Cavazos v. JP Morgan Chase Bank National Ass'n

388 F. App'x 398

5th Cir.

2010

Check Treatment

Docket

James CAVAZOS, Plaintiff-Appellant v. JP MORGAN CHASE BANK NATIONAL ASSOCIATION; Barrett Daffin Frappier Turner & Engle L.L.P.; EMC Mortgage Corporation; Mers; Southstar Funding LLC; Merscorp Incorporated, Defendants-Appellees.

No. 09-20709

United States Court of Appeals, Fifth Circuit.

July 22, 2010.

Id. (citing Beanal v. Freeport-McMoran, Inc., 197 F.3d 161, 165 (5th Cir.1999)). Thus, the Acuna court concluded that the district court did not commit an abuse of discretion by dismissing plaintiffs’ claims for failure to comply with the Lone Pine order. Id. at 341.

The Dier plaintiffs contend that this case is distinguishable from Acuna because here the plaintiffs have alleged precise injuries and both the court and Merck are on notice of the nature of the injuries and the injuries’ relationship to Merck‘s conduct. These grounds are insufficient, however, to warrant bypassing the clear holding in Acuna that it is within a court‘s “discretion to take steps to manage the complex and potentially very burdensome discovery that the cases would require.” Id. at 340.

2. Requirement of Proof of Physical Injury for Emotional Distress Claims

The Dier plaintiffs also argue that PTO 28 was improper because expert testimony is not required for claims of negligent infliction of emotional distress under New York law.⁴ But the Dier plaintiffs all pleaded physical injuries, and none attempted to withdraw those physical injury claims. Thus, PTO 28 would apply regardless of whether the Dier plaintiffs might have had a viable negligent infliction of emotional distress claim along with their physical injury claims.

III. CONCLUSION

For the foregoing reasons, we AFFIRM the judgment of the district court.

James Cavazos, Houston, TX, pro se.

William Lance Lewis, Esq., Marcie Lynn Schout, Quilling, Selander, Cummiskey & Lownds, P.C., Dallas, TX, for JP Morgan Chase Bank National Association,

Steven A. Leyh, John Peyton Barnes, Leyh & Payne, L.L.P., Houston, TX, Shelly Douglass, Barrett, Daffin, Frappier, Turner & Engel, Addison, TX, for Barrett Daffin Frappier Turner & Engel LLP.

William Lance Lewis, Esq., Marcie Lynn Schout, for Merscorp Inc., EMC Mortgage Corp., Mers.

Before SMITH, PRADO, and HAYNES, Circuit Judges..

PER CURIAM: *

James Cavazos appeals the judgment dismissing, for lack of jurisdiction, his mortgage fraud suit against the defendants. Cavazos‘s initial brief failed to attempt to demonstrate error in the district court‘s determination that he was without standing to sue.¹ Cavazos‘s failure to identify any error in the district court‘s analysis on this issue constitutes a failure to appeal that ruling. See Brinkmann v. Dallas County Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir.1987). As are other litigants, a pro se party is required to brief arguments in order to preserve them. Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir.1993). Consequently, we deem Cavazos‘s appeal to have been abandoned. His effort to address standing in his reply brief comes too late, as we will not consider arguments raised for the first time in a reply brief.² United States v. Jackson, 426 F.3d 301, 304 n. 2 (5th Cir.2005) (“Arguments raised for the first time in a reply brief, even by pro se litigants ... are waived.“) Accordingly, the judgment below is affirmed; the pending motion to strike Cavazos‘s record excerpts is denied as moot.

AFFIRMED; MOTION TO STRIKE RECORD EXCERPTS DENIED AS MOOT.

Notes

Cavazos contended only that a “Notice of International Commercial Claim in Admiralty Administrative Remedy” he sent to the defendants around the time this case was removed constitutes proof of his claimed ownership in the property due to “estoppel by acquiescence.” To the extent that this constitutes a challenge to the district court‘s standing determination, it is frivolous.

In any event, Cavazos‘s reply brief is wholly lacking in any legal citation, relying instead on quoting Latin maxims which in no way address the specific reasoning of the district court.

“[T]he substantive law of each plaintiff‘s home jurisdiction must be applied to his or her respective claims.” .

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.