Crank v. Crank ( 1999 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
________________________________________
No. 98-11324
Summary Calendar
________________________________________
PAULA M. CRANK, Individually and as
Next Friend of KATRINA ANN CRANK and
BRITTANY RENEE CRANK, Minor Children,
Plaintiff,
JAY S. FICHTNER,
Appellant,
versus
KATHERINE W. CRANK, KAREN ARMSTRONG, and LARRY ARMSTRONG,
Defendants.
______________________________________________
Appeal from the United States District Court
for the Northern District of Texas
(3:96-CV-1844-D)
______________________________________________
September 3, 1999
Before POLITZ, WIENER, and STEWART, Circuit Judges:
Per Curiam*
This is an appeal from the district court’s grant of sanctions
under Federal Rule of Civil Procedure 11 (“Rule 11") against
counsel for Plaintiff-Appellant Paula M. Crank (“Plaintiff”). The
district court ordered Plaintiff’s attorney Jay S. Fichtner to
complete thirty (30) hours of continuing legal education and to
*
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this opinion should not be published and is not precedent except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
submit letters of apology to the Defendants-Appellees
(“Defendants”).
This is the second time these parties have been before us in
connection with a child custody dispute that was first decided
adversely to Plaintiff in state court. The federal district court
dismissed some of Plaintiff’s claims on a 12(b)(6) motion1 and
disposed of the remainder on a motion for summary judgment,2 which
we affirmed.3 Following that appeal, the district court granted
Defendants’ motion for Rule 11 sanctions on all but one claim.4
Plaintiff appeals the order; Defendants have withdrawn as parties
to the appeal.5
Defendants’ motion for sanctions under Rule 11 asserted that
each of Plaintiff’s theories of recovery was either (1) not
supported by existing law or nonfrivolous argument for extension of
the law,6 or (2) lacking evidentiary support and unlikely to have
evidentiary support even after reasonable investigation.7 District
1
1997 WL 22815 (N.D. Tex. Jan. 14, 1997).
2
1997 WL 538736 (N.D. Tex. Aug. 21, 1997).
3
146 F.3d 868, No. 97-11212 (5th Cir. June 4, 1998) (per
curiam).
4
The district court denied sanctions on the claims for
assault and battery.
5
As Defendants have withdrawn as parties to the appeal, we do
not review the correctness of that portion of the decision adverse
to them. Neither do we address the district court’s order of
sanctions on the libel and slander claims as Plaintiff does not
dispute that order on appeal.
6
Fed. R. Civ. P. 11(b)(2).
7
Fed. R. Civ. P. 11(b)(3).
2
court decisions regarding Rule 11 sanctions are reviewed for abuse
of discretion.8 As a preliminary matter, we find that the district
court did not abuse its discretion in declining to conduct an
evidentiary hearing on the Rule 11 motion.9
First, Plaintiff’s claim for malicious prosecution is
sanctionable because the state court custody case was still pending
at the time Plaintiff filed her federal court complaint. To state
a claim for malicious prosecution, a party must have prevailed in
the underlying lawsuit;10 thus, there was no evidentiary basis for
that cause of action at the time it was filed. Furthermore,
Plaintiff does not argue —— frivolously or otherwise —— for
modification or reversal of that law.
Second, Plaintiff’s persistence in attempting to identify
action “under color of” state law in support of her section 1983
claim is sanctionable. Even if we were to accept, as a legal
theory, based on but a single state court ruling on absolute
judicial immunity under state law,11 that a guardian ad litem is a
state actor for purposes of section 1983, we find no factual
evidence whatsoever of any conspiracy between such person (who was
not even named as a defendant in the original complaint) and the
named defendants, to deprive Plaintiff of constitutional rights.
8
Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 405 (1990).
9
Merriman v. Security Ins. Co. of Hartford, 100 F.3d 1187,
1192 (5th Cir. 1996).
10
James v. Brown, 637 S.W.2d 914, 918 (Tex. 1982).
11
Delacourt v. Silverman, 919 S.W.2d 777, 786 (Tex. App. 1996)
(cited in Appellant’s Brief).
3
Finally, the district court’s order of sanctions on the claim
for intentional infliction of emotional distress is not erroneous.
We decline to consider Plaintiff’s theory of emotional distress
resulting from “abduction or enticement,” presented for the first
time on appeal, in support of her argument that the allegations in
the complaint were warranted by existing law or nonfrivolous
argument for extension of the law.
Based on our review of the Memorandum Opinion and Order of the
district court in light of the facts revealed by the record and the
legal arguments advanced in Plaintiff’s appellate brief, we
conclude that the district court did not abuse its discretion in
ordering sanctions against Mr. Fitchner. For essentially the same
reasons set forth in the well-reasoned opinion of that court, its
order of sanctions is, in all respects,
AFFIRMED
4