that remedy.
TRIAL COURT ORDER AFFIRMED.
wjl\opin\93-2613.opn
ace 16