Petition for Writ of Certiorari — Carol M. Kam, Petitioner v. Dallas County, Texas, et al.

Supreme Court briefMay 10, 2022

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App. 1

United States Court of Appeals

for the Fifth Circuit

No. 20-11199

Summary Calendar

Carol M. Kam,

Plaintiff—Appellant,

versus

Dallas County; State of Texas,

Defendants—Appellees.

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 3:18-CV-378

(Filed Jan. 6, 2022)

Before Owen, Chief Judge, and Haynes and Costa,

Circuit Judges.

Per Curiam:*

Kam challenges the district court’s denial of her

Federal Rule of Civil Procedure 60 motion to “vacate”

a two-year old district court order dismissing her claim

* Pursuant to 5th Circuit Rule 47.5, the court has deter

mined that this opinion should not be published and is not prece

dent except under the limited circumstances set forth in 5th

Circuit Rule 47.5.4.

App. 2

pursuant to the Rooker-Feldman doctrine. We AF

FIRM.

The factual and procedural history of this case is

circuitous, to put it mildly, and a thorough discussion

is not helpful for the disposition of this current ap

peal—Kam’s third before this court. In brief, nearly a

decade ago, a Texas state court ruled against Kam in a

dispute concerning her late brother’s trust. Kam ex

hausted her state court appeals and then turned to the

federal courts seeking, in various lawsuits, relief

against the judge who ruled against her, Dallas

County, and the State of Texas. In 2018, the district

court below entered a final judgment dismissing Kam’s

claims against Dallas County and the State of Texas

based on the Rooker-Feldman doctrine. This court af

firmed, agreeing with the district court that her claims

were prohibited under Rooker-Feldman as “a thinlyveiled collateral attack on the state courts’ final judg

ment.”1 After the Supreme Court denied certiorari,

Kam returned to the district court and filed the FRCP

60 motion at issue in the current appeal. She filed her

motion in 2020—over two years after the district court

issued its final judgment. Kam seeks relief from the

1 Kam v. Peyton, 773 F. App’x 784, 785 (5th Cir. 2019) (per

curiam) (unpublished); see also D.C. Ct. of Appeals v. Feldman,

460 U.S. 462 (1983); Rooker v. Fidelity Tr. Co., 263 U.S. 413

(1923); Phinizy v. Alabama, 847 F.2d 282, 284 (5th Cir. 1988).

App. 3

judgment of the district court under FRCP 60(b)(1),

(b)(2), (b)(3), (b)(6), and (d).

Before turning to the FRCP 60 arguments, we

must first address Kam’s governmental liability argu

ments, waiver, and her status as a pro se appellant.

This court typically will not consider arguments that

were not first presented to the district court.2 In her

brief before this court, Kam raises the issue of govern

mental liability under 42 U.S.C. §§ 1983 and 1985.

Kam submitted almost identical briefing to the district

court in support of her motion except for the section

discussing governmental liability. In her briefing be

fore the district court, that section is completely ab

sent. We are “a court of review, not of first view.”3

Because Kam did not raise §§ 1983 and 1985 in her

motion to the district court, she has forfeited those ar

guments on appeal.4

Dallas County argues not only that Kam has for

feited her §§ 1983 and 1985 claims, but also that she

has waived—on a theory of insufficient briefing—all of

her FRCP 60 claims. We disagree in part, however, be

cause in contrast to her §§ 1983 and 1985 arguments,

2 Grogan v. Kumar, 873 F.3d 273, 277 (5th Cir. 2017).

3 Montano v. Texas, 867 F.3d 540, 546 (5th Cir. 2017) (quot

ing United States v. Vicencio, 647 F. App’x 170,177 (4th Cir. 2016)

(per curiam) (unpublished)).

4 See Rollins v. Home Depot USA, 8 F.4th 393, 397 (5th Cir.

2021).

App. 4

Kam did at least raise the issue of FRCP 60 both in her

brief below and in this court. Additionally, while her

briefing is sparse, she is proceeding pro se and we con

strue her brief liberally.5 However, that does not mean

that Kam preserved all of her arguments. Even con

strued liberally, the brief must make some argument.6

Although Kam mentions FRCP 60(d), we agree with

Dallas County that Kam has waived any argument

based on FRCP 60(d) because Kam does nothing more

than make a passing mention of the rule without fur

ther argument. Unlike her FRCP 60(b) argument, Kam

does not elaborate on the potential bases for relief un

der 60(d) at all. Failure to brief an issue adequately on

appeal can constitute waiver of that issue and does so

here.7

Ill

All that remains of Kam’s appeal are her argu

ments drawn from FRCP 60(b)(l)-(3) and (6). We re

view denials of FRCP 60(b) motions for abuse of

discretion.8 A party can seek relief under FRCP

5 Yohey v. Collins, 985 F.2d 222, 225 (5th Cir. 1993).

6 See id. (quoting Weaver v. Puckett, 896 F.2d 126, 128 (5th

Cir. 1990)) (holding that a pro se party’s argument that did not

“contain the reasons he deserves the requested relief” was

waived).

