McDaniel v. Runnels County TX

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-10405
Summary Calendar
BOB W. MCDANIEL, doing business as
Ballinger E.M.S., Inc.; MCDANIEL MEDICAL,
Plaintiffs-Appellants,
versus
RUNNELS COUNTY, TEXAS; ET AL,
Defendants,
WILLIAM POLLAN, D.O.; KAREN RIGHTMIRE, D.O.,
Defendants-Appellees.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 6:98-CV-69-C
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January 18, 2000
Before KING, Chief Judge, and WIENER and BARKSDALE, Circuit
Judges.
PER CURIAM:*
This is an appeal from the district court’s grant of
sanctions under Fed. R. Civ. P. 11 against Bob W. McDaniel, d/b/a
Ballinger E.M.S., Inc. and McDaniel Medical (“McDaniel”), and his
counsel, Gerald K. Fugit (“Fugit”). Defendants-Appellees, Dr.
William Pollan (“Pollan”) and Dr. Karen Rightmire (“Rightmire”),
argue that McDaniel’s and Fugit’s appeal is frivolous and seek
*
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that this opinion should not be published and is not precedent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.
No. 99-10405
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damages and costs in connection with same under Fed. R. App. P.
38.
“[A]n appellate court should apply an abuse-of-discretion
standard in reviewing all aspects of a district court’s Rule 11
determination.” Cooter & Gell v. Hartmarx Corp., 496 U.S. 384,
405 (1990). The review is “necessarily deferential” because the
“‘the district court is better situated than the court of appeals
to marshal the pertinent facts and apply the fact-dependant legal
standard mandated by Rule 11.’” Lulirama Ltd. v. Axcess Broad.
Serv., Inc., 128 F.3d 872, 884 (5th Cir. 1997) (citing Cooter &
Gell, 496 U.S. at 402)).
The district court concluded that McDaniel’s complaint
violated Rule 11(b)(3) because the allegations and factual
contentions against Pollan and Rightmire did not have evidentiary
support. McDaniel’s and Fugit’s appeal, which rests largely on
our opinion in Smith v. Our Lady of the Lake Hosp., Inc., 960
F.2d 439 (5th Cir. 1992), asserts that the imposition of
sanctions was improper because no discovery had taken place in
this case, and as such, the causes of action against Pollan and
Rightmire could not yet be factually developed.
The facts and context of Smith are distinguishable from this
case. In Smith, we noted that the lawyers could cite specific
facts obtained from their prefiling inquiry which supported the
claim they filed. Id. at 445. The discovery process could
therefore be used to prove or disprove the facts learned in their
prefiling inquiry. In this case, Fugit cannot point to even one
fact obtained from his so-called prefiling inquiry which supports
No. 99-10405
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McDaniel’s claims against Pollan and Rightmire or that would
support those claims if discovery were allowed to progress. As
noted by the district court, McDaniel had numerous opportunities
to provide evidentiary support for his claims against Pollan and
Rightmire, but he failed to do so. Accordingly, the district
court did not abuse its discretion in imposing Rule 11 sanctions
against McDaniel and Fugit.
Rule 38 provides that “[i]f a court of appeals shall
determine that an appeal is frivolous, it may, . . . award just
damages and single or double costs to the appellee.” Although
McDaniel’s and Fugit’s chances of success on this appeal were
slim, indeed very slim, we do not find their appeal to be so
devoid of legal merit that it justifies damages and costs under
Rule 38. Campbell v. Teledyne Movible Offshore, Inc., 714 F.2d
429, 431 (5th Cir. 1983); Edwards v. Cass County, Texas, 919 F.2d
273, 276 (5th Cir. 1990). Pollan’s and Rightmire’s motion for
damages and costs under Rule 38 is therefore DENIED.
AFFIRMED.