In Re: Robinson ( 2003 )


Menu:
  •                                                        United States Court of Appeals
    Fifth Circuit
    F I L E D
    UNITED STATES COURT OF APPEALS
    For the Fifth Circuit                   April 21, 2003
    Charles R. Fulbruge III
    No. 02-40895                           Clerk
    Summary Calendar
    HIBERNIA NATIONAL BANK,
    Plaintiff/Appellee,
    VERSUS
    ROBERT GRAY ROBINSON,
    Defendant/Cross-Claimant/Appellant,
    VERSUS
    WALKER D WEATHERS, Individually and as partner in a law firm;
    BECKY J BRYANT, Individually and as employee of a law firm; WADE M
    WEATHERS, As partner in law firm; WEATHERS & WEATHERS; CHEROKEE
    COUNTY TEXAS; STATE BAR OF TEXAS; JOHN CORNYN,
    Cross-Defendants/Appellees.
    No. 02-40373
    ROBERT GRAY ROBINSON,
    Plaintiff/Appellant,
    VERSUS
    WILLIAM THOMAS GOECKING; JOHN CORNYN, TEXAS ATTORNEY GENERAL;
    DAWN MILLER; STATE BAR OF TEXAS,
    Defendants/Appellees.
    Appeals from the United States District Court
    for the Eastern District of Texas
    (01-MC-20)
    Before JONES, DUHÉ, and CLEMENT, Circuit Judges.
    PER CURIAM:1
    After some difficulty, we discern the following from the
    briefing and the record.         Appellant Robert Robinson (“Robinson”)
    and his wife, Becky Robinson, who now uses the name Becky Bryant
    (“Bryant”), divorced in 1999.                  Bryant, a legal assistant, was
    represented    in    the    divorce   by       her   employer,   Walker   Weathers
    (“Weathers”).       Under the divorce agreement, the couple had joint
    custody of their one child, a son.                    The relationship between
    Robinson and Bryant became acrimonious when Robinson came to
    believe that Bryant was having an affair with Weathers.                    At one
    point, Bryant secretly recorded a telephone conversation with
    Robinson in which Robinson allegedly blackmailed her.
    Bryant petitioned the state court asking to be appointed the
    sole managing conservator of her and Robinson’s son.                Bryant asked
    also for a restraining order against Robinson and damages for
    slander and libel.         At a hearing scheduled for consideration of a
    1
    Pursuant to 5th Circuit Rule 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    that this opinion should not be published and is not precedent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 Circuit
    Rule 47.5.4.
    2
    temporary restraining order, Bryant offered the tape recording as
    evidence of Robinson’s alleged blackmail.                         The judge overruled
    Robinson’s objections that the tape had been altered.                            At a second
    hearing,     also      scheduled       for       consideration         of    a    temporary
    restraining      order,     the    judge         decided     to   issue      a    permanent
    injunction against Robinson.            Robinson appealed and eventually won
    dissolution of the restraining order.
    Interspersed with these events were complaints by Robinson to
    the Disciplinary Counsel of the Texas Bar Association regarding
    various incidents of alleged misconduct by Weathers and other
    attorneys.     None of the complaints resulted in a finding by the
    Disciplinary      Counsel       that    misconduct          had    occurred        or     that
    discipline was appropriate.
    Before     the    state      court     appeal        was    resolved,        Robinson
    petitioned the federal district court under Federal Rule of Civil
    Procedure 27(a) for an order to perpetuate testimony.                              Robinson
    sought to preserve (1) the original tape of the conversation
    recorded by      Bryant,     (2)    records        and     videotapes       of    state    bar
    proceedings dealing with his complaints, and (3) recordings of the
    restraining order hearings.             Robinson alleged that he intended to
    sue for malicious prosecution and civil rights conspiracy but was
    unable to file suit until the state appeal terminated in his favor.
    The   district      court   determined           that    Rule     27   relief      was    not
    appropriate and denied the petition.
    We will discuss the two cases consolidated for this appeal
    3
    separately.
    I.
