Bernard Henneberger v. Ticom Geomatics, Incorporat

Case: 19-50024 Document: 00515183186 Page: 1 Date Filed: 11/01/2019

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit

FILED
No. 19-50024 November 1, 2019
Lyle W. Cayce
BERNARD HENNEBERGER, Clerk

Plaintiff - Appellant

v.

TICOM GEOMATICS, INCORPORATED;
SIX3 SYSTEMS, INCORPORATED;
CACI INTERNATIONAL, INCORPORATED; GTCR, L.L.C.;
MARK LEACH; DAVID FEUERSTEIN,

Defendants - Appellees

Appeal from the United States District Court
for the Western District of Texas
USDC No. 1:18-CV-134

Before JONES, SMITH, and HAYNES, Circuit Judges.
PER CURIAM:*
Pending before the court is a motion to dismiss this appeal as frivolous,
award the moving defendants-appellees 1 costs in the amount of their attorney
fees, and consider doubling such costs. Additionally, the defendants request

* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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 Defendants Six3 Systems, Inc., CACI International, Inc., and GTCR, L.L.C. do not
join this motion.
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No. 19-50024
that Henneberger be barred from bringing a future case against them unless
he is represented by counsel or obtains permission to proceed pro se. For
reasons set forth below, we GRANT the defendants’ motion for monetary
sanctions and bar Henneberger from filing a lawsuit against these defendants
in a court within our jurisdiction unless he first obtains permission from the
court in which he seeks to proceed.
BACKGROUND
This lawsuit represents Henneberger’s third attempt to recover from an
alleged breach of an oral contract. His first two attempts were made in Illinois
and ended poorly. See Henneberger v. Ticom Geomatics, Inc., 694 F. App’x. 419
(7th Cir. 2017); Henneberger v. Ticom Geomatics, Inc., 602 F. App’x. 352 (7th
Cir. 2015). Undeterred, Henneberger pro se filed suit in Texas state court,
asserting that defendants Mark Leach and David Feuerstein promised him
unspecified equity or proceeds from a future sale of Ticom Geomatics, Inc.
(“TGI”) in exchange for rights to intellectual property he allegedly created
while employed by TGI. The defendants successfully removed the case to
federal court. They then filed three separate motions to dismiss. They
collectively filed a motion to dismiss for failure to state a claim, arguing that
Henneberger’s causes of action were barred by the applicable statutes of
limitations. Six3 Systems, Inc., CACI International, Inc., and GTCR, L.L.C.
filed a motion to dismiss for lack of personal jurisdiction. And GTCR filed a
motion to dismiss for lack of subject matter jurisdiction. The district court
granted each of these motions. Henneberger then appealed to this court.
DISCUSSION
Rule 38 of the Federal Rules of Appellate Procedure provides that “[i]f a
court of appeals determines that an appeal is frivolous, it may, after a
separately filed motion . . . award just damages and single or double costs to
the appellee.” FED. R. APP. P. 38. “An appeal is frivolous if the result is obvious
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No. 19-50024
or the arguments of error are wholly without merit.” Coghlan v. Starkey,
852 F.2d 806, 811 (5th Cir. 1988). Henneberger’s appeal fits the description of
frivolousness under Rule 38. 2 The arguments he advances come nowhere close
to substantively addressing the district court’s stated reasons for its decisions.
Henneberger dedicates most of his brief to detailing unsubstantiated
allegations raised in an entirely separate qui tam action. The only relevant
argument he presses on appeal is that his claims are not time barred. 3 This
argument, however, flies in the face of well-established law cited by the district
court.
The district court concluded that because this is a diversity case, Texas
law applies. The court then explained that under Texas law, Henneberger’s
causes of action were subject to either a two-year or four-year statute of
limitations. Because Henneberger filed his complaint in Texas state court
more than four years after his causes of action accrued, his claims were time
barred. The district court further explained, in well-reasoned terms, why the
Texas Savings Statute cannot be used to toll Henneberger’s claims. That
statute is only applicable if a plaintiff, in good faith, mistakenly files his
lawsuit in a court lacking jurisdiction and then remedies this error by filing
his lawsuit in a court of proper jurisdiction within sixty days of the first

2“That his filings are pro se offers [Henneberger] no impenetrable shield, for one
acting pro se has no license to harass others, clog the judicial machinery with meritless
litigation, and abuse already overloaded court dockets.” Farguson v. MBank Houston, N.A.,
808 F.2d 358, 359 (5th Cir. 1986).

