Hamad v. Center for Jewish Community Studies , 265 F. App'x 414 ( 2008 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
February 19, 2008
No. 07-50165 Charles R. Fulbruge III
Summary Calendar Clerk
RIAD ELSOLH HAMAD,
Plaintiff-Appellant,
v.
CENTER FOR JEWISH COMMUNITY STUDIES;
AMERICANS AGAINST HATE; JOE KAUFMAN,
Chairman of Americans Against Hate;
MILITANTISLAMMONITOR.ORG; DOTSTER INC.;
CENTER FOR THE STUDY OF POPULAR CULTURE;
DAVID HOROWITZ,
Defendants-Appellees.
Appeal from the United States District Court
for the Western District of Texas
USDC No. A 06 CA 285 SS
Before HIGGINBOTHAM, STEWART, and OWEN, Circuit Judges.
PER CURIAM:*
Plaintiff-Appellant Riad Elsolh Hamad (“Hamad”), pro se, brought
defamation and related claims against Defendants-Appellees Center for Jewish
Community Studies, Americans Against Hate, Joe Kaufman,
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 07-50165
MilitantIslamMonitor.org, Dotster, Inc., Center for the Study of Popular Culture,
and David Horowitz (collectively “Defendants”). Dotster, Inc. seeks sanctions
and costs against Hamad as well as other such relief that this Court deems
proper. In a related action, Daniel Pipes and the Middle East Forum (which
operates Campus Watch) seek attorneys’ fees arising from their earlier
involvement in this case. For the following reasons, we AFFIRM the ruling of
the district court, DENY Dotster Inc.’s request for sanctions, GRANT Dotster
Inc.’s request for costs, and GRANT attorneys’ fees to Pipes and the Middle East
Forum.
I.
Hamad is a teacher in the Austin Independent School District and the
owner of an organization called Palestinian Children’s Welfare Fund
(“PWCF.org”). On April 13, 2006, Hamad filed his original complaint before the
district court, alleging a litany of claims including libel and slander against
David Horowitz and the Center for Popular Culture. Since then, Hamad has
filed five amended complaints. In each one, Hamad added and removed parties
and claims. In his most recent amended complaint, he brought over twenty
claims against approximately fourteen defendants.1
Hamad’s claims stem from several online articles, which he argues
contained false information including allegations that PWCF.org is a militant
Islamic charity with links to terrorism in the West Bank and Gaza. Hamad
contends that the articles were published as a part of a conspiracy to slander and
interfere with his business and his contract with the Austin Independent School
District.
1
It should be noted that a number of the Defendants in Hamad’s final complaint had
been dismissed by earlier district court orders. However, Hamad continued to name these
defendants in subsequent pleadings, including his fifth and final amended complaint.
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No. 07-50165
The district court dismissed Hamad’s final amended petition in its
entirety, holding that each of Hamad’s claims were barred by the relevant
statutes of limitations.2 The district court also concluded that to the extent the
claims were not barred by the statute of limitations, the claims were frivolous
attempts to avoid the statute of limitations applicable to libel claims. Hamad
filed a timely notice of appeal.
II.
This court reviews the dismissal of a case for failure to state a claim under
Rule 12(b)(6) de novo. Frank v. Delta Airlines Inc., 314 F.3d 195, 197 (5th Cir.
2002). Dismissal is proper if the complaint lacks an allegation of an element
that is required to obtain relief. Rios v. City of Del Rio, 444 F.3d 417, 421 (5th
Cir. 2006). To survive dismissal, a plaintiff must allege more than “conclusory
allegations or legal conclusions masquerading as factual conclusions.”
Fernandez-Montes v. Allied Pilots Ass’n., 987 F.2d 278, 284 (5th Cir. 1993).
On appeal, Hamad contends that the district court improperly dismissed
his claims on statute of limitations grounds. Under Texas law, “[a] person must
bring a suit for . . . libel, slander . . . not later than one year after the day the
cause of action accrues.” TEX. CIV. PRAC. & REM. CODE § 16.002(a). Texas courts
have adopted the “single publication rule” in cases involving mass media
publications. Williamson v. New Times, Inc., 980 S.W.2d 706,710 (Tex. App.
1998). Under this rule, “[t]he one-year limitations period begins to run when
publication of the libelous statement is complete, which is ‘the last day of the
mass distribution of copies of the printed matter.’” Nationwide Bi-Weekly
2
The district court also order that Hamad would pay attorneys fees and costs in the
following amounts: $12,915 in fees, plus costs on behalf of Daniel Pipes and the Middle East
Forum; $18,401.93 in fees, plus costs on behalf of the Center for Jewish Community Studies,
and $19,524 in fees, plus costs on behalf of David Horowitz and the Center for the Study of
Popular Culture. Moreover, the district court awarded $1000 each to each defendant “sued and
served” in this case, amounting to $9000.
