IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________
No. 97-20617
_______________
BETTY R. CABALLERO,
Plaintiff-Appellant,
VERSUS
AAMCO BAIL BONDING COMPANY;
LA PLACE APARTMENTS;
and
ADOLFO QUIROS,
Defendants-Appellees.
_________________________
Appeal from the United States District Court
for the Southern District of Texas
(H-96-CV-1300)
_________________________
July 16, 1998
Before JOLLY, SMITH, and BARKSDALE, Circuit Judges.
JERRY E. SMITH, Circuit Judge:*
Betty Caballero appeals an adverse summary judgment on her
federal civil rights and Texas state negligence claims. Finding no
reversible error, we affirm.
I.
One day in July 1995, Caballero went to the apartment of her
friend Ruth Garcia to pick up some furniture and housewares Garcia
had sold her prior to Garcia's return to her native Honduras.
*
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should not be published and is not precedent except under the limited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.
Caballero gained access to Garcia's apartment and began loading
things into her vehicle. Mark Dimitroff, a private bounty hunter,
was also at the La Place Apartments that day, trying to find
Garcia, who had skipped bail. Investigating Caballero's
activities, Dimitroff claims that he found several of the Garcia
family's passports on the front seat of Caballero's vehicle. He
states that he took the passports to prevent Garcia from fleeing
the country, as she apparently intended to do.
Caballero saw that Dimitroff was taking something from her
vehicle and went to confront him. She attempted to take back what
Dimitroff had taken from her front seat. In the course of the
altercation, Dimitroff allegedly knocked Caballero to the ground,
causing her injury. Caballero claims that she then went to the
apartment complex's management office and asked them to call the
police because Dimitroff was attacking her; she also maintains that
the staff refused to help her.
Caballero returned to the apartment complex the next day to
find out whom had assaulted her and which apartment management
personnel were on duty that day. While there, she began bleeding
and was taken to a local hospital, where she was informed that she
had been pregnant and that she had had a miscarriage.
II.
Caballero brought this suit, contending that Aamco Bail
Bonding, La Place Apartments, and a La Place manager, Adolfo
Quiros, had deprived her of her constitutionally protected liberty
2
interests under color of state law. She also raised Texas state
law tort claim, a claim of battery against Aamco, and a claim of
negligence against La Place Apartments.
The parties conducted discovery. Caballero filed several
discovery motions, all of which the district court denied without
prejudice.
In the meantime, Caballero moved for a protective order of her
own deposition and a motion to compel the testimony of La Place
employee Kim Pham, who had not attended a deposition for which
inadequate notice had been given. The district court denied the
motions.
Aamco moved for sanctions under FED. R. CIV. P. 11. Given the
inconsistencies between Caballero's deposition testimony and the
facts that she alleged in her complaint, Aamco argued that the
complaint alleged facts that were not true and would have been
known not to be true had Caballero made a reasonable inquiry prior
to filing the complaint. The defendants also moved for summary
judgment.
The court granted summary judgment to all defendants and
granted Aamco's motions for sanctions.1 After final judgment,
Caballero filed a motion for reconsideration under FED. R. CIV.
P. 59(e), based on an affidavit of a La Place office worker,
Rebecca Reyes. Reyes swore in her affidavit that a woman matching
1
Although the district court's sanctions order reprimanded the plaintiff,
it did not include an award of attorney's fees.
3
Caballero's description had knocked on the door of the apartment
office on the day of the incident and that Quiros instructed her
not to call the police. The court denied the motion for reconsid
eration, stating that the plaintiff had had ample time to conduct
discovery before final judgment.
III.
We review a summary judgment de novo. See Hanks v.
Transcontinental Gas Pipe Line Corp., 953 F.2d 996, 997 (5th Cir.
1992). Summary judgment is appropriate “if the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no genuine
issue as to any material fact and that the moving party is entitled
to a judgment as a matter of law.” FED. R. CIV. P. 56(c). The
party seeking summary judgment carries the burden of demonstrating
that there is an absence of evidence to support the non-moving
party’s case. See Celotex Corp. v. Catrett, 477 U.S. 317, 325
(1986). After a proper motion for summary judgment is made, the
non-movant must set forth specific facts showing that there is a
genuine issue for trial. See Hanks, 953 F.2d at 997.
