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Nixon v. General Motors ( 2023 )


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  • Case: 22-40696        Document: 00516761190             Page: 1      Date Filed: 05/23/2023
United States Court of Appeals
for the Fifth Circuit                                        United States Court of Appeals
Fifth Circuit
____________                                      FILED
May 23, 2023
No. 22-40696
Lyle W. Cayce
Summary Calendar                                  Clerk
____________
Tracy Nixon,
Plaintiff—Appellant,
versus
General Motors Corporation,
Defendant—Appellee.
______________________________
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 2:19-CV-287
______________________________
Before Elrod, Graves, and Ho, Circuit Judges.
Per Curiam: *
Tracy Nixon, proceeding pro se, seeks leave to proceed in forma
pauperis (IFP) to appeal the district court’s dismissal without prejudice of
his private civil action alleging patent interference and copyright
infringement. The district court dismissed the proceeding because Nixon
failed to show that he had properly served the defendant. By moving in this
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 22-40696       Document: 00516761190         Page: 2    Date Filed: 05/23/2023
court to proceed IFP, Nixon is challenging the district court’s certification
that any appeal would not be taken in good faith because he had not shown
that he will present a nonfrivolous appellate issue. See Baugh v. Taylor,
    117 F.3d 197
    , 202 (5th Cir. 1997); Carson v. Polley,
    689 F.2d 562
    , 586 (5th Cir.
1982).
Before this court, Nixon argues that he properly served General
Motors through the Texas Secretary of State pursuant to the Texas long-arm
statute. See Tex. Civ. Prac. & Rem. Code § 17.044(a). He did not
show that he met the conditions necessary for service pursuant to the Texas
statute. See Fed. R. Civ. P. 4(e)(1), (h)(1); § 17.044(a); Whitney v. L & L
Realty Corp.,
    500 S.W.3d 94
    , 95 (Tex. 1973). Although Nixon maintains that
the district court should have granted his request to allow substituted service
under the long-arm statute, he cites no authority for the proposition that a
court may permit such service unless the statutory conditions are met. He
has not presented a nonfrivolous issue with respect to the dismissal without
prejudice for failure to serve the General Motors. See Baugh,
    117 F.3d at 202
    ;
Lindsey v. United States R.R. Ret. Bd.,
    101 F.3d 444
    , 445 (5th Cir. 1996).
In addition, Nixon alleges that the district court should have recused
itself from the proceedings because the judge owned stock in a company that
entered a business agreement with General Motors. He has arguably failed
to brief this issue before this court. See Yohey v. Collins,
    985 F.2d 222
    , 224-
25 (5th Cir. 1993). Even if the issue is sufficiently briefed, Nixon has not
shown that he will present a nonfrivolous issue regarding the district court’s
denial of the motion for recusal. See Sensley v. Albritton,
    385 F.3d 591
    , 598
(5th Cir. 2004); Baugh,
    117 F.3d at 202
    ;
    28 U.S.C. § 455
    (b)(4), (d)(4).
The appeal is without arguable merit and is thus frivolous. See Howard
v. King,
    707 F.2d 215
    , 220 (5th Cir. 1983). Accordingly, Nixon’s motion to
Case: 22-40696    Document: 00516761190       Page: 3   Date Filed: 05/23/2023
proceed IFP is DENIED, and the appeal is DISMISSED as frivolous. See
Baugh,
    117 F.3d at 
    202 n.24; 5th Cir. R. 42.2.