IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
_______________________________________
No. 99-50050 Summary Calendar _______________________________________
YONOK WARSON; ET AL,
Plaintiffs,
YONOK WARSON and WILLIAM K. KIM,
Plaintiffs-Appellants,
versus
THE WALT DISNEY CO.,INC., ROBERT S. OGDEN, JR., TRADEMARK FACTS, INC., JOHN M. CONE, SHIREEN I. BACON, HILDA C. GALVAN, STRASBURGER & PRICE, L.L.P., CHRISTOPHER J. CROSS, KENNETH M. BATES, and BATES INVESTIGATION, INC.,
Defendants-Appellees.
_________________________________________________
Appeal from the United States District Court for the Western District of Texas (97-CV-229) _________________________________________________
August 26, 1999
Before POLITZ, WIENER, and BENAVIDES, Circuit Judges.
Per Curiam*
This is an appeal from the dismissal of a suit seeking
recovery on several theories grounded in inconvenience and stress
associated with defending (successfully) a prior copyright and
* 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 R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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 trademark action in which Defendant-Appellee The Walt Disney
Company, Inc. (“Disney”) sued Plaintiffs-Appellants Yonok Warson,
William Kim (“Warson” and “Kim” or, collectively, the
“Plaintiffs”), and others for selling counterfeit copies of
Disney’s merchandise. In a bench trial of the earlier suit, the
district court held that Disney had failed to prove that the
Plaintiffs and others had sold any counterfeit merchandise.1
Agreeing with all dispositions of the district court in this case,
we affirm.
I.
Facts and Proceedings
Warson and Kim brought the instant action against Disney and
other Defendants-Appellees (entities and individuals involved in
the earlier lawsuit as attorneys, investigators, and the like)
(“Disney et al.”), seeking recovery under 42 U.S.C. §§ 1981, 1982,
1983, and 1985. They also sought recovery for malicious
prosecution, abuse of process, negligence and gross negligence,
filing of frivolous lawsuits, and invasion of privacy. The
district court in the instant lawsuit granted summary judgment to
Disney et al. on all claims. The Plaintiffs ask us to reverse that
summary judgment and also challenge the district court’s denial of
their Motions for Reconsideration, under Fed. R. Civ. P. 59(e), and
for Relief from Order, under Fed. R. Civ. P. 60(b).
II.
1 The court awarded costs and attorney fees to the defendants in that underlying action; however, Warson and Kim appeared pro se in the first lawsuit and thus did not recover attorney fees.
2 Analysis
As a threshold matter, we affirm the district court’s
statement of the appropriate standard for considering a motion for
summary judgment. The movant has the initial burden of showing the
absence of a genuine issue of material fact, and once the movant
satisfies that burden, the non-movant must point to affirmative
evidence, beyond the pleadings, to establish a genuine issue for
trial.2 We review the district court’s grant of summary judgment
de novo.
As for Warson and Kim’s constitutional claims, we find no
genuine issue of material fact. To establish a section 1981
violation, a plaintiff must show that (1) he is a member of a
racial minority, and (2) the defendant (a) intentionally
discriminated against the plaintiff on the basis of race, and (b)
interfered with one of the activities enumerated in the statute,
here, contract rights.3 The district court based its ruling on the
absence of evidence of interference with contract. We never reach
the question whether Warson and Kim’s proffered evidence4 would
create a genuine issue of material fact as to contract
interference: Those claims fall because the Plaintiffs failed to
2 Celotex Corp. v. Catrett, 477 U.S. 317, 322-24 (1986). 3 Green v. State Bar of Tex., 27 F.3d 1083, 1086 (5th Cir. 1994). 4 In arguing that a genuine issue of fact exists, Warson and Kim point to their own deposition testimony. Warson initially said she did not understand the question and then denied any interference. Kim asserted that his ability to enter contracts was impaired by the underlying lawsuit and described routine business interruptions associated with defending the suit.
