The opinion
Case: 24-20011 Document: 37-1 Page: 1 Date Filed: 09/17/2024
United States Court of Appeals
for the Fifth Circuit
____________
United States Court of Appeals
Fifth Circuit
No. 24-20011
Summary Calendar FILED
____________ September 17, 2024
Lyle W. Cayce
Curtis Wiggins, Clerk
Plaintiff—Appellant,
versus
Poyner Spruill L.L.P.,
Defendant—Appellee.
______________________________
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:20-CV-4048
______________________________
Before Davis, Smith, and Higginson, Circuit Judges.
Per Curiam: *
Plaintiff-Appellant Curtis Wiggins, appearing pro se and in forma
pauperis, sued Defendant-Appellee Poyner Spruill L.L.P., a North Carolina
law firm serving as counsel to his former employer, Golden Corral
Corporation. Wiggins alleged claims of defamation and fraud arising from
Poyner Spruill’s actions in prior proceedings before a district court and the
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*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
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No. 24-20011
U.S. Equal Employment Opportunity Commission (“EEOC”). The district
court in these proceedings granted summary judgment in favor of Poyner
Spruill. On appeal, we must decide whether an employer’s court conduct or
position statement to the EEOC exposes its counsel to liability under Texas
state law. The district court answered negatively under Texas’s “judicial-
proceeding privilege.” We agree and AFFIRM.
I.
Wiggins worked at a Golden Corral restaurant in Houston, Texas.
After his employment was terminated, Wiggins filed a charge of
discrimination with the EEOC. On November 18, 2016, Golden Corral,
through a Poyner Spruill partner, responded to the charge with a five-page
position statement setting forth its rationale for the termination. The EEOC
dismissed Wiggins’s charge on October 24, 2017, and notified Wiggins he
had 90 days to pursue his discrimination claim in court.
And pursue he did. Wiggins first filed suit against Golden Corral in
Texas state court, asserting a claim for defamation. Golden Corral, through
Poyner Spruill and local counsel Germer, P.L.L.C., removed the case to
federal district court, where Wiggins amended his complaint to add a
discrimination claim under Title VII. Poyner Spruill won summary judgment
on both of Wiggins’s claims. This court affirmed—first, because Wiggins
could not prove “publication” of a defamatory statement and, second,
because Wiggins could not establish that Golden Corral’s “legitimate, non-
discriminatory reason” for the termination was pretextual. 1 The Supreme
Court denied Wiggins’s petition for certiorari on October 5, 2020. 2
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1
Wiggins v. Golden Corral Corp., 802 F. App’x 812 (5th Cir. 2020) (per curiam).
2
Wiggins v. Golden Corral Corp., 141 S. Ct. 380 (2020).
2
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On October 16, 2020, Wiggins filed a second suit in Texas state court,
this time against Poyner Spruill. In this second suit, Wiggins charged Poyner
Spruill with “Defamation per se and Slander per se,” alleging the position
statement to the EEOC and Poyner Spruill’s provision of it to local counsel
constituted false, defamatory publications. Poyner Spruill removed the case
to federal court on diversity grounds, after which Wiggins amended to add a
fraud claim. According to Wiggins, David Woodard, the Poyner Spruill
lawyer who defended Golden Corral before the EEOC and in the first
lawsuit, misrepresented his status as a member of the Texas Bar. Wiggins, in
turn, allegedly relied on that representation in deciding how to proceed
against Golden Corral in the first instance. Though not entirely clear,
Wiggins also seemed to contend Woodard improperly influenced the EEOC
and the court in the original action to rule against Wiggins.
Poyner Spruill answered and asserted affirmative defenses, including
one that reads, “Any statements Plaintiff alleges were defamatory are
protected by absolute privilege/immunity and/or common-law qualified
privilege/immunity.”
Both sides filed summary-judgment motions. The district court
granted Poyner Spruill’s under the judicial-proceeding privilege and denied
Wiggins’s. Citing two opinions from the same federal district, the court held
that “EEOC proceedings qualify as quasi-judicial for purposes of the
absolute privilege doctrine.” As Wiggins’s suit relied solely on Poyner
Spruill statements to the EEOC, to its co-counsel, and to the court in the
first lawsuit against Golden Corral, the court reasoned that none of Wiggins’s
claims could proceed, as the privilege controls no matter “the label placed on
the claim.” Wiggins timely appealed.
