The opinion
Case: 20-30789 Document: 00515883433 Page: 1 Date Filed: 06/02/2021
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
FILED
June 2, 2021
No. 20-30789 Lyle W. Cayce
Summary Calendar Clerk
Michael Colbert,
Plaintiff—Appellant,
versus
Murphy Paul, Baton Rouge Police Chief in his
individual and official capacity; Sharon Weston
Broome, Mayor; Kyle Keller, Baton Rouge Police
Officer; Reggie Garner, Baton Rouge Police Officer,
Defendants—Appellees.
Appeal from the United States District Court
for the Middle District of Louisiana
USDC No. 3:19-CV-1
Before Davis, Stewart, and Dennis, Circuit Judges.
Per Curiam:*
Plaintiff Michael Colbert appeals the district court’s order denying his
motion to file a second amended complaint. Colbert argues that opposing
*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
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No. 20-30789
counsel consented to the amendment and that the district court consequently
should have allowed the amendment under Federal Rule of Civil
Procedure 15. Because we lack jurisdiction over this appeal, we DISMISS.
Colbert filed a complaint and an amended complaint against the
mayor, police chief, and two police officers of the City of Baton Rouge
(“Defendants”), alleging false arrest, malicious prosecution, and failure to
properly train. He contended that on January 1, 2018, he was wrongly
arrested for illegally discharging a firearm and wrongly charged with resisting
arrest. Colbert sought compensatory and punitive damages, as well as
attorneys’ fees and costs, pursuant to 42 U.S.C. §§ 1983, 1985, 1988, and
Louisiana law.
Defendants filed a motion to dismiss pursuant to Rule 12(b)(5) for
insufficient service of process and Rule 12(b)(6) for failure to state a claim.
They argued that they were entitled to qualified immunity as to Colbert’s
individual capacity claims and that Colbert’s allegations did not support
municipal or supervisory liability. Colbert filed an opposition. He also filed a
motion for leave to file a second amended complaint. Noting that Colbert’s
motion for leave to file a second amended complaint was pending before the
magistrate judge, the district court denied Defendants’ motion to dismiss
without prejudice to re-urging it, if warranted, after the magistrate judge
ruled on Colbert’s motion.
In his proposed second amended complaint, Colbert sought to add a
plethora of new defendants and new claims. He proposed to add as
defendants various world leaders, such as the President of the United States,
the Prime Ministers of Canada, the United Kingdom, and Libya, the
Presidents of France, China, Egypt, Liberia, and the Chancellor of Germany,
2
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and various international banks and multinational companies. 1 Furthermore,
Colbert sought to transform his action into a class action, “seeking damages
for international infliction of distress, human rights violations for trafficking
in slavery, breach of fiduciary duties, and Anti-Trust Violations.” He also
sought, inter alia, “compensation for the inverse condemnation of the
[plaintiffs’] immovable property and repayment of royalties received by the
State and federal Government for oil, gas, and mineral activities that have
taken place on the property or in the waters.”
The magistrate judge noted that the claims asserted in Colbert’s
proposed second amended complaint did not arise from the same transaction
or occurrence that provided the basis for the claims in Colbert’s initial and
amended complaints, that the claims would radically alter the scope and
nature of the case, and that this Court had previously determined in another
appeal brought by Colbert’s counsel that the identical proposed claims were
frivolous. The magistrate judge, therefore, denied Colbert leave to file his
proposed second amended complaint.
Colbert requested the district court to review the magistrate judge’s
decision, reverse it, and set a hearing date for a class action certification. The
district court denied Colbert’s request. Colbert subsequently filed a notice of
appeal. 2 Shortly thereafter, the district court was notified that Colbert and
1
Colbert filed numerous summonses with the district court, listing the new
defendants he sought to add, but the summonses were neither executed nor served. Thus,
the proposed new defendants were never notified of Colbert’s second amended complaint
against them.
2
The denial of Colbert’s motion to amend is an interlocutory order, which was not
appealable until the district court issued a final judgment. See 28 U.S.C. § 1291 (courts of
appeals “have jurisdiction of appeals from all final decisions of the district courts”).
Although Colbert filed his notice of appeal prior to entry of any judgment, under Federal
Rule of Appellate Procedure 4(a)(2), the notice is “treated as filed on the date of and after
the entry” of the judgment.
3
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No. 20-30789
Defendants had reached a settlement. The district court entered a 60-day
order of dismissal and then later entered a judgment, dismissing Colbert’s
claims against Defendants “with prejudice” and further ordering the matter
“dismissed in its entirety.”
On appeal, Colbert asserts that he should have been allowed to file his
proposed second amended complaint because counsel for Defendants
consented to the amendment. Colbert, as the appellant, first has the burden
of establishing this Court’s appellate jurisdiction. 3 The order Colbert seeks
to appeal is the denial of a motion for leave to file a second amended
complaint adding numerous new defendants and new claims. Subsequent to
that ruling, however, Colbert settled his claims with Defendants, and the
district court entered a judgment of dismissal.
As this Court has noted, “[e]ssential to the concept of a controversy,
under Article III, is an ongoing adversarial posture between the parties before
the court.” 4 Defendants have filed a letter with this Court stating that they
are not filing a brief in this appeal, unless requested to do so. The letter
highlights that Colbert settled his claims against Defendants. Consequently,
Colbert and Defendants, are no longer in an adversarial position, rendering
the appeal between them moot. 5
Furthermore, because the district court denied Colbert leave to file
the second amended complaint, the new defendants Colbert sought to add
were never made parties to the action, and they did not otherwise make any
3
See Martin v. Halliburton, 618 F.3d 476, 481 (5th Cir. 2010).
4
Talbott Big Foot, Inc. v. Boudreaux (In re Talbott Big Foot, Inc.), 924 F.2d 85, 87
(5th Cir. 1991) (quoting Lamonica v. S.L.E., Inc. (In re S.L.E., Inc.), 674 F.2d 359, 364 (5th
Cir. 1982)).
5
Id. at 87-88 (quoting In re S.L.E., Inc., 674 F.2d at 364).
4
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No. 20-30789
appearance in this suit. They are not parties to this appeal and have not filed
an appellate brief. The only party to this appeal is Colbert. As this Court has
noted, “[a]ll models of cases and controversies assume the presence of at
least two genuinely adversary parties. . . . Judicial power is not exercised to
offer advice to a single party . . . .” 6 Because this appeal presents no case or
controversy as required by Article III, we lack jurisdiction and must dismiss
this appeal.
Finally, as the magistrate judge rightly noted, Colbert’s counsel
attempted to assert similar claims as those raised in Colbert’s proposed
second amended complaint in two other cases this Court reviewed on appeal.
Specifically, we held in Atakapa Indian de Creole Nation v. Louisiana, 7 that the
proposed claims are “wholly without merit,” such that the district court
lacked jurisdiction over them. Three months ago, we again held that similar
claims were frivolous. 8 Because this is the third time counsel for Colbert has
appealed claims previously determined to be frivolous by this Court, we warn
counsel that if he pursues another appeal to assert these claims, he may be
subject to sanctions.
DISMISSED.
6
In re S.L.E., Inc., 674 F.2d at 364 (internal quotation marks and citation omitted).
7
943 F.3d 1004 (5th Cir. 2019).
8
See Atakapa Indian de Creole Nation v. Edwards, 838 F. App’x 124 (5th Cir. 2021).
5