Francis Tejani Kundra v. Derst K. Austin
United States Court of Appeals, Fifth Circuit
489 F.3d 341
Francis Tejani Kundra, immigration detainee #A20661647, moves for leave to proceed in forma pauperis (IFP) on appeal and has filed a brief in support of his appeal. Kundra seeks to challenge the district court‘s dismissal of his
Kundra‘s IFP motion is construed as a challenge to the district court‘s certification. See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir.1997). Kundra does not challenge the district court‘s determination that Austin was not a state actor and, therefore, that issue is abаndoned. See Brinkmann v. Dallas County Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987). Nor did the district court err in determining that Kundra may not bring an action against Austin pursuant to Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), as a Bivens action requires that the defendant be a federal officer acting under color of federal law. See Dean v. Gladney, 621 F.2d 1331, 1336 (5th Cir.1980).
For the first time on appeal, Kundra sеeks permission to name Cynthia Figueroa Calhoun as a defendant and to raise a claim against her for her failure to file his state habeas application. Kundra may not raise a claim for the first time on appeal. See Leverette v. Louisville Ladder Co., 183 F.3d 339, 342 (5th Cir.1999).
Kundra has failed to show that his appeal involves “legal points arguable on their merits (and therefore not frivolous).” See Howard v. King, 707 F.2d 215, 220 (5th Cir.1983) (internal quotation marks omitted). Accordingly, the motion for leave to proceed IFP on appeal is denied, and the appeal is dismissed as frivolous. See Baugh, 117 F.3d at 202 & n. 24; 5TH CIR. R. 42.2. Kundra is warned that the filing or prosecution of frivolous appeals in the future may result in the imposition of sanctions. See Woodson v. Surgitek, Inc., 57 F.3d 1406, 1417 (5th Cir.1995); Clark v. Green, 814 F.2d 221, 223 (5th Cir.1987).
MOTION DENIED; APPEAL DISMISSED; SANCTION WARNING ISSUED.
Blake Drilling & Workover Company, Inc., Defendant-Third Party Plaintiff-Appellant v. Gemini Insurance Company, Third Party Defendant-Appellee.
No. 06-30063.
United States Court of Appeals, Fifth Circuit.
April 23, 2007.
489 F.3d 342
FREEPORT-McMoRAN ENERGY, LLC, Plaintiff v. MIKE MULLEN ENERGY EQUIPMENT RESOURCES, INC., et al., Defendants. Freeport-McMoRan Energy LLC, formerly known as Freeport-McMoRan Sulphur, LLC, Plaintiff v. Mike Mullen, et al., Defendants.
Dean A. Sutherland, Melanie G. Lagarde, Jeansonne & Remondet, New Orleans, LA, for Defendant-Third Party Plaintiff-Appellant.
Before DAVIS, DENNIS, and PRADO, Circuit Judges.
W. EUGENE DAVIS, Circuit Judge:*
Blake Drilling & Workover Co., Inc. (“Blake“) appeals an adverse summary judgment in favor of its insurer, Gemini Insurance Co. (“Gemini“), holding that Gemini owed no duty to defend or indemnify Blake against claims asserted by Freeport-McMoran. We affirm.
I.
In June 2004, Freeport-McMoRan Energy, LLC. (“Freeport“) filed suit against Mike Mullen, Blake and others for monetary recovery and other relief arising out of two contracts for the dismantling and removal of oilfield rigs and equipment. The first contract was entered into on June 13, 2001 (the “2001 PSA“) between Freeport and a company owned by Mullen, Mike Mullen Energy Equipment Re
On January 15, 2002, Freeport and MMEER entered into a similar contract (the “2002 PSA“) to purchase equipment located in Freeport‘s Power Plant (the “Power Plant Equipment“) and a certain rig and related equipment located on Freeport‘s Main Pass 299 Production Platform No. 1 (the “PP-1 Rig“). Freeport alleges that in this transaction MMEER was acting on behalf of itself and others, including Blake, who was an “undisclosed principal.” Under the 2002 PSA, MMEER and the undisclosed principals agreed to pay Freeport $1 million and also allegedly agreed to dismantle and remove the purchased rig and other equipment from the platform.
Freeport alleges that after the execution of the 2001 PSA and the 2002 PSA, Blake removed equipment it purchased from the Control Platform Rig, the PP-1 Rig, the PP-2 Rig and the Power Plant, but did not remove other related equipment required to be removed under the contracts. Freeport claims that as MMEER‘s undisclosed principal with regard tо the 2002 PSA and because it assumed the obligations under the 2001 PSA, Blake is responsible for all performance obligations under the PSAs, and Freeport can enforce those obligations against Blake.
