Frederick Silver v. Toyota Motor Mfg, TX, Inc., et ( 2020 )


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  •      Case: 19-50441      Document: 00515381756         Page: 1    Date Filed: 04/14/2020
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT
    United States Court of Appeals
    Fifth Circuit
    FILED
    No. 19-50441                              April 14, 2020
    Summary Calendar
    Lyle W. Cayce
    Clerk
    FREDERICK O. SILVER,
    Plaintiff-Appellant
    v.
    TOYOTA MOTOR MANUFACTURING, TEXAS, INCORPORATED; WELLS
    FARGO BANK, N.A.,
    Defendants-Appellees
    Appeal from the United States District Court
    for the Western District of Texas
    USDC No. 5:19-CV-422
    Before HIGGINSON, COSTA and OLDHAM, Circuit Judges.
    PER CURIAM: *
    Frederick O. Silver moves for leave to proceed in forma pauperis (IFP) in
    this appeal from the district court’s denial of his motion for costs and expenses
    under 28 U.S.C. § 1447(c). Silver had filed suit in a Texas state court against
    Toyota Motor Manufacturing, Texas, Inc. (Toyota) and Wells Fargo Bank,
    arguing that they wrongfully garnished his wages and incorrectly calculated
    * 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 R. 47.5, the court has determined that this opinion should not
    be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 19-50441     Document: 00515381756      Page: 2    Date Filed: 04/14/2020
    No. 19-50441
    the benefit amounts related to his retirement account and, thus, violated his
    due process rights. Toyota removed the case to federal court based on claim
    preemption under the Employee Retirement Income Security Act (ERISA).
    The district court granted Silver’s motion to remand because ERISA did not
    necessarily preempt his claims.
    Silver argues that Toyota acted maliciously and in bad faith by removing
    the case to federal court, claiming that Toyota relied on ERISA to secure
    removal but did so in order to force Silver to spend money on challenging the
    removal. He does not challenge the conclusion by the district court that, as a
    pro se plaintiff, he was not entitled to attorney’s fees.
    By moving to proceed IFP, Silver is challenging the district court’s
    certification that this appeal was not taken in good faith. See Baugh v. Taylor,
    
    117 F.3d 197
    , 202 (5th Cir. 1997). Our inquiry into an appellant’s good faith
    “is limited to whether the appeal involves legal points arguable on their merits
    (and therefore not frivolous).” Howard v. King, 
    707 F.2d 215
    , 220 (5th Cir.
    1983) (internal quotation marks and citations omitted).
    Silver’s vague and conclusory assertions regarding his claims are
    insufficient to establish any legal points arguable on their merits. See
    id. In regard
    to Silver’s failure to address the district court’s conclusion regarding
    Silver’s ineligibility to claim attorney’s fees, when an appellant fails to identify
    any error in the district court’s analysis, it is the same as if the appellant had
    not appealed that issue. Brinkmann v. Dallas Cnty. Deputy Sheriff Abner, 
    813 F.2d 744
    , 748 (5th Cir. 1987). As Silver’s appeal sets forth no issue of arguable
    merit, it is frivolous. See 
    Howard, 707 F.2d at 219-20
    . Accordingly, Silver’s
    motion for leave to proceed IFP on appeal is denied, and the appeal is dismissed
    as frivolous. See 
    Baugh, 117 F.3d at 202
    & n.24; 5TH CIR. R. 42.2.
    APPEAL DISMISSED; IFP MOTION DENIED.
    2