Richardson v. Albertson's, Inc.

• Court: Court of Appeals for the Tenth Circuit
• Decided: September 13, 2000
• Docket: 00-1215
• Status: Unpublished

Opinion

F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS SEP 13 2000

TENTH CIRCUIT PATRICK FISHER Clerk

ROBERT RICHARDSON,

Plaintiff-Appellant,

v.

ALBERTSON’S, INC., a Delaware corporation; JAMES A. No. 00-1215 HAUTZINGER; PAT HILDEBRAND, (D.C. No. 99-B-1846) (Colorado) Defendants-Appellees,

and

WILLIAM WINTERS; FRANK S. FELDMAN,

Defendants.

ORDER AND JUDGMENT *

Before SEYMOUR, Chief Judge, EBEL, and BRISCOE, Circuit Judges.

After examining appellant’s brief and the appellate record, this panel has *

determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). The case is therefore submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, or collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. Robert Richardson brought suit against Albertson’s Inc., Albertson’s

attorney in prior litigation, and several Albertson’s employees, claiming that the

individual defendants committed perjury in that litigation in violation of 18

U.S.C. § 1623. The district court adopted the magistrate’s report and

recommendation that the action be dismissed under Fed. R. Civ. Pro. 12(b)(6) for

failure to state a claim for relief, and that sanctions be imposed upon Mr.

Richardson for filing a repetitious, baseless and vexatious lawsuit. Mr.

Richardson appeals the dismissal 1 and we affirm.

This is the fifth lawsuit filed by Mr. Richardson arising from the

termination of his employment with Albertson’s in 1992. See Richardson v.

Albertson’s Inc., No. 98-1198, 1999 WL 2502, at **1 n.2 (10th Cir. Jan. 5, 1999)

(describing litigation history). In the most recent of these cases Mr. Richardson

asserted, as he does here, that the Albertson’s attorney and Albertson’s employees

perjured themselves during the original litigation. In affirming the dismissal of

the perjury action for failure to state a claim, we stated that “Mr. Richardson has

no civil action for perjury, because, in the absence of a statute to the contrary, an

unsuccessful litigant may not maintain a civil action against a person who

allegedly committed perjury.” Id. (citing Advantor Capital Corp. v. Yeary, 136

1 Mr. Richardson does not appeal the sanctions imposed by the district court. In any event, our discussion makes clear that the sanctions imposed were clearly justified.

-2- F.3d 1259, 1263 (10th Cir. 1998). Despite this clear statement of the applicable

law, Mr. Richardson filed the instant suit in which he again attempts to base a

civil claim on allegations of perjury. 2 Accordingly we again affirm the dismissal

for failure state a claim and repeat our holding that Mr. Richardson has no civil

action for perjury under these circumstances.

Defendants have moved this court for sanctions pursuant to Fed. R. App. P.

38, contending that this appeal is frivolous. “An appellate court may assess just

damages, including attorneys’ fees and single or double costs, when an appeal is

frivolous or brought for purposes of delay. An appeal is frivolous when the result

is obvious, or the appellant’s arguments of error are wholly without merit.”

Olson v. Coleman, 997 F.2d 726, 728 (10th Cir. 1993) (citations and internal

quotations omitted). When we affirmed Mr. Richardson’s most recent appeal, we

emphasized to him our power to impose sanctions for the filing of a frivolous

appeal, and we warned Mr. Richardson “that any additional frivolous and

repetitious filings may result in the imposition of sanctions.” Richardson, 1999

WL 2502, at **1. We agree with defendants that the present appeal, which fails

to present any reasonable argument that the district court erred in its disposition,

2 We note that in his last lawsuit Mr. Richardson asserted that the alleged perjury violated 28 U.S.C. § 1746, a civil perjury statute, and in this action he alleges that defendants violated 18 U.S.C. § 1623, a criminal perjury statute. This difference, however, makes no difference because our holding plainly applies to any alleged perjury.

-3- is frivolous. We point out in particular Mr. Richardson’s intransigent disregard

of our holding in the prior appeal. Accordingly, we grant defendants’ motion to

impose as sanctions double costs and attorneys’ fees. Defendants are allowed

fourteen days to file an itemized and verified statement of their costs with the

clerk of the court of appeals so that we may determine the amount to be awarded

as double costs. Mr. Richardson will have seven days in which to contest the

amount requested. We remand the case to the district court for a determination of

attorneys’ fees. The district court shall modify its judgment accordingly. See

generally Olson, 997 F.2d at 728 (setting out procedure for imposing sanctions on

appeal).

The judgment of the district court is AFFIRMED, defendants’ motion for

sanctions is GRANTED, and the case is remanded to the district court for a

determination of attorneys’ fees.

ENTERED FOR THE COURT

Stephanie K. Seymour Chief Judge

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