    In the first case we are asked to review the district court’s
    denial of the Rule 27 petition.2     Rule 27 provides for perpetuation
    of testimony when a petitioner “expects to be a party to an action
    cognizable in a court of the United States but is presently unable
    to bring it....” Fed. R. Civ. P. 27(a); Dresser Industries, Inc. v.
    United States, 
    596 F.2d 1231
    , 1238 (5th Cir. 1979).3        The ruling on
    a motion to perpetuate is an appealable final order.            
    28 U.S.C. § 1291
    ; Shore v. Acands, 
    644 F.2d 386
    , 388 (1981).            We review for
    abuse of discretion.      
    Id.
       “Rule 27 properly applies only in that
    special   category   of   cases   where   it   is   necessary   to   prevent
    testimony from being lost,”       Ash v. Cort, 
    512 F.2d 909
    , 911 (3d
    Cir. 1975), and where the “court is satisfied that perpetuation of
    the testimony may prevent a failure or delay of justice....”            Fed.
    R. Civ. P. 27(a)(3).
    2
    Though Robinson provided notice of appeal only with respect
    to the denial of his Rule 27 petition, his brief presents arguments
    on other issues. When an appellant "'chooses to designate specific
    determinations in his notice of appeal--rather than simply
    appealing from the entire judgment--only the specified issues may
    be raised on appeal." Pope v. MCI Telecommunications Corp., 
    937 F.2d 258
    , 266 (5th Cir. 1991)(citations omitted). Our review is
    confined to the issue noticed on appeal—the district court’s denial
    of Robinson’s Rule 27(a) petition.
    3
    The Rule 27 petition applies also to the inspection of
    documents and things.      Fed R. Civ. P. 27(a)(3); See also
    Application of Deiulemar Compagnia Di Navigazione S.p.A. v. M/V
    Allegra, 
    198 F.3d 473
    , 478 (4th Cir. 1999); Martin v. Reynolds
    Metals Corp., 
    297 F.2d 49
    , 56 (9th Cir. 1961).
    4
    The cited impediment to Robinson’s filing suit in the federal
    district court was the pendency of his state court appeal.            That
    appeal was terminated in Robinson’s favor on February 28, 2002,
    seventeen days after entry of the district court’s denial of his
    Rule 27 petition.     Thereafter, nothing prevented Robinson from
    filing his federal suit and using discovery in that proceeding to
    obtain the evidence he seeks.             The ruling on a petition to
    perpetuate   testimony   is   one   of    “temporary   application.    The
    petitioner is free to seek discovery once the anticipated action
    has been filed.”     In re Eisenberg, 
    654 F.2d 1107
    , 1112 (1981).
    Substantial time has passed since the state court of appeals
    dissolved the permanent restraining order issued by the trial
    court, thus removing the impediment cited by Robinson in his Rule
    27 petition; for a year now, Robinson has been free to file suit
    and take advantage of the discovery rules, and the Rule 27 order
    has been unnecessary.    We dismiss Robinson’s appeal of this issue
    as moot.
    II.
    The second case is only tangentially related to the facts
    discussed above.    It involves an application by Hibernia National
    Bank to foreclose on a home equity loan taken out by Robinson and
    Bryant while still married.     Hibernia petitioned under Texas Rule
    of Civil Procedure 736 for an order of foreclosure (“Rule 736
    application”).     In response to Hibernia’s Rule 736 application,
    Robinson sued several third party defendants, including his now ex-
    5
    wife, and removed the case to federal court.        The district court
    remanded the case to state court, concluding (1) that Robinson’s
    notice of removal was untimely, and (2) that the court was without
    jurisdiction   because   Robinson’s   petition   presented   no   federal
    question.   Robinson appeals the order of remand.4
    4
    Though the single issue named in Robinson’s notice of appeal
    of this case is the remand,       Robinson’s brief again presents
    arguments on other issues, namely the district court’s denials of
    his motion for recusal and his petition to perpetuate testimony
    pending appeal under Federal Rule of Civil Procedure 27(b). For
    the reason cited in note 2, 
    supra
     we decline to review the district
    court’s    denial of Robinson’s motion for recusal, an issue for
    which Robinson provided no notice.