3
No. 07-50165
Admin., Inc., v. Belo Corp., --- F.3d ----, 2007 WL 4465124, at *3 (5th Cir. Dec.
21, 2007) (internal citation and quotations omitted). Although the Texas
Supreme Court has yet to consider whether the single publication rule should
also apply to internet publications, this Court recently considered this issue. Id.
at *4. In making our Erie guess, we concluded that Texas would apply the single
publication rule, rather than the continuous publication rule, to Internet
publications. Id. at *7. Accordingly, the one-year statute of limitations begins
to run on the first day the publication is posted on the Internet. Id.
Here, Hamad fails to allege a specific date of publication for any of the
publications of which he complains. In his briefs to this Court, he alleges that
the article posted on militantislammonitor.com was published in July 2004,
while the articles posted on frontpagemag.com and discoverthenetwork.org were
published in June 2003. Because Hamad filed his first complaint in April 2006,
even accepting his vague allegations as true, and assuming the dates he has
provided are correct approximations, under the single publication rule, Hamad’s
complaints are barred by the statute of limitations.
In addition to his defamation claims, Hamad also brought various other
tort claims, including libeling and slandering a business name, defamation
through fraud of a business name, interference with a business contract,
conspiracy to interfere with a business contract, tortious interference with a
business contract, disparagement of a business name, and disparagement of
business products. Hamad argues that the district court erred in dismissing his
other tort claims as barred by the relevant statute of limitations. We disagree.
The statute of limitations for the other tort claims listed in Hamad’s
complaints is two years. TEX. CIV. PRAC. & REM. CODE § 16.003(a). However,
Texas courts have applied a one-year statute of limitations to business
disparagement claims where the gravamen of the complaint is injury to the
plaintiff’s reputation because of allegedly defamatory statements. See, e.g.,
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No. 07-50165
Williamson, 980 S.W.2d at 710-11 (“If the damages alleged are primarily
personal and general e.g., injury to personal reputation, humiliation, or mental
anguish-then the cause of action is one for libel or slander . . .”); Hurlbut v. Gulf
Atl. Life Ins. Co., 749 S.W.2d 762, 768 (Tex. 1987). Therefore, Hamad cannot
avoid the one-year statute of limitations applicable to defamation claims by
simply alleging additional causes of action that are subject to a two-year statute
of limitations.
The primary focus of Hamad’s claims is the damage to his personal
reputation. Moreover, all of Hamad’s claims are based upon the same allegedly
false and disparaging comments. Hamad has presented no evidence to show
that his contract with the Austin Independent School District was affected by
these statements, nor has he shown that these statement had any effect on his
work with PCWF.org. Accordingly, we find that the district court did not err in
applying the one-year statute of limitations for libelous and tortious conduct to
Hamad’s remaining tort claims.
Finally, based on the showing made, Dotster, Inc.’s one sentence,
conclusory request for sanctions is DENIED without prejudice to a later filing.
Dotster Inc.’s request for costs is GRANTED.
III.
In an earlier proceeding dated July 23, 2007, this court summarily
dismissed several other parties to this same litigation including Appellees Daniel
Pipes and Middle East Forum. Based on that action, on August 6, 2007, Pipes
and the Middle East Forum moved for attorneys’ fees in the amount of
$32,944.50 under Federal Rule Appellate Procedure 38, which allows for
sanctions if an appeal is frivolous. At the direction of this court, Hamad was
required to file a motion in opposition to the award of attorneys, if he so desired,
by August 20, 2007. He did not do so.
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No. 07-50165
Under Rule 38, “a frivolous appeal is an appeal in which ‘the result is
obvious or the arguments of error are wholly without merit.’” Buck v. United
States, 967 F.2d 1060, 1062 (5th Cir.1992) (citation omitted). In support of their
Rule 38 motion, Pipes and the Middle East Forum have submitted an affidavit
and a detailed bill of costs. Appellees also twice contacted Hamad by mail to
request that he voluntarily dismiss his claim, explaining that the suit was
frivolous. Further, the district court implored Hamad to file a voluntary
dismissal of his lawsuit against all defendants or face sanctions. Instead
Hamad, who has a ten year history of filing frivolous suits in this court,
continued to pursue actions in this suit against myriad parties. Taking into
account the evidence submitted by Appellees in support of their fees as well as
the fact that Hamad was warned against continuing to pursue these claims, all
of which were without merit, we GRANT Daniel Pipes’s and Middle East
Forum’s motion for attorneys’ fees against Hamad in the amount of $32,944.50.
For the foregoing reasons, we AFFIRM the ruling of the district court in
its entirety, DENY Dotster Inc.’s request for sanctions, GRANT Dotster Inc.’s
request for costs, and GRANT Pipes’s and the Middle East Forum’s motion for
attorneys’ fees in the amount of $32,944.50.
6