United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS July 28, 2003
FOR THE FIFTH CIRCUIT Charles R. Fulbruge III
Clerk
No. 02-51216
Summary Calendar
JERRY D. HARTHCOCK,
Plaintiff-Appellant,
versus
ROYSTON, RAYZOR, VICKERY & WILLIAMS LLP;
KILPATRICK STOCKTON LLP,
Defendants-Appellees,
and
COMMISSIONER OF PATENTS AND TRADEMARKS, ETC.,
Respondent.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. SA-01-CV-995-FB
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Before SMITH, DeMOSS, and STEWART, Circuit Judges.
PER CURIAM:*
Jerry D. Harthcock, proceeding pro se, appeals the dismissal
for failure to state a claim of his trade-secret misappropriation
action. In his complaint and amended complaint, Harthcock alleged
*
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this opinion should not be published and is not precedent except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.
that the law firms of Royston, Rayzor, Vickery, & Williams
(Royston) and Kilpatrick Stockton (Kilpatrick), in prosecuting a
patent, committed “felony” theft of a trade secret.
As an initial matter, Harthcock’s unopposed motion to submit
the case on the briefs is GRANTED. Also, Harthcock does not
address the district court’s denial of injunctive and declaratory
relief or the dismissal of the Commissioner of Patents and
Trademarks as respondent. Thus, Harthcock is deemed to have
abandoned these issues on appeal. Yohey v. Collins, 985 F.2d 222,
224-25 (5th Cir. 1993). Harthcock’s argument that the district
court erred in characterizing his theft-of-trade-secrets claim as
civil in nature is raised for the first time in his reply brief and
will not be considered. See Price v. Roark, 256 F.3d 364, 368 n.2
(5th Cir. 2001).
The district court did not err in dismissing Harthcock’s
complaint for failure to state a claim. Barrientos v. Reliance
Standard Life Ins. Co., 911 F.2d 1115, 1116 (5th Cir. 1990); FED.
R. CIV. P. 12(b)(6). A review of Harthcock’s pleading shows that he
failed to establish that the trade secret was acquired through the
breach of a confidential relationship or was discovered by improper
means or that there was a “use” of the trade secret so as to state
a claim for theft of trade secrets. Phillips v. Frey, 20 F.3d 623,
617 (5th Cir. 1994).
Harthcock argues that the district court erred in denying his
motion for leave to file a second amended complaint. The claims
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that Harthcock sought to raise in the second amended complaint did
not cure the deficiencies in Harthcock’s first amended complaint,
namely, that he failed to adequately plead a cause of action for
theft of trade secrets. Accordingly, Harthcock’s first amended
complaint pleaded his “best case,” and the district court did not
abuse its discretion in denying Harthcock’s motion for leave to
file a second amended complaint. Ashe v. Corley, 992 F.2d 540, 542
(5th Cir. 1993); Jacquez v. Procunier, 801 F.2d 789, 793 (5th Cir.
1986).
The district court also did not err in granting the appellees’
motions to dismiss prior to the scheduling-order deadline for
filing dispositive motions. See Union City Barge Line, Inc. v.
Union Carbide Corp., 823 F.2d 129, 135 (5th Cir. 1987)(district
court has broad discretion to control its own docket).
Nor did the district court abuse its discretion in denying
Harthcock’s motion to disqualify Royston’s counsel. FDIC v. U.S.
Fire Insurance Co., 50 F.3d 1304, 1311 (5th Cir. 1995). Harthcock
failed to show that Thomas L. Crisman’s prior representation of him
was substantially related to the current litigation so as to
warrant the disqualification of counsel. In re American Airlines,
Inc., 972 F.2d 605, 614 (5th Cir. 1992). The fact that Harthcock
intended to call Crisman as a witness in the instant litigation
also did not warrant the disqualification of counsel. Given the
foregoing, the judgment of the district court is AFFIRMED.
MOTION GRANTED; AFFIRMED.
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