Malekzadeh v. TX Tech University ( 2002 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 02-10226
Summary Calendar
_____________________
DARREN MALEKZADEH,
Plaintiff - Appellant,
versus
TEXAS TECH UNIVERSITY; STATE OF TEXAS; TEXAS WORKFORCE
COMMISSION; TEXACO INC.; SCHLUMBERGER LIMITED, (N.V.);
BURLINGTON RESOURCES INC.; PHILLIPS PETROLEUM CO.; T. SCOTT
HICKMAN & ASSOCIATES INC.; JOHN MONTFORD; DONALD HARAGAN;
JORGE I. AUNON; JOHN BURNS; ET AL.,
Defendants - Appellees.
__________________________________________________________________
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 5:98-CV-48-J
_________________________________________________________________
September 16, 2002
Before JOLLY, HIGGINBOTHAM, and PARKER, Circuit Judges.
PER CURIAM:*
Pro se Plaintiff Darren Malekzadeh appeals the district
court’s final judgment in favor of the defendants in this civil
action. Malekzadeh appears to argue that the district court erred
in denying his motions for relief from judgment pursuant to Fed. R.
Civ. P. 59(e) and 60(b). Malekzadeh also appears to argue that the
*
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this opinion should not be published and is not precedent except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.
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district court erred in dismissing his non-Title VII claims in
their entirety and in dismissing his Title VII claims against the
individual defendants whom Malekzadeh sued in their personal and
official capacities. Finally, Malekzadeh appears to argue that the
district court committed reversible errors in several pretrial
orders and in several rulings on various non-dispositive motions
made by Malekzadeh and by the defendants before and during the
trial. After reviewing the record and the briefs of the parties,
we find Malekzadeh’s appeal to be without merit. We further find
his appeal to be frivolous insofar as Malekzadeh seeks review of
the district court’s dismissal of his claims against Burlington
Resources, Inc., Hickman & Associates, Inc., Phillips Petroleum
Co., Schlumberger, Ltd. and Texaco, Inc. (the “Petroleum Company
Defendants”). Accordingly, we AFFIRM the final judgment of the
district court, and we DISMISS Malekzadeh’s appeal pursuant to
Fifth Circuit Local Rule 42.2 insofar as it seeks review of the
district court’s dismissal of Malekzadeh’s claims against the
Petroleum Company Defendants.
This Court reviews a district court’s denial of a Rule 59(e)
or Rule 60(b) motion for abuse of discretion. Midland West Corp.
v. F.D.I.C., 911 F.2d 1141, 1145 (5th Cir. 1990)(standard of review
for Fed. R. Civ. P. 59(e)); Behringer v. Johnson, 75 F.3d 189, 190
(5th Cir. 1996)(standard of review for Fed. R. Civ. P. 60). In
this case, the district court clearly did not abuse its discretion
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in denying Malekzadeh’s Rule 59(e) and Rule 60(b) motions. The
district court’s instructions to the jury were correct, and the
jury’s verdict was supported by sufficient evidence, cf. Chemical
Distribs., Inc. v. Exxon Corp., 1 F.3d 1478, 1483 (5th
Cir.1993)(“Unless the evidence is of such quality and weight that
reasonable and impartial jurors could not arrive at such a verdict,
the findings of the jury must be upheld.”). Malekzadeh has put
forward no valid reason for altering or vacating the district
court’s final judgment or granting a new trial.
The district court’s decisions to dismiss Malekzadeh’s non-
Title VII claims in their entirety and to dismiss Malekzadeh’s
Title VII claims against the individual defendants who were sued in
their personal and official capacities were also proper for
essentially the same reasons adopted by the district court. See
Malekzadeh v. Texas Tech University, No. 5:98-CV-048-J (N.D. Tex.
Sept. 21, 1999; Sept. 24, 1999; Oct. 1, 1999; Aug. 8, 2001).
Furthermore, we find that the district court did not abuse its
discretion or commit any other reversible error with respect to any
of the pretrial orders or evidentiary rulings about which
Malekzadeh complains in his brief to this Court. Malekzadeh has
failed to show that he was prejudiced in any way by the district
court’s pretrial order or by the reasonable time limits imposed by
the court. We also find that Malekzadeh has failed to preserve for
review any alleged error in connection with the district court’s
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refusal to admit certain evidence subject to the court’s order in
limine. During the trial, the district court repeatedly explained
to Malekzadeh the proper procedures for obtaining a definitive
ruling on the admissibility of such potentially prejudicial
evidence. Because Malekzadeh did not attempt to follow those
procedures to present the evidence to the court outside the
presence of the jury, he cannot now complain about the district
court’s refusal to admit the evidence in question. Likewise,
Malekzadeh has failed to preserve for appeal any argument that the
district court erred in refusing to allow the blanket admission of
numerous exhibits because Malekzadeh failed to make any offer of
proof with respect to those exhibits. See Fed. R. Evid. 103(a);
see also Fischer v. Dallas Federal Sav. and Loan Ass'n, 835 F.2d
567 (5th Cir. 1988).
Finally, we find Malekzadeh’s appeal to be frivolous insofar
as Malekzadeh seeks review of the district court’s dismissal of his
claims against the Petroleum Company Defendants. A frivolous
appeal is one in which "the claim advanced is unreasonable, or ...
is not brought with a reasonably good faith belief that it is
justified." Stelly v. Commissioner of Internal Revenue, 761 F.2d
1113, 1116 (5th Cir.1985). In his brief to this Court, Malekzadeh
asserts that the district court improperly granted the defendants’
motions to dismiss, but he presents no argument as to why the
district court erred in dismissing his claims against the Petroleum
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Company Defendants. Malekzadeh’s complaint likewise failed to
allege any facts which could reasonably be construed to state any
kind of federal claim against the defendants. Indeed, as the
district court observed its September 24, 1999 Order, Malekzadeh
barely mentions the Petroleum Company Defendants in his Complaint
at all. Based on his pleadings and briefs and the other objective
circumstances in this case, Malekzadeh could not possibly have any
justifiable belief that he could persuade this Court to reverse the
district court's judgment as to the Petroleum Company Defendants.
As a result of Malekzadeh’s frivolous appeal, he has wasted the
time and resources of the Court and the Petroleum Company
Defendants with claims which do not appear to have any basis in law
or fact.
For the foregoing reasons, we AFFIRM the final judgment of the
district court, and we DISMISS Malekzadeh’s appeal pursuant to
Fifth Circuit Local Rule 42.2 insofar as it seeks review of the
district court’s dismissal of Malekzadeh’s claims against the
Petroleum Company Defendants.1
JUDGMENT AFFIRMED;
APPEAL DISMISSED, IN PART, AS FRIVOLOUS.
1
Malekzadeh has also filed a Petition for Hearing En Banc and
a Motion for Leave to File a Supplemental Brief. No member of the
panel nor judge in regular active service on the court having
requested that the Court be polled on Hearing En Banc, (Fed. R.
App. P. and 5th Cir. R. 35), the Motion for Hearing En Banc is
DENIED. Malekzadeh’s Motion for Leave to File a Supplemental Brief
is also DENIED.
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