Miller v. First National Bank ( 2002 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-41343
Summary Calendar
THOMAS V. MILLER,
Plaintiff-Appellant,
versus
FIRST NATIONAL BANK OF VAN ALSTYNE; VAN ALSTYNE FINANCIAL
CORP.; ROBERT H. HYNDS; TOHNIE HYNDS; J. DON GORDON,
Defendants-Appellees.
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Appeal from the United States District Court
for the Eastern District of Texas
(4:01-CV-129)
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September 24, 2002
Before DAVIS, WIENER, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
Plaintiff-Appellant Thomas Miller appeals from the dismissal
of his Racketeer Influenced and Corrupt Organizations Act (RICO)
claims as time-barred and from the denial of his postjudgment
motion, in which he alleged for the first time that a June 2001
discovery of bank records previously concealed by the defendants
precluded a determination that his claims were time-barred.
*
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this opinion should not be published and is not precedent except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.
The allegations contained in Miller’s prior lawsuits establish
that he was aware of the alleged fraudulent concealment more than
four years prior to the April 2001 filing of the instant RICO
claims, negating any entitlement that he might otherwise have had
to a tolling of the limitations period pursuant to the fraudulent
concealment doctrine. See Agency Holding Corp. v. Malley-Duff &
Assocs., Inc., 483 U.S. 143, 156 (1987) (civil RICO actions subject
to a four-year limitations period); Love v. Nat’l Med. Ent., 230
F.3d 765, 779 (5th Cir. 2000) (under fraudulent concealment
doctrine, limitations period is tolled until the plaintiff
discovers, or with reasonable diligence should have discovered, the
concealed fraud).
The district court did not abuse its discretion in denying
Miller’s postjudgment motion. His allegation that the newly
discovered records substantiated his RICO claims is not supported
by anything other than his self-serving affidavit, in which he made
only conclusional arguments that these newly discovered documents
entitled him to relief under the RICO Act. See S. Constructors
Group, Inc. v. Dynalectric Co., 2 F.3d 606, 611 (5th Cir. 1993)
(denial of Federal Rule of Civil Procedure 59 motions reviewed for
abuse of discretion).
Miller’s appeal is without arguable merit and therefore is
dismissed as frivolous. See 5TH CIR. R. 42.2; Howard v. King, 707
F.2d 215, 219-20 (5th Cir. 1983). We have previously sanctioned
Miller and have warned him that additional frivolous suits or
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appeals filed by him or on his behalf would invite further
sanctions. See Miller v. First Nat’l Bank of Van Alstyne, Texas,
No. 00-40196 (5th Cir. April 2, 2001) (unpublished). As Miller has
refused to heed that warning, filing yet another frivolous lawsuit
and appeal, he is sanctioned $100. Until this sanction is paid in
full, the clerk of this court shall return to Miller unfiled any
submission that he might attempt to file. Payment of sanctions
shall be made to this court. Miller is cautioned that any further
violation of our previous warnings shall result in harsher
sanctions.
APPEAL DISMISSED AS FRIVOLOUS; SANCTION IMPOSED; WARNINGS
REITERATED.
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