3Henneberger also takes aim at the district court’s orders dismissing his claims
against Six3 Systems, CACI International, and GTCR for lack of personal jurisdiction and
subject matter jurisdiction. Those orders, however, are of no relevance for purposes of
resolving the defendants’ Rule 38 motion. First, Six3 Systems, CACI International, and
GTCR have not joined the Rule 38 motion. So we need not decide whether Henneberger’s
personal jurisdiction and subject matter jurisdiction arguments are frivolous. Second,
Henneberger’s lawsuit was independently dismissed for failure to state a claim upon which
relief can be granted. Unless he proves otherwise, his appeal is doomed.
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No. 19-50024
dismissal. TEX. CIV. PRAC. & REM. CODE § 16.064. The district court concluded
that Henneberger failed to satisfy the second requirement.
On appeal, Henneberger does little to explain how the district court
committed a reversible error. He offers the cursory statement that his current
complaint “was filed within 60 days of the conclusion of the appeal of” his
second lawsuit in Illinois and is thus timely. But the district court explained
at length why this argument fails. And Henneberger has done nothing to
contest this reasoning. He also fleetingly suggests that the doctrine of
equitable tolling should apply given the “extraordinary circumstances” of this
case. The “extraordinary circumstances” he references, however, have nothing
to do with his ability to timely file this lawsuit. They instead relate to
unsubstantiated allegations raised in an entirely separate qui tam action and
have no bearing on our decision. Henneberger’s last assertion is that his claims
were timely under the Illinois Savings Statute. But he fails to explain why
Illinois law is of any relevance in this diversity action.
Considering the frivolousness of Henneberger’s appeal, Defendants TGI,
Leach, and Feuerstein move under Rule 38 of the Federal Rules of Appellate
Procedure for the court to dismiss Henneberger’s appeal and award them costs
in the amount of their attorney fees associated with defending this appeal.
They also invite the court to consider doubling such costs and to limit
Henneberger’s ability to file additional pro se complaints against them.
Each of these sanctions is appropriate because Henneberger has
demonstrated a continued pattern of filing frivolous, vexatious appeals that
waste the defendants’ and the court’s resources. We accordingly dismiss this
appeal, order Henneberger to pay attorneys’ fees including an additional
sanction, and enjoin him from bringing another lawsuit (regardless of whether
Henneberger is represented by counsel or proceeding pro se) against these

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No. 19-50024
defendants in any federal court over which we have jurisdiction without first
obtaining permission from the court in which Henneberger seeks to file suit.
This last sanction is not specifically authorized by Rule 38 of the Federal
Rules of Appellate Procedure. But this court has “inherent power to impose
sanctions for abuse of the judicial process.” Howard v. St. Germain, 599 F.3d
455, 458 (5th Cir. 2010). We exercise that power here in a tailored manner
that “protect[s] the courts and innocent parties, while preserving”
Henneberger’s rights. See Farguson v. MBank Houston, N.A., 808 F.2d 358,
360 (5th Cir. 1986); see also In re Carroll, 850 F.3d 811, 815 (5th Cir. 2017)
(“Federal courts . . . have authority to enjoin vexatious litigants under the All
Writs Act, 28 U.S.C. § 1651.”).
We often would remand to the district court for the fixing of the monetary
sanction. See Marston v. Red River Levee & Drainage Dist., 632 F.2d 466, 468
(5th Cir. 1980). But the defendants have filed an affidavit of the hours
expended in defense of this appeal, and both the hourly rate and time
documented are reasonable. We therefore set the fee award at the sum of
$15,000 4 and direct Henneberger to pay said amount to the moving defendants.
CONCLUSION
The defendants’ motion is GRANTED in full and the appeal is
DISMISSED. Henneberger’s pending motion for sanctions is DENIED.

4 This amount represents the defendants’ fees associated with defending this appeal—
$10,370, plus an additional sanction.
5