3 present any evidence that would create a genuine issue of fact on
the intent-to-discriminate element. The record does indicate that
Warson and Kim are Korean Americans but does not contain any
evidence, either direct or circumstantial, of Disney’s
discriminatory intent. The Plaintiffs repeatedly allege both in
their pretrial pleadings and in their appellate brief, that Disney
“singled them out” because they were foreign, but they provide no
evidence creating an issue of fact. More importantly, we cannot
even begin to contemplate the policy implications of entertaining
a constitutional case whenever legal process interferes with a
litigant’s business. We reject the suggestion that the ambit of
section 1981 is broad enough to encompass such a cause of action.
The section 1982 claim similarly fails for lack of proof of
discriminatory intent. Moreover, Warson and Kim have not
identified any interference with property right, which is the
gravamen of a section 1982 claim.5
As for their section 1983 claim, Warson and Kim have not
demonstrated any action taken “under color of” state law as
required by that statute. The prosecution of a private lawsuit
solely by private actors does not satisfy the “under color of”
requirement.6
In the absence of civil rights violations under any of these
statutes, there can be no conspiracy to violate such rights. And
5 Cf. College Sav. Bank v. Florida Prepaid Postsecondary Educ. Expense Bd., 119 S. Ct. 2219, 2224 (1999) (affirming that activity of doing business is not a property right). 6 Dahl v. Akin, 630 F.2d 277, 281 (5th Cir. 1980).
4 without a conspiracy, there can be no viable claim under section
1985.
We also reject the Plaintiffs’ alternative argument, advanced
for the first time in their appellate brief, that even if they have
not shown a disputed issue of material fact on the constitutional
claims, they should be permitted to proceed past the summary stage
to have an opportunity to argue for an “expansion of the purview of
the law.” Any legal argument Warson and Kim may have to that
effect appropriately would have to be presented first to the
district court and then to this Court, but never to a jury. This
contention affords no basis for reversing the summary judgment.
As for the Plaintiffs’ remaining theories of recovery, we
perceive no error in the rulings of the district court dismissing
all counts of the complaint; neither is anything to be gained by
writing separately other than to address briefly the Plaintiffs’
additional arguments on appeal.7 In analyzing Warson and Kim’s
claim for malicious prosecution, the district court focused on the
“special injury”8 requirement, which Texas courts have defined as
interference with person or property.9 Warson and Kim concede that
7 We find no error in the district court’s construing Warson and Kim’s claims for abuse of process, gross negligence, and negligence as mere reiterations of their claim for malicious prosecution. Also, with no further discussion, we affirm the dismissal of Warson and Kim’s claim for invasion of privacy for the reasons given by the district court. 8 Texas Beef Cattle Co. v. Green, 921 S.W.2d 203, 207 (Tex. 1996). 9 Id. at 208-09.
5 they suffered no special injury in the strict sense10 but argue for
an extension of the law based on their unique circumstances. They
assert that they suffered “special injury” because they are
foreign-born, non-native speakers of English who lack knowledge of
the law and who were sued by a large corporation possessing
extensive legal expertise and resources. We reject the suggestion
that the tort of malicious prosecution includes a “thin skull rule”
which would liberally allow claims for particularly vulnerable or
unwitting defendants. In any event, despite the disadvantages that
Warson and Kim suggest about their legal and linguistic
shortcomings, we cannot overlook the fact that they nevertheless
prevailed in the underlying lawsuit. This case provides no basis
for reinterpreting or extending Texas law.
We also find no error in the district court’s construing
Warson and Kim’s claim for “filing frivolous lawsuits” as a Federal
Rule 11 motion for sanctions. The Plaintiffs assert that the
district court erred in failing to address the specific statutory
language of “the Texas code.” Only now, for the first time on
appeal, do Warson and Kim refer specifically to the “Texas Civil
Practices & Remedies Code, § 9.00 et seq.” We presume from their
general citation and the elements of the claim listed by the
Plaintiffs in their Original Petition, that they intended to direct
10 In their appellate brief, the Plaintiffs “acknowledge they suffered no loss of freedom or impoundment of property and these are usually necessary for a charge of malicious prosecution in Texas.”
6 the court’s attention to § 9.01111 which is substantially the same
as Federal Rule 11(b)(1).12 Concluding that the district court did
not err in analyzing this claim as the equivalent of a motion under
Federal Rule 11, we also affirm the court’s legal conclusion that
its inherent power to sanction does not extend to conduct occurring
in another tribunal.13 Warson and Kim’s “filing frivolous lawsuits”
claim pertains to Disney’s conduct during the first lawsuit,
conducted in a different division of the district court —— one that
has now awarded Warson and Kim costs for the burdens of that
litigation.