3
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II.
We review the grant or denial of a motion for summary judgment de
novo, applying the same standard as the district court. 3 Summary judgment is
required where “the movant shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.” 4
A.
Wiggins raises seven issues on appeal. We address just one, which is
dispositive: whether the judicial-proceedings privilege under Texas law
absolutely immunizes Poyner Spruill from Wiggins’s defamation and fraud
claims. 5 Like the district court, we agree the judicial-proceedings privilege
immunizes Poyner Spruill from each of Wiggins’s claims, though we arrive
at that place by traveling a slightly different route. Rather than conclude
EEOC proceedings are “quasi-judicial” in nature, we hold that Poyner
Spruill’s correspondence to the EEOC was “preliminary to” Wiggins’s first
suit against Golden Corral, consistent with the Texas Supreme Court’s
pronouncements about steps “preliminary to” judicial proceedings.
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3
Miller v. Michaels Stores, Inc., 98 F.4th 211, 215 (5th Cir. 2024).
4
Fed. R. Civ. P. 56(a).
5
Wiggins’s other issues are: the district court “adopted” Poyner Spruill’s
pleadings; failed to consider Wiggins’s own summary-judgment motion; “manifested
bias”; violated due process by entering judgment before a status conference; abused its
discretion during “Status Conference Hearings”; and failed to find facts contrary to
Poyner Spruill’s affirmative defenses. We carefully considered each of these issues given
the latitude allowed pro se litigants such as Wiggins and hold none has merit. Grant v.
Cuellar, 59 F.3d 523, 524 (5th Cir. 1995).
4
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B.
The district court decided the case under Texas law and neither party
urged otherwise. We agree Texas law controls: Where, as here, a federal
court exercises diversity jurisdiction over state-law claims, we must apply
state substantive law as expressed by the legislature and final decisions of the
state’s highest court. 6
C.
The Texas Supreme Court recently considered the scope of Texas’s
judicial-proceeding privilege in Landry’s, Inc. v. Animal Legal Defense Fund,
where one side allegedly defamed another by submitting to Plaintiffs and a
federal agency a mandatory pre-lawsuit notice letter requisite to filing suit. 7
Its opinion explains that Texas’s judicial-proceedings privilege exists
to protect the “open and vigorous litigation of matters inside the
courtroom.” 8 To that end, communications made “in the due course of a
judicial proceeding will not serve as the basis of a civil action for libel or
slander, regardless of the negligence or malice with which they are made.” 9
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6
See Rogers v. Corrosion Prods., Inc., 42 F.3d 292, 295 (5th Cir. 1995); Erie R. Co. v.
Tompkins, 304 U.S. 64, 78 (1938). Neither party raised the law of Poyner Spruill’s domicile
(North Carolina) as possibly controlling. Even assuming a conflict between the two,
Texas’s choice-of-law rules look for the “most significant relationship,” which strongly
favors Texas law here: (i) Wiggins’s injury, if any, occurred in Texas; (ii) the allegedly-
defamatory letter was published in Houston; (iii) Wiggins is a Texas domiciliary; and (iv)
the parties’ “relationship” revolves around Wiggins’s termination from a Texas restaurant
and subsequent suit in Texas state and federal courts. Ellis v. Trustmark Builders, Inc., 625
F.3d 222, 225 (5th Cir. 2010); Hughes Wood Prods., Inc. v. Wagner, 18 S.W.3d 202, 205 n.1
(Tex. 2000).
7
631 S.W.3d 40 (Tex. 2021).
8
Id. at 49.
9
Id. at 46 (internal quotation omitted).
5
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The privilege is “absolute” and prohibits “any tort litigation based on the
content of the communication.” 10
The privilege extends to statements made “preliminary to” judicial
proceedings and to statements made during “quasi-judicial” proceedings. 11
Regarding “preliminary-to” communications, the “statement itself must
bear some relation to a proceeding” and not merely address the same “subject
matter.” 12 As with other legal privileges, a party may lose the judicial-
proceedings privilege by repeating the statement outside the ambit of the
privilege’s protection. 13
The court agreed the mandatory pre-lawsuit notice letter and its
transmission to Plaintiffs and a federal agency were absolutely privileged as
“preliminary to” a lawsuit under the applicable federal law’s 60-day notice
requirement: both were “necessary to set the judicial machinery in
motion.” 14 But it held that protection did not extend to Defendants’
subsequent republication to the press and online. 15
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10
Id. (internal quotation omitted); see also Matta v. May, 118 F.3d 410, 415 (5th Cir.