Freeport sought relief under several theories including: (1) declaratory judgment regarding the contractual obligаtions of the parties; (2) specific performance of the contracts; (3) breach of contract; (4) conversion of equipment removed from the rigs due to the defendants’ failure to complete the contract; and (5) unjust enrichment.
Blake‘s assertion of coverage under the Gemini policy fоcuses on Freeport‘s conversion claims. The conversion allegations refer to the “Defendants” generically and allege “the removal of and taking possession of the Power Plant Equipment and other valuable equipment over Freeport‘s objection“, and selling this equipment to third parties and interfering with Freeport‘s ownership and/or possession of the equipment.
Once Blake realized that Freeport was asserting a conversion claim against it, it tendered the suit to its insurer Gemini, which promptly denied coverage. Blake then filed a third party complaint against Gemini. Gemini filed a motion for summary judgment seeking dismissal of the third party demand. Blake filed a cross-motion for summary judgment seeking an order requiring Gemini to defend.
The district court granted Gemini‘s motion for summary judgment and denied Blake‘s motion. The district court read the complaint as follows: “Freeport is accusing Blake of failing to do what it was supposed to do under the PSAs.” Relying on Adams v. Unione Mediterranea Di Sicurta, 220 F.3d 659 (5th Cir.2000), the court accepted Gemini‘s position that a conversion cannot be an accident when having the equipment taken away was something Freeport and Blake bargained for. Blake appeals.
A.
Gemini‘s insurance policy covering Blake is a commercial generаl liability policy. The policy covers damages because of “property damage” if it is caused by an “occurrence” during the policy period. An “occurrence” is defined as “an accident, including continuous or repeated exposure to substantially the same general harmful conditiоns.”
B.
The insurer‘s duty to defend is determined by the factual allegations of the complaint. The insurer must furnish a defense unless the factual allegations of the complaint unambiguously exclude coverage. Cute‘-Togs of New Orleans, Inc. v. Louisiana Health Service & Indemnity Company, 386 So.2d 87, 89 (La.1980).
Gemini argues that it has no duty to defend because all of the allegations of the complaint asserting claims against Blake rest on factual allegations that Blake was an undisclosed principal to the contracts between Freeport and MMEER and/or assumed the obligations of the contracts. Gemini asserts that obligations under a contract cannot be accidental and thus there is no accident or occurrence that could trigger coverage. Gemini also argues that Freeport‘s conversion claim was not accidental because Freeport‘s goal was to rid itself of the equipment. Blake argues that under Louisiana law, an unintentional wrongful taking or conversion is an occurrence оr accident under a CGL insurance policy.
As indicated above, Blake‘s argument for coverage under Gemini‘s policy focuses on Freeport‘s allegations that Blake improperly removed and converted equipment off its platforms. All of Freeport‘s conversion claims against Blake, with the рossible exception of those asserted in paragraph 17 of Freeport‘s complaint, are based on an alleged contractual relationship between Freeport and Blake. Freeport alleges that because Blake and others failed to perform all of their obligatiоns under their contracts with Freeport, Blake and other defendants were not entitled to remove the equipment and they therefore converted that equipment. Blake argues that Freeport‘s conversion claim asserted under paragraph 17 of its complaint concerns Blake‘s removal of equipment that is unrelated to a contract. We turn first to Blake‘s claim of coverage for property allegedly converted under the allegations set forth in paragraph 17 of Freeport‘s complaint.
This requires a consideration of one of the contracts at issue, the 2001 PSA between Freeport and MMEER. This contract called for the removal of rigs and equipment from two platforms, the Control Platform and Main Pass 299 Production Platform No. 2. The rig and equipment to be removed from the Control Platform are referred to as the Control Platform Rig. The rig and equipment to be removed from the Main Pass 299 Productiоn Platform No. 2 are referred to as the PP-2 Rig. According to the complaint, Blake purchased the subject rigs and related equipment from MMEER in 2001.
Blake‘s argument focuses on the allegations in paragraph 17 of the Second Amending and Restated Complaint, which states:
On information and belief, based on information in Mullеn‘s Initial Disclosures, when Blake purchased the PP-2 Rig from MMEER (and/or its undisclosed principal(s)), Blake was aware of, and expressly assumed, the removal obligations under the 2001 PSA.