Finally, Warson and Kim appeal the district court’s denial of
their post-judgment Motion for Reconsideration, under Fed. R. Civ.
P. 59(e), and Motion for Relief from Order, under Fed. R. Civ. P.
60(b). The decision to deny such relief is reviewed under the
abuse of discretion standard.14 Regarding the motion under Rule
59(e) (entitled “Motion to Alter or Amend Judgment”), the
Plaintiffs cite no authority to support their asserted grounds on
which a court may grant such a motion; they merely re-cycle their
arguments against the original summary judgment motion. Regarding
11 TEX. CIV. PRAC. & REM. CODE ANN. § 9.011 (West Supp. 1999) (regarding claims brought in bad faith, for purpose of harassment, or for improper purpose such as to cause delay or increase cost of litigation). 12 FED. R. CIV. P. 11(b)(1) (“[claim] is not being brought for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation”). 13 In re Case, 937 F.2d 1014, 1023-24 (5th Cir. 1991). 14 Edward H. Bohlin Co. v. Banning Co., 6 F.3d 350, 353 (5th Cir. 1993).
7 the Motion for Relief from Order under Rule 60(b), Warson and Kim
fail to show surprise or excusable neglect; neither do they point
to any new evidence that was previously unobtainable despite the
exercise of due diligence. In fact, they admit that some of the
evidence was available but that they decided not to submit it as a
trial tactic or as a misunderstanding of their burden in responding
to a motion for summary judgment. They do not show that the
judgment on Defendants-Appellees’ motion for summary judgment was
unfairly obtained or provide any other reason justifying relief
from operation of the judgment.15 Warson and Kim provide no new
grounds for granting their rather extraordinary remedial motions
other than pleading for “substantial justice” in light of their
purportedly inferior litigating position and their claim of an
interest in “exhausting” all methods of relief available at the
trial court level. On the instant facts, we find those interests
do not outweigh the court’s interest in finality.16 The district
court did not abuse its discretion in denying the post-judgment
motions.
III.
Conclusion
Based on our de novo review of the district court’s Memorandum
Opinion and Order in light of the facts revealed by the summary
judgment record and the legal arguments advanced in the appellate
briefs of counsel, we conclude that the district court’s grant of
15 FED. R. CIV. P. 60(b)(1)-(3),(6). 16 Edward H. Bohlin Co., 6 F.3d at 355, 356.
8 summary judgment in favor of Disney et al. dismissing Warson and
Kim’s action, should be affirmed, essentially for the reasons set
forth in the thorough and well-crafted opinion of that court. In
addition, we affirm the district court’s denial of Warson and Kim’s
Motion for Reconsideration and Motion for Relief from Order.
AFFIRMED.
9 SCREENER MEMORANDUM
To: Judge Wiener
From: EAW
Date: August 6, 1999
Case: Warson v. The Walt Disney Co.
No. 99-50050
Appeal from: Western District of Texas (Briones, J.)
Recommendation: Affirm by P.C.
Summary: Plaintiffs in the instant action were 2 of 28
defendants in a previous lawsuit brought by
Disney for copyright and trademark
infringement. In the earlier case, the
district court (Sparks, J.) in a bench trial,
found that Disney failed to prove that the
defendants sold counterfeit merchandise and
entered a judgment on behalf of the
defendants, awarding costs and attorney fees.
After winning the first case, Plaintiffs in
this action seek remedies on various legal
10 theories for having to defend the earlier
suit. Central to all the claims is
Plaintiffs’ assertion that they are Korean-
Americans with limited resources and limited
knowledge of legal process who were taken
advantage of by Disney’s corporate power and
money. The district court in the instant case
granted Defendants’ (Disney et al.) motions
for summary judgment.
Issues on appeal:
1. Whether Plaintiffs established a genuine issue of material
fact regarding Defendants’ interference with contract under
section 1981. (No.)
2. Whether Plaintiffs stated a cause of action for violation of
sections 1982, 1983, and 1985. (No.)
3. Whether Plaintiffs established a genuine issue of material
fact on invasion of privacy. (No.)
