Alfred Montoya v. FedEx Ground Package System In

Filing

Case: 09-40288

Document: 00511197518

Page: 1

Date Filed: 08/09/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
August 9, 2010 N o . 09-40288 Lyle W. Cayce Clerk

A L F R E D MONTOYA, P la in t iff - Appellant v. F E D E X GROUND PACKAGE SYSTEM INC., D e fe n d a n t - Appellee

A p p e a l from the United States District Court for the Southern District of Texas

B e fo r e DAVIS, SMITH, and HAYNES, Circuit Judges. H A Y N E S , Circuit Judge: A lfr e d Montoya appeals from the district court's dismissal of his 42 U.S.C. § 1985(2) suit against FedEx Ground Package System, Inc. ("FXG"), for failure t o state a claim. The district court concluded that the statute of limitations had r u n on Montoya's claims. We pretermit the statute of limitations question and in s t e a d AFFIRM on the alternate grounds that Montoya has not plausibly a lle g e d a conspiracy aimed at deterring him from or retaliating against him for a t t e n d in g or testifying in a federal proceeding. I . Facts & Procedural Background F o r the purposes of this appeal from a dismissal for failure to state a claim u p o n which relief can be granted, we "accept[] all well-pleaded facts as true and

Case: 09-40288

Document: 00511197518

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Date Filed: 08/09/2010

No. 09-40288 v ie w [] those facts in the light most favorable to the plaintiff." Sullivan v. Leor E n e r g y LLC, 600 F.3d 542, 546 (5th Cir. 2010). We therefore recite here the fa c t s as alleged in Montoya's first amended complaint. F r o m 1994 until 2006, Montoya was an independent contractor pick-up a n d delivery provider for FXG and its predecessor, RPS Inc. ("RPS").1 Montoya p r o v id e d his own vehicles and employees and served an area designated by FXG (M o n t o y a 's "primary service area"). Under his contract with FXG, Montoya was c o m p e n s a te d on the basis of the number of pick-ups and deliveries he made in h is primary service area. I n 2002, FXG employees Eddie Garza-Gongora, the FXG Laredo terminal m a n a g e r , and Eddie Contreras, one of the assistant managers, notified Montoya t h a t part or all of his primary service area was being reassigned. Montoya c o m p la in e d to FXG's contractor relations staff and won reinstatement of part of t h e primary service area that Garza-Gongora and Contreras had informed him w a s being removed. The remainder of Montoya's former primary service area w a s assigned to Enrique Lozano, another independent contractor pick-up and d e liv e r y provider. O n June 3, 2004, Montoya filed suit (the "2004 Litigation") against FXG in the 111th District Court, Webb County, Texas, alleging breach of contract a r is in g out of the reassignment of part of his primary service area. FXG

r e m o v e d to the United States District Court for the Southern District of Texas. Montoya responded to discovery requests in connection with the 2004 Litigation, in c lu d in g providing deposition testimony pursuant to FXG's notice on February 2 3 , 2005. R o d g e r Cabello, another FXG assistant terminal manager, and GarzaG o n g o r a learned of the 2004 Litigation. Montoya alleges that these two FXG

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The complaint does not specify when FXG succeeded to Montoya's contract with RPS.

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No. 09-40288 e m p lo y e e s "acquired a hostile animus towards Montoya due to" the 2004 L it ig a t io n and "enlisted the aid and assistance" of three independent c o n t r a c to r s -- L o z a n o , Humberto Escobedo, and Gerardo Rodriguez--"in order to in t im id a t e , harm, harass, and coerce Montoya into desisting from the pursuit [of] h is claim in" federal court. I n early July 2004, Cabello and Garza-Gongora instructed Montoya to d is m is s one of his employees. Montoya did so and asked Lozano and Escobedo t o cover his primary service area until he could find and hire a new driver. Lozano initially agreed to help Montoya cover his primary service area but s u b s e q u e n t ly declined. Lozano told Montoya that "Cabello and/or Garza-

G o n g o r a forbade or coerced him into refusing [to] assist[] Montoya until Montoya c o u ld find a replacement driver." Cabello and Garza-Gongora "withheld their a p p r o v a l of replacement employees" to drive Montoya's routes, including t e m p o r a r y employees authorized by FXG to drive for other contractors. Cabello a ls o discouraged drivers employed by other contractors from assisting Montoya. I n late July 2004, Cabello encouraged Montoya to sell his business or r o u t e s to Lozano and Escobedo; he further informed Montoya that he would r e c e iv e no new routes while the 2004 Litigation was pending and that, if M o n to y a dropped the 2004 Litigation, he would consider adding a new route to M o n to y a 's service area. C a b e llo and Garza-Gongora reduced Montoya's routes on multiple other o c c a s io n s during the pendency of the 2004 Litigation and in some cases assigned t h e removed routes to Lozano and Escobedo with their agreement. Montoya a lle g e s that Cabello and Garza-Gongora undertook these reductions "[d]ue to the p e n d e n c y of" the 2004 Litigation and "because [Montoya] refused to drop" the 2 0 0 4 Litigation. In March or April 2005, Cabello informed Montoya that FXG would not r e n e w his contract because of the pendency of the 2004 Litigation. Throughout 3