We begin by consulting the applicable substantive law to
determine what facts and issues are material. See King v. Chide,
974 F.2d 653, 655-56 (5th Cir. 1992). We then review the evidence
4
relating to those issues, viewing the facts and inferences in the
light most favorable to the non-movant. See id. If the non-movant
sets forth specific facts in support of allegations essential to
his claim, a genuine fact issue is presented. See Brothers v.
Klevenhagen, 28 F.3d 452, 455 (5th Cir. 1994).
IV.
We first consider whether the district court erred in granting
summary judgment on Caballero's federal civil rights claims. The
relevant issue is whether Aamco was acting “under color of state
law,” a requirement to maintain a cause of action under 42 U.S.C.
§ 1983. Accordingly, we must first determine whether Aamco and its
agents' conduct is “fairly attributable to the State.” Lugar v.
Edmonson Oil Co., 457 U.S. 922, 937 (1982).
We have previously rejected the notion that “the conduct of
bail bondsmen generally constitute[s] state action, because of the
interdependent relationship between bondsmen and the state's
criminal court system.” Landry v. A-Able Bonding, Inc., 75 F.3d
200, 204 (5th Cir. 1996) (distinguishing Jackson v. Pantazes,
810 F.2d 426, 430 (4th Cir. 1987)). Instead, we have taken a more
“fact-bound inquiry,” considering “the context in which state
action is alleged.” Id. (citing Edmonson Oil, 457 U.S. at 939).
To show state action, the plaintiff must prove that the
conduct is “fairly attributable to the State.” Edmonson Oil,
5
457 U.S. at 937. “'Fair attribution' requires (1) that the
deprivation is caused by the exercise of a state-created right or
privilege, by a state-imposed rule of conduct, or by a person for
whom the state is responsible, and (2) that the party charged with
the deprivation may be fairly described as a state actor.” Landry,
75 F.3d at 203-04 (citing Edmonson Oil, 457 U.S. at 937).
Assuming arguendo the first prong is met in the instant case,
under Landry, the second prong is not. In analyzing the second
part of the fair-attribution standard, we focus on the following
factors: (1) “whether the bondsmen enlisted the assistance of law
enforcement officers in arresting their principals”; and
(2) whether the bondsmen had, and displayed, an arrest warrant.
Landry, 75 F.3d at 204-05.
In this case, Caballero makes no allegation that Dimitroff
sought the assistance of law enforcement officers in apprehending
Garcia. Moreover, Dimitroff swore in his deposition that he had no
arrest warrant.
Accordingly, after the defendants moved for summary judgment,
the burden shifted to the plaintiff to put forth some evidence to
establish a genuine fact issue regarding whether Dimitroff may
“fairly be described as a state actor.” See Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248-50 (1986). Because Caballero
offered only conclusional allegations in her opposition to the
summary judgment motions, rather than affidavits, depositions, or
6
other evidence contemplated by FED. R. CIV. P. 56, a genuine fact
issue was not preserved, and summary judgment was proper. See id.2
V.
A.
Caballero also appeals the summary judgment to Aamco for her
claim under a state-law theory of negligent hiring.
The basis of responsibility under the doctrine of
negligent hiring is the master's own negligence in hiring
or retaining in his employ an incompetent servant whom
the master knows or by the exercise of reasonable care
should have known was incompetent or unfit and thereby
creating an unreasonable risk of harm to others. Texas
courts have long recognized the master's duty to make
inquiry as to the competence and qualifications of those
he considers for employment, especially where engaged in
an occupation which could be hazardous to life and limb
and requires skilled or experienced servants. This is a
duty owed by the master to his other servants and
[directly] to the public.
Estate of Arrington v. Fields, 578 S.W.2d 173, 178 (Tex. Civ.
App.SSTyler 1979, writ ref'd n.r.e.).
Caballero presented no competent evidence at the summary
judgment stage to show that Aamco knew or should have known that
Dimitroff had a propensity for violence. Indeed, Caballero's
attempt to introduce evidence of Dimitroff's criminal record failed
because the events concerned occurred after the altercation with
2
Caballero asks us to distinguish Landry because it did not deal with the
situation in which a bounty hunter has an altercation with a third party, but
rather with the situation in which the victim was the person who had skipped
bail. The holding of Landry does not in any way turn on the status of the
victim, however, but on the characteristics of the victimizer. Accordingly, we
find Landry controlling.