4. Whether Plaintiffs established a genuine issue of material
fact on malicious prosecution. (No.)
a. Whether the district court properly construed Plaintiffs’
11 actions for abuse of process, negligence, and gross
negligence as claims for malicious prosecution which the
court denied. (Yes.)
b. Whether the district court properly construed Plaintiffs’
action for filing frivolous lawsuits as a Rule 11 claim
for sanctions which the court denied. (Yes.)
5. Whether the district court abused its discretion in denying
Plaintiffs’ 59(e) Motion for Reconsideration and Rule 60(b)
Motion for Relief from Judgment. (No.)
DISCUSSION
This appeal comes after protracted pre-trial litigation, with
many supplemental filings and requests to be re-heard and
reconsidered, in which Plaintiffs-Appellants Warson and Kim sought
damages on various theories for inconvenience and stress they
suffered in defending an earlier lawsuit that they won. Warson and
Kim failed, with regard to all claims, to establish a genuine issue
of material fact and seem to have confused their burden of pleading
with their Celotex burden of coming forward with evidence in
response to a motion for summary judgment. In addition, Warson and
Kim misunderstand the role of the jury as a finder of fact, and
request to proceed past the summary adjudication phase in order to
“expand the purview” of certain legal theories or to allow a jury
12 to decide the proper way to construe their claims. In addition to
granting summary judgment correctly, the district court did not
abuse its discretion in denying Warson and Kim’s post-judgment
Motions for “Reconsideration” and for “Relief from Judgment.”
Constitutional Claims:
Warson and Kim bring claims under sections 1981, 1982, 1983,
and 1985, none of which have merit. The essence of the section
1981 claim is that Warson and Kim, owners of t-shirt shops in
Texas, lost business or the ability to enter contracts because of
the stress, expense, and travel associated with defending the first
lawsuit. Aside from the inappropriateness of the legal theory and
the policy implications of allowing a constitutional case whenever
legal process interferes with business, Warson and Kim do not
create a genuine issue of material fact regarding interference with
contract. Warson and Kim point to their own deposition testimony
to show disputed facts on this claim. Warson, when asked about
interference with contract, at first did not understand the
question but then denied any such interference. Kim stated
affirmatively that he lost many contracts but did not elaborate.
Even if Kim’s statement —— looking at the facts in a light most
favorable to the Plaintiffs —— could create a question of fact, Kim
and Warson offer no evidence of Defendants’ discriminatory intent
which element is also necessary for a section 1981 claim. Warson
and Kim make repeated assertions in both their pretrial pleadings
and in their appellate brief that Disney “singled them out”
because they were foreign but provide no evidence creating an issue
13 of fact.
The section 1982 claim similarly fails due to the absence of
evidence of discriminatory intent. Moreover, Kim and Warson do not
identify any property right with which they experienced
interference, which is the gravamen of a section 1982 claim. The
section 1983 claim fails because there was no action “under color
of” state law —— the filing of a private lawsuit will not satisfy
that element. The section 1985 claim, conspiracy to violate civil
rights, is derivative of finding some alleged right violated, which
Warson and Kim did not demonstrate. As to the constitutional
claims generally, Warson and Kim as much as admit that all the
elements of the claims may not be met, but ask that the court
reverse the grant of summary judgment so they may argue to extend
the law. Any legal argument Warson and Kim may have to that effect
appropriately should have been presented the district court or this
court, not to a jury, thus there is no basis for reversing the
summary judgment.
State Law Claims:
In support of the invasion of privacy claim, Warson and Kim
claim a Disney investigator obtained a credit report on Warson.
Disney clarifies (without any evidentiary support) that they never
requested or obtained a personal credit report on Warson, but
rather obtained publically filed information regarding ownership of
Warson’s business, which is not be invasion of privacy. The
district court, even accepting that a personal credit report was
obtained, dismissed the claim on the ground that Warson and Kim
14 failed to present evidence or discussion of how investigation of a
readily available credit report is an “intrusion” that would be
“highly offensive to a reasonable person.” Warson and Kim, without
elaboration, assert there is a jury question on what is “highly
offensive.” There is no discussion regarding how Kim could have
standing to bring this claim, whatever the factual particulars.
