Rodolfo Munoz v. U.S. Xpress, Inc.

Filing 920100218

Case: 09-50446

Document: 00511028599

Page: 1

Date Filed: 02/17/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
No. 09-50446 Summary Calendar February 17, 2010 Charles R. Fulbruge III Clerk

RODOLFO RIVERA MUNOZ, Plaintiff-Appellant v. U.S. XPRESS, INC., Defendant-Appellee

Appeal from the United States District Court for the Western District of Texas USDC No. 5:08-CV-210

Before KING, STEWART, and HAYNES, Circuit Judges. PER CURIAM:* Rodolfo Rivera Munoz moves this court for leave to proceed in forma pauperis (IFP) in this appeal from the district court's dismissal with prejudice of his 42 U.S.C. § 2000e suit. The district court dismissed the suit because Munoz violated the court's discovery order by failing to answer questions during his deposition. The district court also denied Munoz leave to proceed IFP on appeal, finding that the appeal was not taken in good faith.

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.

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Case: 09-50446

Document: 00511028599 Page: 2 No. 09-50446

Date Filed: 02/17/2010

Munoz's failure to cooperate during his deposition was in direct contravention of the district court's discovery order and prejudiced the opposing party by impeding its ability to gather information regarding his claim. As an attorney, Munoz was aware of his discovery obligations. Moreover, the

imposition of a lesser sanction had failed to deter Munoz from disobeying the court's previous orders. Munoz has, therefore, failed to show that the district court abused its discretion in dismissing the suit as a sanction for violating its discovery order. See F ED. R. C IV. P. 37(b)(2)(A)(v); FDIC v. Conner, 20 F.3d 1376, 1380-81 (5th Cir. 1994). Given the foregoing, Munoz has failed to show that his appeal involves "legal points arguable on their merits." Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983) (internal quotation marks and citation omitted). Accordingly, his motion to proceed IFP on appeal is denied, and his appeal is dismissed as frivolous. See Baugh v. Taylor, 117 F.3d 197, 202 & n.24 (5th Cir. 1997); 5 TH C IR. R. 42.2. MOTION DENIED; APPEAL DISMISSED.

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