In Re: Robinson

United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
For the Fifth Circuit April 21, 2003
Charles R. Fulbruge III
No. 02-40895 Clerk
Summary Calendar
HIBERNIA NATIONAL BANK,
Plaintiff/Appellee,
VERSUS
ROBERT GRAY ROBINSON,
Defendant/Cross-Claimant/Appellant,
VERSUS
WALKER D WEATHERS, Individually and as partner in a law firm;
BECKY J BRYANT, Individually and as employee of a law firm; WADE M
WEATHERS, As partner in law firm; WEATHERS & WEATHERS; CHEROKEE
COUNTY TEXAS; STATE BAR OF TEXAS; JOHN CORNYN,
Cross-Defendants/Appellees.
No. 02-40373
ROBERT GRAY ROBINSON,
Plaintiff/Appellant,
VERSUS
WILLIAM THOMAS GOECKING; JOHN CORNYN, TEXAS ATTORNEY GENERAL;
DAWN MILLER; STATE BAR OF TEXAS,
Defendants/Appellees.
Appeals from the United States District Court
for the Eastern District of Texas
(01-MC-20)
Before JONES, DUHÉ, and CLEMENT, Circuit Judges.
PER CURIAM:1
After some difficulty, we discern the following from the
briefing and the record. Appellant Robert Robinson (“Robinson”)
and his wife, Becky Robinson, who now uses the name Becky Bryant
(“Bryant”), divorced in 1999. Bryant, a legal assistant, was
represented in the divorce by her employer, Walker Weathers
(“Weathers”). Under the divorce agreement, the couple had joint
custody of their one child, a son. The relationship between
Robinson and Bryant became acrimonious when Robinson came to
believe that Bryant was having an affair with Weathers. At one
point, Bryant secretly recorded a telephone conversation with
Robinson in which Robinson allegedly blackmailed her.
Bryant petitioned the state court asking to be appointed the
sole managing conservator of her and Robinson’s son. Bryant asked
also for a restraining order against Robinson and damages for
slander and libel. At a hearing scheduled for consideration of a
1
Pursuant to 5th Circuit Rule 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that this opinion should not be published and is not precedent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 Circuit
Rule 47.5.4.
2
temporary restraining order, Bryant offered the tape recording as
evidence of Robinson’s alleged blackmail. The judge overruled
Robinson’s objections that the tape had been altered. At a second
hearing, also scheduled for consideration of a temporary
restraining order, the judge decided to issue a permanent
injunction against Robinson. Robinson appealed and eventually won
dissolution of the restraining order.
Interspersed with these events were complaints by Robinson to
the Disciplinary Counsel of the Texas Bar Association regarding
various incidents of alleged misconduct by Weathers and other
attorneys. None of the complaints resulted in a finding by the
Disciplinary Counsel that misconduct had occurred or that
discipline was appropriate.
Before the state court appeal was resolved, Robinson
petitioned the federal district court under Federal Rule of Civil
Procedure 27(a) for an order to perpetuate testimony. Robinson
sought to preserve (1) the original tape of the conversation
recorded by Bryant, (2) records and videotapes of state bar
proceedings dealing with his complaints, and (3) recordings of the
restraining order hearings. Robinson alleged that he intended to
sue for malicious prosecution and civil rights conspiracy but was
unable to file suit until the state appeal terminated in his favor.
The district court determined that Rule 27 relief was not
appropriate and denied the petition.
We will discuss the two cases consolidated for this appeal
3
separately.
I.
In the first case we are asked to review the district court’s
denial of the Rule 27 petition.2 Rule 27 provides for perpetuation
of testimony when a petitioner “expects to be a party to an action
cognizable in a court of the United States but is presently unable
to bring it....” Fed. R. Civ. P. 27(a); Dresser Industries, Inc. v.
United States, 596 F.2d 1231, 1238 (5th Cir. 1979).3 The ruling on
a motion to perpetuate is an appealable final order. 28 U.S.C. §
1291; Shore v. Acands, 644 F.2d 386, 388 (1981). We review for
abuse of discretion. Id. “Rule 27 properly applies only in that
special category of cases where it is necessary to prevent
testimony from being lost,” Ash v. Cort, 512 F.2d 909, 911 (3d
Cir. 1975), and where the “court is satisfied that perpetuation of
the testimony may prevent a failure or delay of justice....” Fed.
R. Civ. P. 27(a)(3).
2
Though Robinson provided notice of appeal only with respect
to the denial of his Rule 27 petition, his brief presents arguments
on other issues. When an appellant "'chooses to designate specific
determinations in his notice of appeal--rather than simply
appealing from the entire judgment--only the specified issues may
be raised on appeal." Pope v. MCI Telecommunications Corp., 937
F.2d 258, 266 (5th Cir. 1991)(citations omitted). Our review is
confined to the issue noticed on appeal—the district court’s denial
of Robinson’s Rule 27(a) petition.
3
The Rule 27 petition applies also to the inspection of
documents and things. Fed R. Civ. P. 27(a)(3); See also
Application of Deiulemar Compagnia Di Navigazione S.p.A. v. M/V
Allegra, 198 F.3d 473, 478 (4th Cir. 1999); Martin v. Reynolds
Metals Corp., 297 F.2d 49, 56 (9th Cir. 1961).
