Lisson v. O'Hare ( 2009 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
April 16, 2009
No. 07-51151
Summary Calendar Charles R. Fulbruge III
Clerk
STEPHEN N LISSON
Plaintiff-Appellant
v.
A.L. MARK O’HARE; ASSET RESEARCH GROUP
Defendants-Appellees
Appeal from the United States District Court
for the Western District of Texas
USDC No. 1:05-CV-114
Before JOLLY, BENAVIDES, and HAYNES, Circuit Judges.
PER CURIAM:*
Plaintiff-Appellant Stephen N. Lisson appeals the take-nothing judgment
rendered against him in this action for copyright and trademark infringement
and computer fraud. The district court entered judgment on the magistrate
judge’s recommendation after Lisson failed to file a timely objection to the
magistrate judge’s report. That recommendation had been entered after Lisson
chose not to put on evidence of damages because he believed that the magistrate
judge was required to recuse himself after his law clerk viewed publicly
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
No. 07-51151
accessible portions of Lisson’s website, InsiderCV.com, which was the subject of
Lisson’s infringement and fraud claims.
If a case is assigned to a magistrate judge without a party’s consent, as
Lisson’s was, that party is entitled to file objections within 10 days after
receiving a copy of the magistrate judge’s recommendation and to have those
objections reviewed de novo by the district court. 28 U.S.C. § 636(b)(1)(C); F ED.
R. C IV. P. 72(b). But a party’s failure timely to file such written objection creates
a bar to that party’s “attacking on appeal the unobjected-to proposed factual
findings and legal conclusions accepted by the district court,” except for plain
error, “provided that the party has been served with notice that such
consequences will result from a failure to object.” Douglass v. United Services
Auto Ass’n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc). Lisson was served
with such a notice. The plain error standard has application even if the district
court has, as in Lisson’s case, alternatively accepted the magistrate judge’s
recommendation on de novo review. Id. at 1429.
“To prevail on plain error review,” a party must demonstrate an error that
was clear or obvious, that the error affected his substantial rights, and that “the
fairness, integrity, or public reputation of [his] judicial proceedings” would be
seriously affected if the error were not corrected. Norton v. Dimazana, 122 F.3d
286, 289 (5th Cir. 1997). “It is the unusual case that will present [plain] error.”
Highlands Ins. Co. v. National Union Fire Ins. Co. of Pittsburgh, 27 F.3d 1027,
1032 (5th Cir. 1994).
An error is considered plain only if it is clear or obvious under existing law.
United States v. Olano, 507 U.S. 725, 734 (1993). Whether entry of judgment on
the magistrate judge’s recommendation was plainly erroneous depends on how
this court and other courts interpreted the law at the time the district court
ruled. See United States v. Garcia-Rodriguez, 415 F.3d 452, 455 (5th Cir. 2005).
If the law was unsettled, any error by the district court would not be clear or
readily apparent. United States v. Dupre, 117 F.3d 810, 817 (5th Cir. 1997).
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No. 07-51151
Lisson cites no case in which this court has made it plain that a judge
must recuse himself simply because he or his law clerk has viewed a website
that is the subject of default proceedings to prove damages. Although one case
cited by Lisson, Kennedy v. Great Atlantic & Pacific Tea Co., 551 F.2d 593, 596
(5th Cir. 1977), bears some superficial similarities to the facts in his case, it also
presents significant differences. In Kennedy, a law clerk took a private view of
evidence for purposes related to determining fault and then, on instruction of the
district judge, communicated to defense counsel what he had seen, eventually
resulting in (a) the district court’s having to advise plaintiff of the viewing and
of the ex-parte communication and (b) plaintiff’s calling the clerk to testify. See
Kennedy, 515 F.2d at 597. We held that “the potential for prejudice to the
defendants’ case was too great . . . to conclude that the . . . overruling of the
defendants’ motion to prohibit” the clerk from testifying before the jury “or, in
the alternative, to disqualify [the district judge] from continuing in the trial was
harmless error.” Id. at 598-99. Here, however, there was no chance of
prejudicing a jury, and Lisson adduced no admission or other proof that the law
clerk ever related anything about the website to the magistrate judge other than
the fact of his visit. Moreover, “[m]ere prior knowledge of some facts” germane
to a suit “is not in itself necessarily sufficient to require disqualification.” United
States v. Seiffert, 501 F.2d 974, 978 (5th Cir. 1974).
Notably missing from Lisson’s brief is any description of the damage he
suffered, i.e., an explication of what of his was taken or otherwise harmed by the
defendants. Section 455(b) dictates disqualification if the judicial officer has
“personal knowledge of disputed evidentiary facts.” § 455(b)(1) (emphasis
added). Lisson has not shown what, if anything at all, about his website was
disputed for purposes of a damages assessment. Consequently Lisson has not
shown plain error. See Garcia-Rodriguez, 415 F.3d at 455; Dupre, 117 F.3d at
817.
AFFIRMED.
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