1997).
11
Id. at 46-47.
12
Id. at 49 (internal quotation omitted, emphases in original).
13
Id.
14
Id. at 50 (internal quotation omitted).
15
Id. at 50-51. The opinion states that delivery of the notice letter as the federal
statute required was not “at issue” in the case. In our view, that does not render its analysis
obiter dictum. Rather, the court first had to assess whether Defendants ever held the
privilege before then concluding they lost it through unprotected publication online and to
the press.
6
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The court cited as support Krishnan v. Law Offices of Preston
Henrichson, P.C. 16 There, a patient’s lawyer sent a statutorily-mandated pre-
suit notice to a physician without further dissemination. The patient later
chose not to sue the physician, so the physician sued the patient for
defamation. The court held the letter was absolutely privileged as preliminary
to a malpractice suit and dismissed the claims as a matter of law. 17
D.
1.
With Landry’s guidance, we turn to the facts here. Wiggins states
more than once that his defamation and fraud claims rest, in part, on
statements Poyner Spruill made to the district court or to co-counsel in the
original Golden Corral litigation. 18 Statements to a court or to co-counsel
during litigation are absolutely protected under Texas law. And contrary to
Wiggins’s argument otherwise, Poyner Spruill did not need to be admitted
pro hac vice to practice before a Texas court to enjoy this protection. The
district court correctly dismissed those claims as communications made in
the due course of judicial proceedings.
2.
Wiggins argues that statements to the EEOC do not qualify as quasi-
judicial proceedings. We need not consider that argument because the
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16
83 S.W.3d 295 (Tex. App.—Corpus Christi-Edinburg 2002, pet. denied).
17
Id. at 302.
18
For example: “Whether ‘The Lie’ submitted by Woodard to the district court,
March 15, 2019, is absolutely privileged or Fraud Upon The Court?” “[A]s it pertains to
‘The Lie’ submitted by Woodard to the district court, March 15, 2019[.]” “The Lie is in
relation to fraud upon the court … published by Woodard to the district court ….”
“Moreover, The Lie, submitted to the district court was also the single act by Woodard[.]”
7
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statements were made in a proceeding “preliminary to” a court proceeding.
That is sufficient under Landry’s. Much like the federal law at issue in
Landry’s, a party may not litigate a Title VII discrimination claim without
first filing a charge with the EEOC, which the EEOC is bound to
investigate. 19 Part and parcel of that investigation is hearing from the other
side, whether through counsel or not. 20
We conclude that Poyner Spruill’s letter responding to Wiggins’s
charge of discrimination was a communication preliminary to a judicial
proceeding (that is, Wiggins’s first suit against Golden Corral) and absolutely
privileged under Texas law. 21
AFFIRMED.
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19
42 U.S.C. §§ 2000e-5(b); 2000e-5(f).
20
While “abuse of the absolute privilege is possible,” it is “limited because the
speaker will generally still be subject to the risk of criminal prosecution for perjury or
obstruction of justice,” Shell Oil Co. v. Writt, 464 S.W.3d 650, 655 (Tex. 2015), as well as
subject to the judicial mechanisms of sanctions, contempt, and attorney disciplinary
proceedings, cf. Cantey Hanger, LLP v. Byrd, 467 S.W.3d 477, 482 (Tex. 2015). Likewise, a
material misrepresentation in the EEOC context could give rise to criminal liability under
18 U.S.C. § 1001 depending on the circumstances.
21
This result conforms to prior decisions by federal district courts. See Dick v. J.B.
Hunt Transp., Inc., 772 F. Supp. 2d 806, 823 (N.D. Tex. 2011); Davis v. ComputerShare
Loan Servs., No. 4:23-CV-1542, 2023 WL 9005670, at *4 (S.D. Tex. Nov. 8, 2023), report
and recommendation adopted, 2023 WL 9007275 (S.D. Tex. Dec. 27, 2023); Condon v.
Hunting Energy Servs., L.P., No. CV H-04-3411, 2006 WL 8445214, at *5 (S.D. Tex. Jan.
27, 2006), report and recommendation adopted, 2006 WL 8445209 (S.D. Tex. Mar. 28,
2006).
8