4
The cited impediment to Robinson’s filing suit in the federal
district court was the pendency of his state court appeal. That
appeal was terminated in Robinson’s favor on February 28, 2002,
seventeen days after entry of the district court’s denial of his
Rule 27 petition. Thereafter, nothing prevented Robinson from
filing his federal suit and using discovery in that proceeding to
obtain the evidence he seeks. The ruling on a petition to
perpetuate testimony is one of “temporary application. The
petitioner is free to seek discovery once the anticipated action
has been filed.” In re Eisenberg, 654 F.2d 1107, 1112 (1981).
Substantial time has passed since the state court of appeals
dissolved the permanent restraining order issued by the trial
court, thus removing the impediment cited by Robinson in his Rule
27 petition; for a year now, Robinson has been free to file suit
and take advantage of the discovery rules, and the Rule 27 order
has been unnecessary. We dismiss Robinson’s appeal of this issue
as moot.
II.
The second case is only tangentially related to the facts
discussed above. It involves an application by Hibernia National
Bank to foreclose on a home equity loan taken out by Robinson and
Bryant while still married. Hibernia petitioned under Texas Rule
of Civil Procedure 736 for an order of foreclosure (“Rule 736
application”). In response to Hibernia’s Rule 736 application,
Robinson sued several third party defendants, including his now ex-
5
wife, and removed the case to federal court. The district court
remanded the case to state court, concluding (1) that Robinson’s
notice of removal was untimely, and (2) that the court was without
jurisdiction because Robinson’s petition presented no federal
question. Robinson appeals the order of remand.4
4
Though the single issue named in Robinson’s notice of appeal
of this case is the remand, Robinson’s brief again presents
arguments on other issues, namely the district court’s denials of
his motion for recusal and his petition to perpetuate testimony
pending appeal under Federal Rule of Civil Procedure 27(b). For
the reason cited in note 2, supra we decline to review the district
court’s denial of Robinson’s motion for recusal, an issue for
which Robinson provided no notice.
The ruling on Robinson’s Rule 27(b) petition is an independently
appealable final order, see Ash v. Cort, 512 F.2d 909, 910 (3d Cir.
1975), from which Robinson failed to take an appeal. Robinson
alleges that he was told by an appellate clerk that no notice of
appeal was necessary to obtain review after the district court
denied his Rule 27(b) petition. The nature of the Rule 27 order as
independently appealable, as well as a reading of Federal Rule of
Appellate Procedure 3 and its application in Pope v. MCI, 937 F.2d
258, discussed supra at note 2, demonstrates the patent
incorrectness of this assertion. Robinson as a pro se litigant is
not “exempt . . . from compliance with relevant rules of procedural
and substantive law.” Birl v. Estelle, 660 F.2d 592, 593 (5th Cir.
1981). Robinson is entitled to no greater rights as a pro se
litigant than would be a litigant represented by a lawyer. Id. Even
if the error attributed to the clerk by Robinson were within the
scope of a court clerk’s duties, such as failure to provide notice
of the entry of a judgment, Robinson would not be excused from
failure to appeal as a result of the error. See Wilson v. Atwood
Group, 725 F.2d 255 (1984). Neither is Robinson entitled to rely
on erroneous legal advice allegedly received from a court clerk as
an excuse for his failure to appeal.
In an abundance of caution, we note that even if Robinson had
appealed the denial of his Rule 27(b) petition, the record supports
a conclusion of no abuse of discretion by the district court. The
Rule 27(b) petitioner must demonstrate that the proposed action
would be cognizable in a court of the United States. Dresser
Industries, 596 F.2d 1231, 1238 (5th Cir. 1979). The district
court determined that it had no jurisdiction over the case. It
would not be an abuse of discretion to deny the Rule 27 petition
for lack of jurisdiction when the underlying action is not one
6
The defendant facing a motion of remand has the burden to
establish the existence of federal jurisdiction. Winters v.
Diamond Shamrock Chemical Co., 149 F.3d 387, 397 (Tex. 1998).
Appellate review of remand orders is prohibited by 28 U.S.C. §
1447(d); however, § 1447(d) makes an exception for cases removed
pursuant to 28 U.S.C. § 1443 for alleged civil rights violations.5
See, e.g., Whitaker v. Carney, 778 F.2d 216 (5th Cir. 1985); State
of Texas v. Gulf Water Benefaction Co. 679 F.2d 85, 86 (5th. Cir
1982). Robinson’s notice of removal expressly relied on § 1443;
therefore, we review the remand under the exception provided in the
second clause of § 1447(d).
To gain removal under § 1443, “the defendant must show both
that (1) the right allegedly denied it arises under a federal law
providing for specific rights stated in terms of racial equality;
and (2) the removal petitioner is denied or cannot enforce the
specified federal rights in the state courts due to some formal
expression of state law.” Id. at 86 (citing Johnson v. Mississippi,
421 U.S. 213, 219, 95 S. Ct. 1591, 1595, 44 L. Ed.2d 121, 128
(1975)). Though Robinson cites § 1443 and makes general statements
about the denial of civil rights based on socioeconomic status, he
fails to allege that his rights under a statute protecting racial
cognizable in federal court.
5
Because we decide that removal under § 1443 was improper, we
need not decide whether an otherwise proper removal under § 1443
would nonetheless be defeated by the district court’s untimeliness
determination.
7
equality are denied by the law providing for Hibernia’s application
for foreclosure. Therefore, removal under § 1443 was improper, and
we affirm the district court’s remand of the case to state court.
III.
We dismiss Robinson’s appeal of case number 02-40373 as moot.
Hibernia’s motion to dismiss the appeal of case number 02-40895 for
lack of jurisdiction is denied. We affirm the district court’s
remand of case number 02-40895 to state court.
DISMISSED in part; AFFIRMED in part.
8