Harrison v. Jones Walker

United States Court of Appeals
                                                                      Fifth Circuit
                                                                   F I L E D
                    UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT                      March 8, 2006
                        _______________________
                                                               Charles R. Fulbruge III
                              No. 05-30370                             Clerk
                            Summary Calendar
                        _______________________

                  MARTIN HARRISON; BARBARA BUCKLIN,

                             Plaintiffs - Appellants-Cross-Appellees,

                                  versus

   JONES, WALKER, WAECHTER, POITEVENT, CARRERE & DENEGRE, doing
business as Jones Walker; A JUSTIN OURSO, III; ANTONIO D. ROBINSON;
NOVELAIRE TECHNOLOGIES LLC

                          Defendants - Appellees-Cross-Appellants
________________________________________________________________

          Appeals from the United States District Court
              for the Eastern District of Louisiana
                           No. 04-1651
_________________________________________________________________

Before JONES, Chief Judge, and WIENER and DeMOSS, Circuit Judges.

PER CURIAM:*

           Appellants Martin Harrison and Barbara Bucklin challenge

the district court’s summary judgment dismissal of their
42 U.S.C.

§ 1983
claim against Appellees Jones Walker and its employees.

Appellees cross-appeal the district court’s dismissal, pursuant to
28 U.S.C. § 1367
(c), of the remaining state law claims. Agreeing

that appellants did not sustain a § 1983 claim, and finding no

abuse of discretion in the court’s refusing jurisdiction over the

     *
            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opinion should not be published and is not precedent except under the limited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.
remaining state law claims, we AFFIRM.

                                I. BACKGROUND

           The facts are undisputed Harrison is a former employee of

NovelAire.   In Louisiana state court, NovelAire sued Harrison for

his alleged use of NovelAire’s materials, resources, and equipment

to develop, for his own commercial gain, an improved design of one

of its products.       NovelAire applied to the state court for an

“Order for Expedited Discovery to Preserve Evidence” based on an e-

mail written by Bucklin that NovelAire claimed evidenced a clear

intent on the part of Harrison and Bucklin to destroy evidence

relevant to NovelAire’s case.          The state court judge granted the

Discovery Order.

           Deputy     Richard    Thomassie,      assigned   to     execute   the

Discovery Order, had a telephone conversation with Angeli Bergeron,

a paralegal employed by Jones Walker, to discuss a convenient

location to meet before execution of the Discovery Order.               At the

meeting, Deputy Thomassie spoke to Antonio Robinson, an associate

attorney with Jones Walker; Carl Steen, a computer expert assigned

by the court; and Bergeron, regarding safety issues during the

execution of the Discovery Order that was about to take place.

Harrison was then served with the signed Discovery Order and

briefly   discussed    the    matter   with    Deputy    Thomassie.     Deputy

Thomassie,   Robinson,       Steen,    and    Bergeron   entered     Harrison’s

residence to execute the Discovery Order.

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             Harrison     filed    suit        in    federal      court,     claiming   a

violation under § 1983 as well as state law claims of trespass,

invasion of privacy, and abuse of rights.                    The parties now appeal

to this court from the district court’s rulings.

                                  II. DISCUSSION

     A.      Summary judgment over § 1983 claim.

             A district court’s grant of summary judgment is reviewed

de novo.     Priester v. Lowndes County,
354 F.3d 414, 419
(5th Cir.

2004).     To prevail on a claim under § 1983, a plaintiff must

establish that: (1) he has been deprived of a right secured by the

Constitution and the laws of the United States, and (2) the

deprivation was caused by a person or persons acting under color of

state law.    Bass v. Parkwood Hospital,
180 F.3d 234, 241
(5th Cir.

1999).     “[A] non-state actor may be liable under [§] 1983 if the

private citizen was a willful participant in joint activity with

the State or its agents.”              Priester,
354 F.3d at 420
.               However,

“[a]llegations that are merely conclusory, without reference to

specific facts, will not suffice.”
Id.
In the instant case, Appellants have taken the deposition

of the only state actor alleged to have been involved in any

conspiracy,     yet     they    have     not     produced        any   evidence    of   a

conspiracy.      The     most     that   can        be    made   of    the   complaint’s

allegations and supporting proof is that Jones Walker and its

employees submitted pleadings to the state court on behalf of a

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client seeking the issuance of a valid Discovery Order.     Once the

state court judge issued the Discovery Order, employees of Jones

Walker accompanied the computer expert during the execution of the

Discovery Order.    These allegations, alone, are insufficient to

establish liability under § 1983.    The Appellees did not engage in

a conspiracy with any state actor, nor did they reach any agreement

with a state actor to commit an illegal act.   The Appellees did not

conspire with the state court judge to secure an order that was

invalid. Moreover, Deputy Thomassie had legal authority to execute

the   Discovery   Order.   Because   appellants’   allegations    of   a

conspiracy are merely conclusory, the district court properly

dismissed with prejudice the § 1983 claim.

      B.   Supplemental jurisdiction over state law claims.

           Appellees for their part contend that the district court

erred in declining to exercise supplemental jurisdiction over the

Appellants’ remaining state law claims.        The district court’s

decision to decline to exercise supplemental jurisdiction over

pendent state law claims is reviewed for abuse of discretion.

Priester,
354 F.3d at 425
.

           The district court dismissed the state claims without

prejudice pursuant to
28 U.S.C. § 1367
(c), holding:

      This court has not addressed the merits of plaintiffs’
      state law claims and there has been no commitment of
      judicial resources to the state law claims that would
      weigh in favor of exercising supplemental jurisdiction.
      Furthermore, any discovery that has been done can be used
      in state court. Accordingly, the court finds that the

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     rule which counsels against the exercise of supplemental
     jurisdiction applies in this situation.

          The general rule is that a district court may decline to

exercise supplemental jurisdiction if the court has dismissed all

claims over which it had pendent jurisdiction.           Sibley v. Lemaire,
184 F.3d 481, 490
(5th Cir. 1999).              In the instant case, the

district court    dismissed   the    §   1983   claim,   leaving   only   the

Appellants’   state   law   claims       to   adjudicate.     Despite     the

inconvenience they may suffer from any continuation of this case in

state court, we cannot find an abuse of discretion.

                              CONCLUSION

          Finding no genuine issue of material fact concerning the

§ 1983 claim, and no abuse of discretion in refusing jurisdiction

over the remaining state law claims, we affirm judgment of the

district court.

                                                                   AFFIRMED.

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