Burger v. United States

• Court: Court of Appeals for the Fifth Circuit
• Decided: July 29, 2002
• Docket: 01-31412
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-31412 Summary Calendar

VOYD B. BURGER,

Plaintiff-Appellant,

versus

UNITED STATES OF AMERICA,

Defendant-Appellee.

-------------------- Appeal from the United States District Court for the Eastern District of Louisiana USDC No. 01-CV-2357-T -------------------- July 26, 2002

Before DAVIS, BENAVIDES, and CLEMENT, Circuit Judges.

PER CURIAM:*

Voyd B. Burger, proceeding pro se, appeals from the district

court's grant of summary judgment to the United States based on

res judicata and from the district court's imposition of

sanctions. Burger first argues that the district court failed to

give him ten days' notice that it was treating the Government's

motion to dismiss as a motion for summary judgment and that the

Government's motion failed to comply with the local district

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 01-31412 -2-

court rules. Although the Government's motion was labeled

"Motion to Dismiss," it clearly sought dismissal based on FED.

R. CIV. P. 56, and we conclude that the notice provisions of Rules

12(b) and 56 were not violated. See Washington v. Allstate Ins.

Co., 901 F.2d 1281, 1284 (5th Cir. 1990). We also conclude that

there is no error with respect to the district court's

application of the local rules, which we review for plain error

because Burger did not raise the issue in the district court.

Douglass v. United Servs. Auto Ass'n, 79 F.3d 1415, 1428 (5th

Cir. 1996)(en banc); United States v. Calverley, 37 F.3d 160,

162-64 (5th Cir. 1994)(en banc).

Burger next argues that the Government waived the

affirmative defense of res judicata by not raising it in its

answer to the complaint. We conclude that the Government raised

res judicata at a pragmatically sufficient time and that Burger

was not prejudiced in his ability to respond. See Lafreniere

Park Foundation v. Broussard, 221 F.3d 804, 808 (5th Cir. 2000).

We also conclude, contrary to Burger's argument, that all the

elements of res judicata were satisfied. See Ellis v. Amex Life

Ins. Co., 211 F.3d 935, 936 (5th Cir. 2000). To the extent that

Burger argues that his suit in Burger IV did not result in a

decision on the merits because it was dismissed based on statute

of limitations grounds, Burger's argument fails. See Ellis, 211

F.3d at 937; Steve D. Thompson Trucking, Inc. v. Dorsey Trailers,

Inc., 870 F.2d 1044, 1045 (5th Cir. 1989). No. 01-31412 -3-

Burger further argues that the district court erred in

imposing sanctions against him because he does not have the

ability to pay and the award was excessive. We conclude that the

district court did not abuse its discretion in imposing

sanctions. See Cooter & Gell v. Hartmarx Corp., 496 U.S. 384,

405 (1990); Thomas v. Capital Sec. Servs., Inc., 836 F.2d 866,

872 (5th Cir. 1988)(en banc).

AFFIRMED.