We disagree with Blake‘s reading of paragraph 17. There is no question that Blake purchased the Control Platform Rig as well as the PP-2 Rig from Freeport. Paragraph 17 of the complaint alleges without limitation that “Blake was aware of and expressly assumed the removal obligations under the 2001 PSA“, which covers both properties. So, contrary to Blake‘s restricted reading of the complaint, Freeport alleged that Blake assumed the contractual obligation to remove the Control Platform Rig along with the other obligations owed to Freeport under the 2001 PSA.
Since the Control Platform Rig is the only equipment Blake points to that was arguably removed and converted without regard for obligations undertaken by Blake in either contract 2001 PSA or 2002 PSA, the question for a decision therefore narrows to whether Blake‘s alleged removal of equipment under the 2001 or 2002 PSAs amounts to an “occurrence” under the policy.
Gemini‘s policy defines an “occurrence” as “an accident, including continuance or repeated exposure to substantially the same general harmful conditions.” In North American Treatment Systems, Inc. v. Sсottsdale Insurance Co., 943 So.2d 429, 444 (La.App. 1 Cir.2006)(internal citations omitted). The court also noted “that ‘accident is defined from the viewpoint of the victim; losses that were unforeseen and unexpected by the victim are the result of an accident.‘” Id. See also Adams v. Unione Mediterranea Di Sicurta, 220 F.3d 659, 678 (5th Cir.2000) (Relying on Black‘s Law Dictionary for the definition of “accident“: as “an event which under the circumstances is unusual and unexpected by the person to whom it happens.“)
Under the allegations of Freeport‘s complaint we agree with the district court that no accident, unexpected event or occurrence took place. Freeport made a bargain tо sell certain equipment and have it removed from its facilities. Under the allegations of the complaint, Blake either assumed the removal obligations or was an undisclosed principal bound by the original contract and thus also bargained for the removal of this equipment. So, from the standpoint of eithеr Freeport, the victim, or Blake, the insured, the removal of equipment subject to their agreement was not an accident. It is true that Freeport alleges that the sale was conditioned on the removal of other equipment. However, Freeport‘s expectation that the defendants would fully cоmply with the contractual terms and remove additional equipment does not transform the removal of equipment the parties bargained to convey into an unexpected event or accident. Based on this analysis, Freeport‘s com
In Adams, we also held that the conversion on which recovery was sought in that case was not an “occurrence” under the policy because it was not accidental or unexpected. Because cоverage was not triggered for property damage coverage under the policy we found it unnecessary to consider policy exclusions. 220 F.3d at 678. Because the facts asserted in Freeport‘s complaint do not allege an occurrence which is required to trigger coverage in the first instanсe, we need not consider exclusionary clauses such as those considered in Alert Centre, Inc. v. Alarm Protection Services, Inc., 967 F.2d 161 (5th Cir.1992), and Cute‘-Togs of New Orleans, Inc. v. Louisiana Health Service & Indemnity Company, 386 So.2d 87 (La.1980).
AFFIRMED.
Leonard FIRTH, Plaintiff-Appellee v. Don McGILL of West Houston, Ltd., formerly known as Don McGill Toyota, Inc., Defendant-Appellant.
No. 06-20439
United States Court of Appeals, Fifth Circuit.
May 3, 2007.
489 F.3d 346
James H. Leeland, Hoover Slovacek, Houston, TX, for Defendant-Appellant.
Before SMITH, WIENER, and OWEN, Circuit Judges.
PER CURIAM:*
Defendant-Appellаnt Don McGill of West Houston, Ltd. (“McGill“) appeals the adverse judgment entered against it and in favor of Plaintiff-Appellee Leonard Firth following a jury trial in which the jury unanimously held that McGill had retaliated against Firth in violation of the Family and Medical Leave Act (“FMLA“).1 On appeal, McGill contends that, on the record, Firth failеd to work the required 1250 hours per year to qualify as an “eligible employee” under the FMLA, and that the jury‘s award of damages was excessive because of Firth‘s failure to mitigate his damages, and because his position with the company had been eliminated. McGill makes these assertions in the wake of a five-day jury trial and makes no claims of trial error, whether evidentiary rulings, jury instructions, or the like. McGill complains that the record does not support the hours worked by Firth to qualify for employee status under the FMLA, yet McGill had the burden of proving such a failure by Firth and obviously failed to bear it. Similarly, McGill‘s complaints about mitigation of dаmages and elimination of