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No. 09-40288 2 0 0 5 , Cabello and Garza-Gongora took a variety of actions--assigning additional w o r k without approving enough drivers, concealing scanners and scanning r e c o r d s -- t o make Montoya's performance record look poor. In June 2005,

C a b e llo and Garza-Gongora removed half of Montoya's remaining primary s e r v ic e area and assigned it to Escobedo and Lozano. F in a lly , on May 21, 2006, Garza-Gongora, acting on behalf of FXG, t e r m in a t e d Montoya's contract.2 Montoya alleged that "[t]he motivation for G a rza -G o n g ora 's action in terminating Montoya's contract with [FXG] was based in whole or in part upon Montoya's maintenance of" the 2004 Litigation. O n April 1, 2008, Montoya filed this suit in the United States District C o u r t for the Southern District of Texas. As amended shortly afterward, the c o m p la in t alleged that the actions of FXG, Lozano, Escobedo, and Rodriguez c o n s t it u t e d a conspiracy to intimidate a party to a federal lawsuit in violation of 4 2 U.S.C. § 1985(2). The suit sought damages for Montoya's economic injury and a t t o r n e y s ' fees. Two months later, Montoya filed a notice of voluntary dismissal w it h o u t prejudice as to Rodriguez, Lozano, and Escobedo pursuant to Federal R u le of Civil Procedure 41(a)(1)(A)(i). Although the court did not act on the p r o p o s e d order that Montoya filed with his notice, the dismissal as to those p a r tie s was effective when the notice was filed. See Qureshi v. United States, 6 0 0 F.3d 523, 525 (5th Cir. 2010) (explaining that a Rule 41(a)(1)(A)(i) dismissal is "immediately self-effectuating" without any action by the court); Florists' Mut. I n s . Co. ex rel. Plains Growers, Inc. v. Ickes-Braun Glasshouses, Inc., 474 F.2d 2 5 0 , 253, 254­55 (5th Cir. 1973) ("[A] plaintiff is entitled to a dismissal against o n e defendant under Rule 41(a), even though the action against another d e fe n d a n t would remain pending.").

Montoya originally alleged that these routes were subsequently assigned to Escobedo, Lozano, and Rodriguez, but he has expressly abandoned that position on appeal.

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No. 09-40288 F X G moved to dismiss for failure to state a claim under Federal Rule of C iv il Procedure 12(b)(6). The district court concluded that the statute of

lim it a t io n s had expired; the court therefore granted FXG's motion on March 2, 2 0 0 9 , and entered judgment for FXG on April 7, 2009. Montoya appealed on M a r c h 13, 2009, which was rendered effective and timely upon the entry of ju d g m e n t . See FED. R. APP. P. 4(a)(2) ("A notice of appeal filed after the court a n n o u n c e s a decision or order--but before the entry of the judgment or order--is t r e a t e d as filed on the date of and after the entry."). I I . Standard of Review W e review the district court's dismissal of this lawsuit for failure to state a claim de novo, "accepting all well-pleaded facts as true and viewing those facts in the light most favorable to the plaintiff." Sullivan v. Leor Energy LLC, 600 F .3 d 542, 546 (5th Cir. 2010). Dismissal under Federal Rule of Civil Procedure 1 2 (b )(6 ) is appropriate where the plaintiff fails to allege "enough facts to state a claim to relief that is plausible on its face" and thus does not "raise a right to r e lie f above the speculative level." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 5 7 0 (2007). "A claim has facial plausibility when the pleaded factual content a llo w s the court to draw the reasonable inference that the defendant is liable for t h e misconduct alleged." Ashcroft v. Iqbal, 129 S. Ct. 1937, 1940 (2009). Further, it is well established--notwithstanding Montoya's objection--that t h e court of appeals "may affirm a district court's Rule 12(b)(6) dismissal on any g r o u n d s raised below and supported by the record." E.g., Cuvillier v. Sullivan, 5 0 3 F.3d 397, 401 (5th Cir. 2007); see also, e.g., Jaffke v. Dunham, 352 U.S. 280, 2 8 1 (1957) (per curiam) ("A successful party in the District Court may sustain it s judgment on any ground that finds support in the record."). No cross-appeal is required to support appellate jurisdiction to affirm on alternative grounds. United States v. Am. Ry. Express Co., 265 U.S. 425, 435 (1924).

