Long v. Wood Mizer Products Inc. , 326 F. App'x 754 ( 2009 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
No. 08-30683 May 7, 2009
Summary Calendar
Charles R. Fulbruge III
GEORGE A LONG, JR.; ROSE MARY LONG, Clerk
Plaintiffs-Appellants
v.
WOOD MIZER PRODUCTS INC, Its Owners, Employees, Insurers, and
Underwriters,
Defendant-Appellee
Appeal from the United States District Court
for the Middle District of Louisiana
USDC No. 3:08-CV-136
Before JOLLY, BENAVIDES, and HAYNES, Circuit Judges.
PER CURIAM:*
This is the third litigation between these parties. 1 George A. Long, Jr.,
and Rose Mary Long (the Longs) filed the instant suit to seek redress for alleged
wrongs and improprieties that occurred in connection with their first suit
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
1
After a sale transaction for a saw mill between George Long and Wood-Mizer went
sour, WM filed suit in Indiana on the promissory note that was part of that transaction
against George Long and his company. George Long counterclaimed and also filed suit,
together with his wife, Rose Mary, in the Middle District of Louisiana in 2005, alleging defects
in the saw mill. The Indiana case went to judgment first, which was adverse to Long. The
federal district court in the 2005 suit then entered an adverse judgment against the Longs in
2007. The instant suit was filed in the Middle District of Louisiana in 2008.
No. 08-30683
against Wood Mizer Products, Inc. (WM), which was litigated in Indiana state
court. The district court dismissed their suit as barred by res judicata and as
being an improper attempt to litigate the propriety of state court procedural
rulings in federal court. The Longs move this court to supplement their
appellate brief. Their motion to supplement is GRANTED.
The Longs also move this court for authorization to proceed in forma
pauperis (IFP) on appeal. A movant seeking leave to proceed IFP on appeal
must show that he is a pauper and that the appeal presents nonfrivolous issues.
See Carson v. Polley, 689 F.2d 562, 586 (5th Cir. 1982). The Longs arguably
have shown that they are economically eligible to proceed IFP. Adkins v. E.I. Du
Pont de Nemours & Co., 335 U.S. 331, 339 (1948).
The Longs have not, however, shown that their appeal will raise
nonfrivolous claims. They argue that the instant suit should not have been
dismissed on res judicata grounds due to improprieties in the Indiana state court
proceedings, and they contend that their case is identical to Pumphrey v. K.W.
Thompson Tool Co., 62 F.3d 1128 (9th Cir. 1995). The Longs also provide
argument concerning their claims that WM sold them a defective product and
committed fraud upon the court during the trial in Indiana.
These arguments do not suffice to show error in connection with the
district court’s judgment, nor do they establish that the Longs will present a
nonfrivolous appellate claim. To the extent that they seek to challenge the
judgment rendered by the Indiana state court, the district court did not err by
concluding that the instant suit was not the proper procedural vehicle for that
challenge. See Liedtke v. State Bar of Texas, 18 F.3d 315, 317 (5th Cir. 1994).
The Middle District of Louisiana is not an appellate court with respect to an
Indiana state court. Insofar as the Longs argue that the doctrine of res judicata
does not apply because there were improprieties in the state court proceedings,
this argument lacks merit. See Jones v. Sheehan, Young & Culp, P.C., 82 F.3d
1334, 1338 (5th Cir. 1996). The Longs’ reliance on Pumphrey is unavailing
2
No. 08-30683
because that case is both nonbinding and materially distinguishable from their
case. They have already lost once before in federal district court in their 2005
lawsuit, and that ruling is res judicata in this case as well.
The Longs have not shown that they have nonfrivolous appellate claims.
Consequently, their IFP motion is DENIED, and this appeal is DISMISSED as
frivolous. See 5 TH C IR. R. 42.2.
3