United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT July 18, 2007
Charles R. Fulbruge III
Clerk
No. 06-60499
Summary Calendar
TYREE W. BROWN,
Plaintiff-Appellant,
v.
DOW CHEMICAL COMPANY,
Defendant-Appellee.
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Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 3:01-CV-00027
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Before DAVIS, SMITH, and OWEN, Circuit Judges.
PER CURIAM:*
Tyree W. Brown appeals the district court’s denial of his
motion for reconsideration and his FED. R. CIV. P. 60(b) motion
seeking a determination that the district court lacked jurisdiction
to address his initial complaint for damages arising from alleged
exposure to pentachlorophenol. He argues that original
jurisdiction in the case was vested in the state court.
Brown filed the complaint pursuant to the diversity
jurisdiction of the district court because the named plaintiffs
were all citizens of Mississippi and Dow Chemical Company is a
*
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this opinion should not be published and is not precedent except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.
No. 06-60499
-2-
Delaware Corporation with its principal place of business in
Michigan. The district court possessed subject matter jurisdiction
in the case pursuant to 28 U.S.C. § 1332. Because Brown’s argument
has no arguable merit, his appeal is dismissed as frivolous. See
5TH CIR. R. 42.2; Howard v. King, 707 F.2d 215, 219-20 (5th Cir.
1983).
Dow Chemical Company has filed a motion to recover monetary
penalties pursuant to FED. R. APP. P. 38, arguing that the action
is not only frivolous, but that it is submitted solely as a
harassment tactic. Dow Chemical Company seeks damages, attorneys’
fees, and double costs, and any other just and equitable relief
that may be appropriate, including an order precluding Brown from
filing further motions or appeals in this case.
If a circuit court “determines that an appeal is frivolous, it
may, after a separately filed motion or notice from the court and
reasonable opportunity to respond, award just damages and single or
double costs to the appellee.” FED. R. APP. P. 38.
Sanctions under Rule 38 are appropriate in this case. The
arguments raised by Brown are frivolous, given the fact that he
filed the complaint and properly invoked the district court’s
diversity jurisdiction. The dismissal of his underlying claims has
already been affirmed by this court. Brown v. Dow Chemical Co., 57
F. App’x 212 (5th Cir. 2003). Brown’s repeated frivolous motions
for reconsideration can be construed only as a form of harassment
No. 06-60499
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to the appellee and a waste of the federal courts’ resources. See
Goad v. Rollins, 921 F.2d 69, 71 (5th Cir. 1991).
Brown is ordered to pay Dow Chemical Company its reasonable
attorneys’ fees and the costs it incurred on appeal and is warned
that he can file no further actions or civil appeals until the
sanctions are paid. The clerk of this court and the clerks of all
federal district courts within this circuit are directed to refuse
to file any civil complaint or civil appeal by Brown unless Brown
submits proof of satisfaction of all sanctions. If Brown attempts
to file any further notices of appeal or original proceedings in
this court without such proof, the clerk shall docket them for
administrative purposes only. Any submissions which do not show
proof that the sanction has been paid will neither be addressed nor
acknowledged. Brown is cautioned that any further frivolous
filings in the district court or on appeal will subject him to
additional sanctions.
Dow Chemical Company is directed to file a bill of costs
together with an affidavit setting forth expenses and attorneys’
fees reasonably incurred by it in connection with this appeal. See
FED. R. APP. P. 38 & 39.
APPEAL DISMISSED; SANCTION IMPOSED; SANCTION WARNING ISSUED;
APPELLEE TO FILE A BILL OF COSTS AND AFFIDAVIT OF EXPENSES AND
ATTORNEYS’ FEES.