7
CaballeroSSmaking it impossible that such events could have put
Aamco on notice before hiring Dimitroff.
Caballero's other evidence is similarly exaggerated.3 She
points to Dimitroff's involvement in a civil battery proceeding,
but fails to mention that Dimitroff was the plaintiff in that suit.
She notes that we should draw an inference of bad behavior from
Dimitroff's traffic violation of driving on the wrong side of the
road. According to Caballero, the infraction was “an apparent
euphemism for using an automobile as a deadly weapon.” After
reviewing the record, we disagree.
B.
Caballero appeals the summary judgment to Aamco for
Dimitroff's alleged battery, which was brought under a theory of
respondeat superior. Aamco argued below that Dimitroff was an
independent contractor and thus was not, under Texas law, subject
to respondeat superior liability for Dimitroff's actions. See
Abalos v. Oil Dev. Co., 544 S.W.2d 627, 631 (Tex. 1976). Caballero
responded, in her opposition to summary judgment, that Dimitroff
was really an employee of Aamco, rather than an independent
contractor.
The district court found that Caballero had not established a
3
Caballero attempted to introduce other evidence of Dimitroff's run-ins
with the law, but these were not properly authenticated (and were thus
unreliable); they were properly not considered by the district court.
8
genuine issue of fact about Dimitroff's independent contractor
status and therefore granted summary judgment on this claim to
Aamco. On appeal, Caballero argues that the court erred by not
finding a fact issue preserved on this question. She also raises,
for the first time, a new theory: Even if Dimitroff was an
independent contractor, Aamco could not delegate its “duty of
public safety” to an independent contractor. We discuss each of
these arguments below.
1.
As a Texas court has held,
The standard test to determine whether one is acting in
the capacity of an independent contractor or as an
employee measures the amount of control that the employer
exerts or has a right to exert over the details of the
work. . . . In determining the amount of control
retained by the employer, a court is required to examine
a number of factors including: 1) the independent nature
of the worker's business; 2) the worker's obligation to
furnish the necessary tools, supplies, and materials to
perform the job; 3) the worker's right to control the
progress of the work except as to final results; 4) the
time for which he is employed; and 5) whether he is paid
for time worked or by the job.
Alvarado v. Old Republic Ins. Co., 951 S.W.2d 254, 259 (Tex.
App.SSCorpus Christi 1997) (citations omitted). Before the
district court, Aamco introduced its independent contractor
agreement with Dimitroff to show that Dimitroff was indeed an
independent contractor and thus that vicarious liability should not
attach to Aamco for his actions. The agreement provides, inter
alia, that Aamco paid Dimitroff per job, rather than per hour, and
9
that Dimitroff could work for other bail bonding companies.
In response to Aamco's motion for summary judgment, Caballero
introduced portions of the deposition of Robert Walker, Aamco's
owner, to show that he did not know the duties of a bail bonding
agency in obtaining arrest warrants. This evidence, Caballero
maintains, shows that Dimitroff was more of an employee than an
independent contractor.
We disagree. We fail to understand how this owner's lack of
knowledge of his own business or that of his independent
contractor/employee shows anything about the amount of control he
exercised over Dimitroff. We therefore agree with the district
court that on the evidence presented at summary judgment, judgment
for Aamco was appropriate.
2.
On appeal, Caballero also advances a new theory for holding
Aamco liable for Dimitroff's alleged battery. Specifically, she
argues that even if Dimitroff was an independent contractor, Texas
law would impose a non-delegable duty of public safety on the bail
bondsman that he cannot shift to an independent contractor.
Caballero failed to present to the district court this
separate theory of Aamco's liability for Dimitroff's intentional
tort. In any event, we find no error, plain or otherwise, that
would require reversal.
10
VI.
We also decline to address the summary judgment in favor of
La Place and Quiros. Although Caballero, in her brief, makes
various assertions that these defendants acted improperly, she
raises no arguments that, in granting summary judgment, the
district court erred in finding, first, that La Place and Quiros
owed no duty to her, and second, that the facts she alleged were
only conclusional statements that could not support a genuine fact
issue.
