Jones v. Union Planters

• Court: Court of Appeals for the Fifth Circuit
• Decided: August 6, 1999
• Docket: 98-20563
• Status: Unpublished

Opinion

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT _____________________

No. 98-20563 Summary Calendar _____________________

JOHNNIE JONES; HARVELLA JONES,

Plaintiffs-Appellants,

versus

UNION PLANTERS MORTGAGE CORPORATION (formerly Leader Federal Bank for Savings),

Defendant-Appellee.

Appeal from the United States District Court for the Southern District of Texas (No. H-98-CV-818)

August 4, 1999

Before SMITH, BARKSDALE, and PARKER, Circuit Judges.

PER CURIAM:*

Johnnie and Harvella Jones appeal the district court’s

dismissal of their complaint and the denial of their motions for

entry of a default judgment and reconsideration of the denial of

the motion for entry of a default judgment.

Denial of a motion for a default judgment is reviewed for an

abuse of discretion. See Thomas v. Kippermann, 846 F.2d 1009, 1011

(5th Cir. 1988); Mason, 562 F.2d at 345. In that entry of a

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 R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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

- 1 - default judgment is committed to such discretion, a plaintiff is

not entitled to a default judgment as a matter of right, even when

the defendant is technically in default. See Ganther v. Ingle, 75

F.3d 207, 212 (5th Cir. 1996); Mason v. Lister, 562 F.2d 343, 345

(5th Cir. 1977). In the light of the service of process issues,

the district court did not abuse its discretion in denying the

default judgment motions.

The ruling on a Rule 12(b)(6) motion is reviewed de novo.

Jackson v. City of Beaumont Police Dept., 958 F.2d 616, 618 (5th

Cir. 1992). Although we apply less stringent standards to parties

proceeding pro se than to those represented by counsel and we

likewise liberally construe briefs of pro se litigants, pro se

parties must still brief the issues. Grant v. Cuellar, 59 F.3d

523, 524 (5th Cir. 1995). Because the Joneses do not challenge the

district court’s reasons for the dismissal of their complaint, they

have abandoned the only issue on appeal before this court. See In

the Matter of T-H New Orleans Ltd. Partnership, 116 F.3d 790, 796

(5th Cir. 1997)(issues not briefed are deemed waived); Brinkmann v.

Dallas County Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir.

1987); FED. R. APP. P. 28(a)(6).

The Joneses’ briefs contain abusive, disparaging and

contemptuous references to the district court. Needless to say,

although a pro se appellant’s papers are entitled to a liberal

construction we “simply will not allow ... pro se practice to be a

- 2 - vehicle for abusive documents”. Theriault v. Silber, 579 F.2d 302,

303 (5th Cir. 1978).

The Joneses’ appeal is frivolous and is DISMISSED. See Howard

v. King, 707 F.2d 215, 219-20 (5th Cir. 1983); 5TH CIR. R. 42.2.

Because the Joneses have already been warned regarding filing

frivolous appeals, see Jones v. Smith, No. 97-20403 (5th Cir. May

4, 1998), and because of the aforementioned abusive language,

sanctions of $500 are imposed. The Clerk of this court is not to

accept for filing any civil appeal by either or both of the Joneses

pending payment of this sanction.

APPEAL DISMISSED; SANCTION IMPOSED

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