    The ruling on Robinson’s Rule 27(b) petition is an independently
    appealable final order, see Ash v. Cort, 
    512 F.2d 909
    , 910 (3d Cir.
    1975), from which Robinson failed to take an appeal.       Robinson
    alleges that he was told by an appellate clerk that no notice of
    appeal was necessary to obtain review after the district court
    denied his Rule 27(b) petition. The nature of the Rule 27 order as
    independently appealable, as well as a reading of Federal Rule of
    Appellate Procedure 3 and its application in Pope v. MCI, 
    937 F.2d 258
    , discussed supra at note 2, demonstrates the patent
    incorrectness of this assertion. Robinson as a pro se litigant is
    not “exempt . . . from compliance with relevant rules of procedural
    and substantive law.” Birl v. Estelle, 
    660 F.2d 592
    , 593 (5th Cir.
    1981).    Robinson is entitled to no greater rights as a pro se
    litigant than would be a litigant represented by a lawyer. 
    Id.
     Even
    if the error attributed to the clerk by Robinson were within the
    scope of a court clerk’s duties, such as failure to provide notice
    of the entry of a judgment, Robinson would not be excused from
    failure to appeal as a result of the error. See Wilson v. Atwood
    Group, 
    725 F.2d 255
     (1984). Neither is Robinson entitled to rely
    on erroneous legal advice allegedly received from a court clerk as
    an excuse for his failure to appeal.
    In an abundance of caution, we note that even if Robinson had
    appealed the denial of his Rule 27(b) petition, the record supports
    a conclusion of no abuse of discretion by the district court. The
    Rule 27(b) petitioner must demonstrate that the proposed action
    would be cognizable in a court of the United States.        Dresser
    Industries, 
    596 F.2d 1231
    , 1238 (5th Cir. 1979).       The district
    court determined that it had no jurisdiction over the case. It
    would not be an abuse of discretion to deny the Rule 27 petition
    for lack of jurisdiction when the underlying action is not one
    6
    The defendant facing a motion of remand has the burden to
    establish the existence of federal jurisdiction.        Winters v.
    Diamond Shamrock Chemical Co., 
    149 F.3d 387
    , 397 (Tex. 1998).
    Appellate review of remand orders is prohibited by 
    28 U.S.C. § 1447
    (d); however, § 1447(d) makes an exception for cases removed
    pursuant to 
    28 U.S.C. § 1443
     for alleged civil rights violations.5
    See, e.g., Whitaker v. Carney, 
    778 F.2d 216
     (5th Cir. 1985); State
    of Texas v. Gulf Water Benefaction Co. 
    679 F.2d 85
    , 86 (5th. Cir
    1982).   Robinson’s notice of removal expressly relied on § 1443;
    therefore, we review the remand under the exception provided in the
    second clause of § 1447(d).
    To gain removal under § 1443, “the defendant must show both
    that (1) the right allegedly denied it arises under a federal law
    providing for specific rights stated in terms of racial equality;
    and (2) the removal petitioner is denied or cannot enforce the
    specified federal rights in the state courts due to some formal
    expression of state law.” Id. at 86 (citing Johnson v. Mississippi,
    
    421 U.S. 213
    , 219, 
    95 S. Ct. 1591
    , 1595, 
    44 L. Ed.2d 121
    , 128
    (1975)). Though Robinson cites § 1443 and makes general statements
    about the denial of civil rights based on socioeconomic status, he
    fails to allege that his rights under a statute protecting racial
    cognizable in federal court.
    5
    Because we decide that removal under § 1443 was improper, we
    need not decide whether an otherwise proper removal under § 1443
    would nonetheless be defeated by the district court’s untimeliness
    determination.
    7
    equality are denied by the law providing for Hibernia’s application
    for foreclosure. Therefore, removal under § 1443 was improper, and
    we affirm the district court’s remand of the case to state court.
    III.
    We dismiss Robinson’s appeal of case number 02-40373 as moot.
    Hibernia’s motion to dismiss the appeal of case number 02-40895 for
    lack of jurisdiction is denied.       We affirm the district court’s
    remand of case number 02-40895 to state court.
    DISMISSED in part; AFFIRMED in part.
    8