Cilauro v. Thielsch Engineering, Inc.

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT January 18, 2005
_____________________
Charles R. Fulbruge III
No. 04-50602 Clerk
Summary Calendar
_____________________
SANTO CILAURO,
Plaintiff - Appellant,
versus
THIELSCH ENGINEERING, INC.,
Defendant - Appellee.
_________________________________________________________________
Appeal from the United States District Court
for the Western District of Texas
USDC No. 1:03-CV-157-SS
_________________________________________________________________
Before REAVLEY, JOLLY, and HIGGINBOTHAM, Circuit Judges.
PER CURIAM:*
Santo Cilauro appeals the district court’s denial of his Rule
60(b) motion for relief from the summary judgment dismissing his
claims against his former employer, Thielsch Engineering, Inc.,
under the Americans with Disabilities Act (“ADA”) and Texas law.
In his complaint, Cilauro alleged that he resigned because Thielsch
failed to continue to provide insurance coverage for medication
used to treat his cluster headaches.
The district court granted summary judgment for Thielsch on
the ADA claim because Cilauro had failed to exhaust his
*
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this opinion should not be published and is not precedent except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.
administrative remedies by filing a disability discrimination
charge with the Equal Employment Opportunity Commission and/or with
the Texas Commission on Human Rights. The court declined to
exercise supplemental jurisdiction over Cilauro’s state law claims
and dismissed those claims without prejudice.
Final judgment was entered on March 24, 2004. On April 26,
Cilauro filed a motion for relief from the judgment pursuant to
Federal Rule of Civil Procedure 60(b). In that motion, he alleged
that, due to a language difficulty and his misunderstanding of his
counsel’s request, he had filled out an application for
administrative relief from the Texas Commission on Human Rights,
but failed to follow up on the investigation; that upon checking
with the Commission in April 2004, he found that his original
complaint had never been assigned to a case worker and referred for
investigation; that his counsel was unaware that the “process” had
not been ongoing, and/or completed; and that he had subsequently
filed an additional application for administrative relief with the
Texas Human Rights Commission and the EEOC and had been given a
right to sue letter. The right to sue letter, dated April 20,
2004, was attached to the Rule 60(b) motion. The letter indicates
that the agency closed its file on the charge because the charge
“was not filed within the time limits required by the law.”
The district court denied Rule 60(b) relief on the ground that
Cilauro had not established good cause for reopening the case
because the information recited in the motion for relief was easily
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obtainable at any time following the defendant’s filing of its
motion for summary judgment, and certainly within thirty days of
the entry of final judgment. Cilauro filed a timely notice of
appeal from the order denying his Rule 60(b) motion.
We will not reverse a district court’s decision to deny relief
under Rule 60(b) “unless the denial is so unwarranted as to
constitute an abuse of discretion.” Bludworth Bond Shipyard, Inc.
v. M/V Caribbean Wind, 841 F.2d 646, 649 (5th Cir. 1988) (internal
quotation marks and citation omitted). Cilauro’s brief does not
point to anything in the record that suggests an abuse of the
district court’s discretion. Although the brief lists three
issues, two of those issues relate to the underlying summary
judgment. These two issues are not before us in this appeal
because the Rule 60(b) motion was filed more than 30 days after the
entry of final judgment. The third issue listed -- whether the
district court abused its discretion by not reinstating the case
after Cilauro proved that he had a right to sue letter -- is not
properly or adequately briefed.
Federal Rule of Appellate Procedure 28(a), which is cited
repeatedly in Cilauro’s brief, sets forth the requirements for an
appellant’s brief. This court may refuse to consider the merits of
a claim where the appellant’s brief lacks “logical argumentation or
citation to authority.” Alameda Films SA de CV v. Authors Rights
Restoration Corp. Inc., 331 F.3d 472, 483 (5th Cir. 2003) (internal
quotation marks and citation omitted). In the section of the brief
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headed “Procedural facts from the Record,” Cilauro argues that the
only reason the district court refused to reopen the case “was his
obvious personal animus for Cilauro’s counsel reflected in his
order concerning the two extensions he granted Cilauro’s counsel.”
Although no record citations for those orders are provided, our
review of them reveals no personal animus by the district court
toward Cilauro’s counsel.
The only other argument relevant to the issue before us is in
the section of the brief entitled “Summary of Argument”. That
argument asserts, in conclusory fashion, that “[u]nder our law it
is this Court’s duty to reverse situations where there is apparent
on the record judicial abuse of discretion of a Court lower to this
Court in the system over which this Court of Appeals has
jurisdiction.” To the extent that this statement is intended as an
argument, it is frivolous and does not provide any basis for
reversal of the district court’s judgment.
The remainder of Cilauro’s brief consists of irrelevant
pontification about “the purpose of law”, “divisions within the
body of law”, “the role of the judiciary”, and “procedural form
over constitutional and legal substance”. Cilauro’s counsel has
caused this court and the opposing party to waste time and
resources by filing a brief that does not raise any colorable
challenge to the district court’s judgment. Cilauro’s counsel is,
therefore, warned that if he ever files another such frivolous
brief in this court, he will surely be subject to sanctions,
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including double costs under Federal Rule of Appellate Procedure
38.
The appeal is frivolous and is, therefore,
DISMISSED.
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