“An appellant abandons all issues not raised and argued in its
initial brief on appeal.” Cinel v. Connick, 15 F.3d 1338, 1345
(5th Cir. 1994) (emphasis in original). “An appellant's brief must
contain an argument on the issues that are raised, in order that
we, as a reviewing court, may know what action of the district
court is being complained of.” Al-Ra'id v. Ingle, 69 F.3d 28, 31
(5th Cir. 1995) (emphasis in original) (citing FED. R. APP.
P. 28(a)(6)). Because Caballero has failed to argue this claim
sufficiently in her opening brief, we decline to review it now on
appeal. See United States v. Krout, 66 F.3d 1420, 1432 (5th Cir.
1995).
VII.
Caballero challenges the district court's discovery rulings.
Specifically, she complains of the fact that the district court did
not allow Reyes to be deposed and did not allow her access to
11
“Officer Pham's” report, a report allegedly made by an off-duty
police officer who was residing and working at the apartment
complex at the time of the incident.
“Discovery matters are entrusted to the 'sound discretion' of
the district court.” King v. Dogan, 31 F.3d 344, 346 (5th Cir.
1994) (quoting Richardson v. Henry, 902 F.2d 414, 417 (5th Cir.
1990)). The district court properly exercised its discretion.
First, Caballero never moved in the district court to compel
production of Pham's reportSSeither as part of the motion to compel
discovery from La Place, or separately. The court did not err,
therefore, in refusing a request that the plaintiff failed to
make.4
Second, Caballero made no motion with respect to Reyes until
after final judgment was enteredSSand then with little or no
explanation for the delay. That the district court would not, at
that late date, consider the motion, or Reyes's affidavit for that
matter, was not error.
VIII.
Finally, we address Aamco's separately-filed motion to this
court for sanctions under FED. R. CIV. P. 11(b)(3). In the district
court, Caballero was sanctioned under rule 11 for including, in her
complaint, facts that she knew or could reasonably have known were
4
Caballero later moved to compel the deposition of Kim Pham, Officer
Pham's wife, but the district court denied it because she failed to provide
adequate notice of the deposition. In doing so, again, the district court did
not abuse its discretion.
12
untrue. On appeal, she does not appeal that finding, but again
restates those facts as true in her briefs to this court.
“On its face, Rule 11 does not apply to appellate proceedings.
Its provision allowing the court to include 'an order to pay the
other party or parties the amount of reasonable expenses incurred
because of the filing of the pleading, motion, or other paper,
including reasonable attorney's fee' must be interpreted in light
of Federal Rule of Civil Procedure 1, which indicates that the
Rules only 'govern the procedure in the United States district
courts.'” Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 406
(1990). “On appeal, the litigants' conduct is governed by Federal
Rule of Appellate Procedure 38, which provides: 'If a court of
appeals shall determine that an appeal is frivolous, it may award
just damages and single or double costs to the appellee.'” Id. at
407.
We have no occasion to review the propriety of the district
court's sanction order, which denied the award of attorney's fees
for those proceedings, as neither party has appealed that ruling.
We must determine, however, whether, under the standards of
rule 38, an award of sanctions is warranted for a frivolous appeal.
Rule 38 sanctions are discretionary. See FED. R. APP. P. 38.
“The threshold consideration is frivolity. In this circuit, a
frivolous appeal is either one that pursues legal points not
13
arguable on the merits or one in which the result is obvious.”
Ozee v. American Coun. on Gift Annuities, Inc., 110 F.3d 1082, 1097
(5th Cir.) (citations omitted), vacated and remanded on other
grounds, 118 S. Ct. 596 and 118 S. Ct. 597 (1997). Once frivolity
has been established, we must determine whether sanctions are
merited. See generally 19 JAMES W. MOORE ET AL., MOORE'S FEDERAL PRACTICE
§ 338.30, at 338-12 (3d ed. 1998).
Caballero appeals arguments based on facts that are wholly
without basis in the record. Moreover, CaballeroSSthrough her
counsel, Scott LevySScontinues to advocate factual assertions found
sanctionable by the district courtSSa sanction she does not even
appeal. Accordingly, we impose sanctions of $2,500 on Levy under
rule 38. We direct that this be paid by Levy, not Caballero.
The judgment is AFFIRMED, and Aamco's motion for sanctions on
appeal is GRANTED.56
5
Caballero's motion for oral argument is DENIED.
6
All outstanding motions that are not addressed are hereby
DENIED.
14