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No. 09-40288 I I I . Discussion T it le 42 U.S.C. § 1985, part of the Civil Rights Act of 1871, creates a p r iv a t e civil remedy for three prohibited forms of conspiracy to interfere with c iv il rights under that section. Subsection (1) prohibits conspiracies to prevent fe d e r a l officers from performing the duties of their offices "by force, intimidation, o r threat." § 1985(1). Subsection (3) prohibits conspiracies to "depriv[e] . . . any p e r s o n or class of persons the equal protection of the laws" and those aimed at p r e v e n t in g a person from lawfully voting. § 1985(3). Subsection (2) concerns c o n s p ir a c ie s directed at the right of participation in federal judicial proceedings. I n particular, the first half of subsection (2), the provision at issue here, provides th a t [i]f two or more persons in any State or Territory conspire to deter, b y force, intimidation, or threat, any party or witness in any court o f the United States from attending such court, or from testifying to a n y matter pending therein, freely, fully, and truthfully, or to injure s u c h party or witness in his person or property on account of his h a v in g so attended or testified, or to influence the verdict, p r e s e n t m e n t , or indictment of any grand or petit juror in any such c o u r t , or to injure such juror in his person or property on account of a n y verdict, presentment, or indictment lawfully assented to by him, o r of his being or having been such juror; . . . in any case of c o n s p ir a c y set forth in this section, if one or more persons engaged t h e r e in do, or cause to be done, any act in furtherance of the object o f such conspiracy, whereby another is injured in his person or p r o p e r t y , or deprived of having and exercising any right or privilege o f a citizen of the United States, the party so injured or deprived m a y have an action for the recovery of damages, occasioned by such in ju r y or deprivation, against any one or more of the conspirators. § 1985(2), (3). T h is case is obviously somewhat far afield from the original purposes of t h e Civil Rights Act of 1871 and of this particular section, the Ku Klux Klan Act. Nevertheless, as the district court noted, the statute has been read by the S u p r e m e Court as protecting any party, witness, or juror from intimidation

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Case: 09-40288

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No. 09-40288 r e g a r d le s s of any racial animus on the part of the defendant, Kush v. Rutledge, 4 6 0 U.S. 719, 723­27 (1983), and as encompassing claims of pure economic loss, K in n e y v. Weaver, 367 F.3d 337, 353 (5th Cir. 2004) (en banc) (citing Haddle v. G a r r is o n , 525 U.S. 121, 126 (1998)). These expanded interpretations of the scope o f the Act, however, do[] not create liability for every adverse action taken against a w it n e s s after the witness testifies in a federal case. In addition to t h e requirement that there be a cognizable injury to the witness or h is property . . . , the statute itself contains another limiting p r in c ip le : the conspirator must threaten or injure the witness "on a c c o u n t of his having so attended or testified"--that is, because of, a n d by reason of, a person's participation as a witness. K in n e y , 367 F.3d at 355. The same logic limits liability for adverse actions taken a g a in s t parties and witnesses who have not yet testified in the proceeding: in t h a t case, the conspirator must injure the party or witness in order to deter him fr o m attending or testifying in federal court. As we explained in Kinney, this r e a d in g is informed by the Supreme Court's decision in United States v. Guest, 3 8 3 U.S. 745, 760 (1966), which held that a parallel criminal statute, 18 U.S.C. § 241, "would not reach every conspiracy that affected a federal right, but only a conspiracy whose `predominant purpose' was to deter or punish the exercise of t h e federal right." Kinney, 367 F.3d at 355 n.22 (quoting Guest, 383 U.S. at 760). That purpose is precisely what is missing in this case. M o n t o y a makes no allegation that FXG or any of the other purported coc o n s p ir a t o r s in any respect desired to deter Montoya's attendance or testimony in the 2004 Litigation in federal court. Indeed, all of the allegations in

M o n to y a 's complaint suggest the opposite conclusion: Montoya filed the lawsuit in state court, and it was FXG that removed the case to federal court; it was FXG t h a t noticed Montoya's deposition, sent him interrogatories, and sought his t e s t im o n y in the federal proceeding; and it was FXG that moved for and obtained

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Case: 09-40288

Document: 00511197518

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Date Filed: 08/09/2010

No. 09-40288 s u m m a r y judgment in the 2004 Litigation in large part on the basis of Montoya's d e p o s it io n testimony. Indeed, Montoya's complaint is more analogous to a retaliatory discharge c la im for the act of filing the lawsuit (in state court), which this section does not a d d r e s s . The complaint does not plausibly allege that there was a "conspir[acy] t o deter, by force, intimidation, or threat, [Montoya] from attending [federal] c o u r t, or from testifying to any matter pending therein, freely, fully, and t r u t h fu lly , or to injure [him] in his person or property on account of his having s o attended or testified," as § 1985(2) requires on its face. The complaint

a lle g a t io n s instead suggest that FXG wanted the 2004 Litigation to be in federal c o u r t and wanted Montoya to testify in those proceedings: FXG brought this p r o c e e d in g into a federal court, procured Montoya's testimony in the federal p r o c e e d in g , and then obtained a federal judgment on the basis of that testimony. Accordingly, without reaching any other issue presented by this appeal, we c o n c lu d e that Montoya has simply not demonstrated that the purported " c o n s p ir a c y " here had the unlawful object proscribed by § 1985(2). IV. Conclusion F o r the reasons stated, we AFFIRM the district court's dismissal.

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