Leo v. Garmin International, Inc.

FILED
United States Court of Appeals
Tenth Circuit
February 28, 2012
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
FOR THE TENTH CIRCUIT
ALEX HUAQIANG LEO,
Plaintiff-Appellant,
No. 11-3321
v. (D.C. No. 2:09-CV-02139-KHV)
(D. Kan.)
GARMIN INTERNATIONAL, INC.,
Defendant-Appellee.
ORDER AND JUDGMENT *
Before O’BRIEN and McKAY, Circuit Judges, and BRORBY, Senior Circuit
Judge.
Alex Huaqiang Leo, pro se, appeals from the district court’s order that
denied his seven post-judgment orders to recognize material facts and imposed
restrictions on his future filings. We have jurisdiction under 28 U.S.C. § 1291,
and we affirm.
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
This case has a lengthy procedural history. In 2009, Mr. Leo sued Garmin
International, Inc. (Garmin) for age and national origin discrimination. The
district court disposed of the case in favor of Garmin on motions to dismiss and
for summary judgment. In the course of his appeal from those orders, Mr. Leo
sought this court’s permission to file a 70,000 word opening brief, which request
was denied. Mr. Leo renewed his request in a motion seeking to file a 71,431
word document titled “Supporting Analysis and Detailed Evidence.” Once again,
this court denied the request and found that the document was “nothing more than
an attempt to work around” our first order that denied Mr. Leo’s request to file a
70,000 word opening brief. Order, No. 10-3146, at 2 (10th Cir. Oct. 4, 2010).
Just two weeks after this court denied his motions, Mr. Leo filed his second
suit in the Kansas federal district court (No. 10-2495-JTM), in which he used the
aforementioned 70,000 word opening brief/”Supporting Analysis” as his
complaint. The district court concluded that Mr. Leo’s second suit was barred by
the doctrine of res judicata. The court also granted Garmin’s request for
sanctions, and denied several post-judgment motions filed by Mr. Leo. Mr. Leo
appealed to this court. (Nos. 11-3109 & 11-3145).
While his appeals in both suits were pending in this court, in April 2011,
Mr. Leo filed a Fed. R. Civ. P. 60(b) motion in this district court. Then in May,
Mr. Leo filed twelve additional district court motions in which he sought relief
from the court’s order granting summary judgment to Garmin, which order was on
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appeal to this court in No. 10-3146. The district court denied Mr. Leo’s
Rule 60(b) motion on June 21. Mr. Leo appealed. (No. 11-3213).
On July 21, 2011, this court announced its decision in No. 10-3146, Leo v.
Garmin International, Inc., 431 F. App’x 702, 705 (10th Cir. 2011) (Leo I), in
which we affirmed the district court’s orders granting Garmin’s motion to dismiss
and its later-filed motion for summary judgment. On July 26, the district court
denied Mr. Leo’s twelve newly filed motions and his motion to reconsider the
denial of his Rule 60(b) motion. The order states in part: “The Court cautions
plaintiff that any further request to this Court for post-judgment
reconsideration, alteration or modification of the Court’s [May 21, 2010
order and judgment that granted summary judgment to Garmin] may result
in monetary sanctions.” Doc. 267 at 5 (bold typeface in original).
Beginning in late July 2011, and continuing through September, Mr. Leo
filed seven motions in which he asked the district court to recognize hundreds of
so-called facts concerning Garmin’s motion for summary judgment. The motion
for summary judgment had been granted by the district court and affirmed by this
court in the prior appeal. He filed these motions in apparent contravention of the
court’s July 25 order that cautioned him that any further such filings could result
in sanctions.
In an order dated September 26, 2011, the court denied all seven motions
and imposed filing restrictions. With regard to the seven motions, the court found
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that Mr. Leo’s “motions to recognize material facts address the same arguments
which the Court has repeatedly rejected. For reasons set forth in previous rulings,
the Court therefore finds that the motions should be overruled.” R. Vol. 2 at
411-12. As to the filing restrictions, the court considered the relevant factors and
terminated Mr. Leo’s electronic filing privileges. The court also directed the
clerk to submit any conventionally filed motion, document, exhibit, or complaint
to the judge to determine whether or not it might be filed. Last, the court warned
Mr. Leo that “if he seeks to file . . . any document which requests
post-judgment reconsideration, alteration or modification of [the court’s
order or judgment concerning summary judgment], the Court will sanction
[Mr. Leo] a minimum of $500.00 for each violation.” Id. at 414 (bold typeface
in original). Mr. Leo purports to appeal this order.
Regardless of their titles, Mr. Leo’s district court filings were transparent
attempts to once again revisit issues resolved by the district court in its motion to
dismiss and on summary judgment. And his briefs in this court raise the same
issues we decided in Leo, 431 F. App’x 702-05. Because these issues have been
resolved against Mr. Leo, his appeal is frivolous. See Braley v. Campbell,
832 F.2d 1504, 1510 (10th Cir. 1987) (holding that “[a]n appeal is frivolous when
the result is obvious, or the appellant’s arguments of error are wholly without
merit”) (internal quotation marks omitted). Under Fed. R. App. P. 38, this court
can “award just damages, including attorney’s fees . . . if [we] determine[] that
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an appeal is frivolous.” Braley, 832 F.2d at 1510. “[P]ro se litigants are subject
to the same minimum litigation requirements that bind all litigants and counsel
before all federal courts. We emphasize today that we will scrutinize equally all
filings by both pro se and counseled litigants to protect against the abuses
identified in . . . Rule 38.” Kyler v. Everson, 442 F.3d 1251, 1253-54 (10th Cir.
2006). See also Haworth v. Royal, 347 F.3d 1189, 1192 (10th Cir. 2003)
(imposing sanctions under Rule 38 against a pro se litigant for, among other
things, challenging matters that had already been concluded).
The judgment of the district court is AFFIRMED. Garmin’s motion for
sanctions is GRANTED and the case is remanded to the district court to determine
reasonable appellate attorney’s fees. We DENY Garmin’s motion to dismiss the
appeal. We DENY “Appellant’s Motion (1) to Issue an Order to Show Cause
Why Discipline Should Not be Imposed by This Court on Appellee’s Attorney,”
“Appellant’s Motion (2) to Issue an Order to Show Cause Why Discipline Should
Not be Imposed by This Court on Appellee’s Attorney,” and “Appellant’s Petition
for En Banc Hearing.”
Entered for the Court
Wade Brorby
Senior Circuit Judge
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