Richardson v. Albertson's, Inc.

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS SEP 13 2000
TENTH CIRCUIT PATRICK FISHER
Clerk
ROBERT RICHARDSON,
Plaintiff-Appellant,
v.
ALBERTSON’S, INC., a Delaware
corporation; JAMES A.
No. 00-1215
HAUTZINGER; PAT HILDEBRAND,
(D.C. No. 99-B-1846)
(Colorado)
Defendants-Appellees,
and
WILLIAM WINTERS; FRANK S.
FELDMAN,
Defendants.
ORDER AND JUDGMENT *
Before SEYMOUR, Chief Judge, EBEL, and BRISCOE, Circuit Judges.
After examining appellant’s brief and the 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) and 10th Cir. R.
34.1(G). The case is therefore submitted without oral argument. This order and
judgment is not binding precedent, except under the doctrines of law of the case,
res judicata, or collateral estoppel. The court generally disfavors the citation of
orders and judgments; nevertheless, an order and judgment may be cited under the
terms and conditions of 10th Cir. R. 36.3.
Robert Richardson brought suit against Albertson’s Inc., Albertson’s
attorney in prior litigation, and several Albertson’s employees, claiming that the
individual defendants committed perjury in that litigation in violation of 18
U.S.C. § 1623. The district court adopted the magistrate’s report and
recommendation that the action be dismissed under Fed. R. Civ. Pro. 12(b)(6) for
failure to state a claim for relief, and that sanctions be imposed upon Mr.
Richardson for filing a repetitious, baseless and vexatious lawsuit. Mr.
Richardson appeals the dismissal 1 and we affirm.
This is the fifth lawsuit filed by Mr. Richardson arising from the
termination of his employment with Albertson’s in 1992. See Richardson v.
Albertson’s Inc., No. 98-1198, 1999 WL 2502, at **1 n.2 (10th Cir. Jan. 5, 1999)
(describing litigation history). In the most recent of these cases Mr. Richardson
asserted, as he does here, that the Albertson’s attorney and Albertson’s employees
perjured themselves during the original litigation. In affirming the dismissal of
the perjury action for failure to state a claim, we stated that “Mr. Richardson has
no civil action for perjury, because, in the absence of a statute to the contrary, an
unsuccessful litigant may not maintain a civil action against a person who
allegedly committed perjury.” Id. (citing Advantor Capital Corp. v. Yeary, 136
1
Mr. Richardson does not appeal the sanctions imposed by the district
court. In any event, our discussion makes clear that the sanctions imposed were
clearly justified.
-2-
F.3d 1259, 1263 (10th Cir. 1998). Despite this clear statement of the applicable
law, Mr. Richardson filed the instant suit in which he again attempts to base a
civil claim on allegations of perjury. 2 Accordingly we again affirm the dismissal
for failure state a claim and repeat our holding that Mr. Richardson has no civil
action for perjury under these circumstances.
Defendants have moved this court for sanctions pursuant to Fed. R. App. P.
38, contending that this appeal is frivolous. “An appellate court may assess just
damages, including attorneys’ fees and single or double costs, when an appeal is
frivolous or brought for purposes of delay. An appeal is frivolous when the result
is obvious, or the appellant’s arguments of error are wholly without merit.”
Olson v. Coleman, 997 F.2d 726, 728 (10th Cir. 1993) (citations and internal
quotations omitted). When we affirmed Mr. Richardson’s most recent appeal, we
emphasized to him our power to impose sanctions for the filing of a frivolous
appeal, and we warned Mr. Richardson “that any additional frivolous and
repetitious filings may result in the imposition of sanctions.” Richardson, 1999
WL 2502, at **1. We agree with defendants that the present appeal, which fails
to present any reasonable argument that the district court erred in its disposition,
2
We note that in his last lawsuit Mr. Richardson asserted that the alleged
perjury violated 28 U.S.C. § 1746, a civil perjury statute, and in this action he
alleges that defendants violated 18 U.S.C. § 1623, a criminal perjury statute. This
difference, however, makes no difference because our holding plainly applies to
any alleged perjury.
-3-
is frivolous. We point out in particular Mr. Richardson’s intransigent disregard
of our holding in the prior appeal. Accordingly, we grant defendants’ motion to
impose as sanctions double costs and attorneys’ fees. Defendants are allowed
fourteen days to file an itemized and verified statement of their costs with the
clerk of the court of appeals so that we may determine the amount to be awarded
as double costs. Mr. Richardson will have seven days in which to contest the
amount requested. We remand the case to the district court for a determination of
attorneys’ fees. The district court shall modify its judgment accordingly. See
generally Olson, 997 F.2d at 728 (setting out procedure for imposing sanctions on
appeal).
The judgment of the district court is AFFIRMED, defendants’ motion for
sanctions is GRANTED, and the case is remanded to the district court for a
determination of attorneys’ fees.
ENTERED FOR THE COURT
Stephanie K. Seymour
Chief Judge
-4-