Leo v. Garmin International, Inc.

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit

TENTH CIRCUIT May 13, 2014

Elisabeth A. Shumaker
Clerk of Court
ALEX HUAQIANG LEO,

Plaintiff - Appellant,

v. No. 14-3010
(D. C. No. 2:09-CV-02139-KHV)
GARMIN INTERNATIONAL, INC., (D. Kan.)

Defendant - Appellee.

ORDER AND JUDGMENT*

Before HARTZ, McKAY, and MATHESON, Circuit Judges.

Alex Huaqiang Leo appeals pro se from the district court’s order imposing

sanctions and directing the clerk of the district court not to file Mr. Leo’s “Request to

Take Judicial Notice of the Law And/Or Adjudicative Facts” (the “Request”). Exercising

jurisdiction under 28 U.S.C. § 1291, we affirm the district court’s order and deny Mr.

Leo’s motion to proceed in forma pauperis (“ifp”).

*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 ordered submitted without oral argument. This order and judgment is not
binding precedent, except under the doctrines of law of the case, res judicata, and
collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed.
R. App. P. 32.1 and 10th Cir. R. 32.1.
I. BACKGROUND

Mr. Leo sued Garmin International, Inc. (“Garmin”) pro se, alleging race and age

discrimination for refusing to hire him. The district court granted summary judgment in

favor of Garmin in 2010.

Mr. Leo then embarked on a “litigation odyssey.” Leo v. Garmin Int’l, Inc. (Leo

VII), 536 F. App’x 813, 815 (10th Cir. 2013) (unpublished) (quotations omitted),

resulting in countless district court orders and seven Tenth Circuit decisions. See id.; Leo

v. Garmin Int’l, Inc. (Leo VI), 506 F. App’x 804 (10th Cir. 2013) (unpublished); Leo v.

U.S. Dist. Court (Leo V), 475 F. App’x 310 (10th Cir. 2012) (unpublished); Leo v.

Garmin Int’l, Inc. (Leo IV), 464 F. App’x 744 (10th Cir. 2012) (unpublished); Leo v.

Garmin Int’l, Inc. (Leo III), 464 F. App’x 740 (10th Cir. 2012) (unpublished) cert.

denied, 133 S. Ct. 178 (2012); Leo v. Garmin Int’l, Inc. (Leo II), 464 F. App’x 737 (10th

Cir. 2012) (unpublished) cert. denied, 133 S. Ct. 484 (2012); Leo v. Garmin Int’l, Inc.

(Leo I), 431 F. App’x 702 (10th Cir. 2011) (unpublished).

We detailed Mr. Leo’s litigation history in Leo VII, 536 F. App’x at 814-16, and

decline to repeat it. In September 2011, the district court forbade Mr. Leo from filing

“any document which requests post-judgment reconsideration, alteration, or

modification” of the order granting summary judgment to Garmin and warned it “will

sanction [Mr. Leo] a minimum of $500.00 for each violation.” Appx. at 38. We upheld

this order in Leo IV, 464 F. App’x at 745-56.

On November 25, 2013, Mr. Leo submitted his Request to the district court, in

which he quoted large sections of our opinion in Leo VII and asked the district court to

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take notice of certain “facts” to contest whether the district court should have granted

summary judgment in favor of Garmin. Appx. at 39-40. The district court determined

Mr. Leo’s Request attempted to reargue the court’s summary judgment decision and

therefore violated the filing restriction. It directed the clerk not to file Mr. Leo’s Request

and sanctioned Mr. Leo for $500.00.

Mr. Leo timely filed a notice of appeal. He also filed a motion for leave to

proceed ifp.1

II. DISCUSSION

A. Refusal to File Mr. Leo’s Request and the $500 Sanction

Mr. Leo complains the district court violated his constitutional rights when it

directed the clerk of the court not to file his Request and imposed the $500 sanction. We

see no violation.

Courts may restrict a litigant’s filing rights and impose monetary sanctions for

filing violations without violating the Constitution when the litigant has a history of

abusive filing. See Braley v. Campbell, 832 F.2d 1504, 1510 (10th Cir. 1987) (“To deter

frivolous and abusive litigation and promote justice and judicial efficiency, the federal

courts are empowered to impose monetary sanctions, by statutes and the rules of civil and

1
The district court’s grant of ifp status to Mr. Leo in 2009 has endured since then.
See Fed. R. App. P. 24(a)(3).
In light of Mr. Leo’s filing history and because his continued eligibility for ifp
status has not been evaluated recently, we required Mr. Leo to file a renewed ifp motion
in this case.

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appellate procedure as well as their inherent right to manage their own proceedings.”);

Fed. R. Civ. P. 11(c) (authorizing sanctions for filing frivolous or abusive pleadings).

We upheld the district court’s filing restrictions in Leo IV. Mr. Leo failed to

comply. The district court’s refusal to file Mr. Leo’s Request and imposition of a

monetary sanction were constitutional and appropriate.

B. Motion to Proceed Ifp

To proceed ifp, “the movant must show a financial inability to pay the required

filing fees, as well as the existence of a reasoned, nonfrivolous argument on the law and

facts in support of the issues raised in the action.” Lister v. Dep’t of Treasury, 408 F.3d

1309, 1312 (10th Cir. 2005). We deny Mr. Leo’s motion to proceed ifp because his

appeal is frivolous.

III. CONCLUSION

For the foregoing reasons, we affirm the district court’s order and deny Mr. Leo’s

request to proceed ifp.

ENTERED FOR THE COURT

Scott M. Matheson, Jr.
Circuit Judge