7 See Monteon-Camargo v. Barr, 918 F.3d 423, 428 (5th Cir.

2019) (noting the rule).

8 In re Deepwater Horizon, 988 F.3d 192, 200 n.23 (5th Cir.

2021) (citing Silvercreek Mgmt., Inc. v. Banc ofAm. Sec., LLC, 534

F.3d 469, 471 (5th Cir. 2008)).

App. 5

60(b)(l)-(3) for, among other things: mistake, newly

discovered evidence, or fraud.9 Rule 60(c)(1) requires

movants to seek relief “within a reasonable time—and

for [relief under (b)(l)-(3)] no more than one year after

the entry of the judgment or order or the date of the

proceeding.”10 It is not an abuse of discretion to deny a

FRCP 60(b)(l)-(3) motion on untimeliness grounds.11

Because Kam filed her FRCP 60(b)(l)-(3) motion more

than one year after the 2018 final judgment from

which she sought relief, the district court did not abuse

its discretion in denying her motion as to those three

sections.

Kam’s argument drawn from FRCP 60(b)(6) fares

no better. Relief under Rule 60(b)(6) is available for

“any other reason that justifies relief,”12 but it is avail

able only in “extraordinary circumstances.”13 Even con

struing the brief liberally, it is difficult to tell what

extraordinary circumstances Kam relies on other than

that she alleges the Texas court decision against her

nearly a decade ago is void. But the motion currently

on appeal seeks relief from the federal judgment dis

missing her claim on Rooker-Feldman grounds—not

the Texas court decision, and Kam never claims that

9 Fed. R. Civ. P. 60(b)(l)-(3).

10 Fed. R. Civ. P. 60(c)(1).

11 See Tollett v. City of Kemah, 285 F.3d 357, 369 (5th Cir.

2002) (denying an untimely FRCP 60(b)(l)-(3) motion).

12 Fed. R. Civ. P. 60(b)(6).

13 Priester v. JP Morgan Chase Bank, N.A., 927 F.3d 912, 913

(5th Cir. 2019) (quoting United States ex rel. Garibaldi v. Orleans

Parish Sch. Bd., 397 F.3d 334, 337 (5th Cir. 2005)).

App. 6

the federal judgment is void.14 Kam does contend that

Rooker-Feldman is inapplicable to her claim precisely

because, she argues, the underlying state court deci

sion is void, but this court has already addressed

whether the doctrine applies to her claim and held that

it does.15 This panel may not overrule the decision of a

prior panel “absent an intervening decision to the con

trary by the Supreme Court or this court en banc.”16

In the end, the only potentially extraordinary cir

cumstance Kam’s argument identifies is the alleged in

validity of a state court decision not at issue in the

motion—an argument this court has already rejected.

It was not an abuse of discretion for the district court

to reject such a threadbare and inapposite argument,

especially considering Kam did not offer any new evi

dence of invalidity.17

14 It is for this same reason that, even liberally construed,

Kam’s briefing does not raise an FRCP 60(b)(4) voidness argu

ment.

15 Kam v. Peyton, 773 F. App’x 784, 785 (5th Cir. 2019) (per

curiam) (unpublished).

16 In re Henry, 944 F.3d 587, 591 (5th Cir. 2019) (quoting

United States v. Simkanin, 420 F.3d 397, 420 n.25 (5th Cir.

2005)).

17 Cf. Batts v. Tow-Motor Forklift Co., 66 F.3d 743, 747-48

(5th Cir. 1995) (holding that even a change in decisional law was

not an extraordinary circumstance); see also Thomas v. Stafflink,

Inc., 855 F. App’x 983, 984 (5th Cir. 2021) (per curiam) (un

published) (holding that it was not an abuse of discretion to deny

an FRCP 60(b)(6) motion that repeated arguments from earlier in

the proceedings and otherwise failed to provide evidence in sup

port).

App. 7

Carried with this appeal is a motion by Kam to

supplement the record. The supplementary materials

pertain to a complaint of judicial misconduct that

Kam’s brother filed against the Supreme Court of

Texas. “Generally, we will not enlarge the record on ap

peal with evidence not before the district court.”18 Be

cause the district court did not review these materials,

and there are no extenuating circumstances, we will

not consider them.

For the foregoing reasons, the order of the district

court is AFFIRMED. Kam’s motion to supplement the

record is DENIED.

18 Trinity Indus., Inc. v. Martin, 963 F.2d 795, 799 (5th Cir.

1992).

App. 8

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

CAROL M. RAM,

)

Plaintiff,

CIVIL ACTION NO.

VS.

) 3:18-CV-0378-G (BK)

DALLAS COUNTY, ET AL.,

)

Defendants.

ORDER

(Filed Nov. 18, 2020)

The plaintiff’s “motion for this court to vacate the

prior order dated June 12, 2018” (docket entry 53) is

DENIED.

SO ORDERED.

November 18, 2020.

/s/ A. Joe Fish

A. JOE FISH

Senior United States

District Judge

App. 9