As to the malicious prosecution claim, the district court held
that Warson and Kim did not show “special injury,” as required by
state law. According to the Texas standard, “special injury” must
be legal restraint on a person or on his ability to dispose of
property. Warson and Kim admit they suffered no special injury in
that strict sense (and Texas construes claims for malicious
prosecution narrowly), but argue for an extension of the law based
on their unique circumstances. Warson and Kim argue they suffered
“special injury” because of the fact that they are foreign-born,
non-native speakers of English who lack knowledge of the law and
were up against a “big guy,” Disney, which possessed extensive
resources and expertise. To adopt such an expansive view of the
“special injury” requirement, courts would have to allow a
malicious prosecution claim whenever a big corporate interest sues
an unsophisticated defendant. I do not find that malicious
prosecution contemplates this sort of “thin skull” rule —— a
plaintiff should not be exposed to greater liability for malicious
prosecution just because the defendant is particularly vulnerable
or unwitting. In any event, whatever Warson and Kim assert about
their legal and linguistic ineptness, they nevertheless prevailed
15 in the first lawsuit. I see no basis for expanding Texas law.
The district court in a twenty-page Memorandum Order addressed
each of Kim and Warson’s additional claims and provided state law
support for construing the claims of abuse of process, negligence,
and gross negligence, as mere restatements of the claim for
malicious prosecution. I found no error with those conclusions.
The district court, with regard to the claim of “filing
frivolous lawsuits,” construed it as a Rule 11 motion for
sanctions. Warson and Kim, on appeal, argue that the court failed
to address the Texas statutory language regarding “frivolous
lawsuits” in dismissing that claim. Warson and Kim refer generally
to section “9.00 et seq” of the Texas Civil Practices and Remedies
Code in support of the claim. There is a provision at § 9.011
which includes the elements Warson and Kim describe. The section
is entitled “Signing of Pleadings” and mirrors Federal Rule
11(b)(1) in language and purpose, therefore the district court did
not err in analyzing Kim and Warson’s rather vague claim as a Rule
11 motion. In fact, the Texas statute is actually narrower than
Rule 11, as it requires bad faith, purpose to harrass, or other
improper purpose, whereas Rule 11 may support sanctions merely for
failure to investigate claims adequately. In support of the merits
of the “frivolous lawsuit” claim, Warson and Kim pointed to the
district court order in the earlier lawsuit which discussed
Disney’s inadequate investigation and shoddy evidence. Warson and
Kim also intimated that Disney repeatedly has conducted this sort
of harassing litigation against foreign business owners. Even
16 accepting Warson and Kim’s characterization of Disney’s
investigation and motivation in the earlier action, Kim and Warson
already were awarded costs (even if not attorney fees, as they
appeared pro se) for their defense in the first suit and, as the
court in the second suit noted, a court’s inherent power to
sanction does not extend to conduct occurring in another tribunal.
Therefore, the court did not err in refusing to grant the Rule 11
motion.
Post-Judgment Motions:
I find no abuse of discretion in the district court’s refusal
to grant Warson and Kim’s Motions for Reconsideration and for
Relief from Judgment. As to the so-called Motion for
Reconsideration under Federal Rule of Civil Procedure 59(e)
(actually entitled “Motion to Alter or Amend Judgment” in the
Rules), Warson and Kim cited no authority in support of the grounds
on which a court may grant such a motion but merely reasserted
their arguments against the original motion for summary judgment.
As to the Motion for Relief from Judgment under Federal Rule 60(b),
Warson and Kim did not show surprise or excusable neglect; they did
not point to any new evidence that was previously unobtainable
despite the exercise of due diligence —— in fact, they admit that
some of the evidence was available but that they decided not to
submit it earlier in the litigation as a tactical decision; they
did not show that the judgment on Defendant’s motion for summary
judgment was unfairly obtained. Warson and Kim have no new
arguments for granting either rather extraordinary remedial motion
17 other than pleading for “substantial justice” in light of their
assertively inferior litigating position and claiming an interest
in “exhausting” all methods of relief available at the trial court
level. Courts, however, interpret such motions narrowly to deter
“sloppy practices” during litigation, and the district court did
not abuse its discretion in refusing to grant the motions.
18 19