Opposition Brief — Grey v. Dallas Independent Homeschool District, (2008) (No. 51)

0 | (8) FILED

No. 08-51 AUG 0 8 2008

OFFICE OF THE CLERK

SUPREME COURT, U.S.

IN THE

Supreme Court of the Gnited States

TIMOTHY GREY,

Petitioner,

v.

DALLAS INDEPENDENT SCHOOL DISTRICT,

MANUEL VASQUEZ, CEDRIC PORTLEY, DAN CLAXTON,

GARY HODGES, LUIS TAMEZ,

Respondents.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Fifth Circuit

RESPONDENT THE DALLAS INDEPENDENT

SCHOOL DISTRICT’S RESPONSE

IN OPPOSITION TO PETITION

FOR WRIT OF CERTIORARI

ERIC V. MOYE *

VINCENT | MOYE, P.C.

2001 Bryan Street

Suite 2000

Dallas, Texas 75201

(214) 979-7400

* Counsel of Record Counsel for Respondents

oe ER — PSR AR TE HO 2 EE EEO TP OER OES

WiLSON-EPES PRINTING CO., INC. — (202) 789-0096 — WASHINGTON, D.C. 20002

QUESTIONS PRESENTED FOR REVIEW

Timothy K. Grey, (“hereinafter sometimes referred

to as “Petitioner” or “Grey”) submits the following

seven questions which he suggests are worthy of this

Court’s consideration of this case and review:

1..Does Grey’s record raises [sic] a genuine fact

issue as whether [sic] race was a motivating fac-

tor in his termination under Title VII Discrim-

ination? [sic] and the grievance filed on Febru-

ary 15, 2002 and May 2, 2002 in the Dallas

Independent School District Office of Employee

Relation establish [sic] as to whether he engaged

in a protected activity under Title VII Re-

taliation?

2. As a matter of law, did Grey engaged [sic] in a

protected activity under Title VII Retaliation

when he filed internal grievances on February

15, 2002, and May 2, 2002 in the Dallas

Independent School District Office of Employee

Relations.

3. Does Grey’s [sic] as a School Resource Police

Officer with the Dallas Independent School

District under Section 1983—Fourteenth Amend-

ment Liberty Interest have a protected liberty

interest because he was an employee of a gov-

ernmental employer who was publicly discharge

[sic] under stigmatizing circumstances?

4. As a School Resource Police Officer with the

Dallas Independent School District, under Sec-

tion 1983 [sic] Denial of Property Interest, does

Grey have a constitutional protected property

interest in his expectation of continued employ-

ment when the Dallas Independent School

(i)

il

District policy abrogates its rights to terminate

him without cause?

5. Was it an abuse of discretion to deny Grey

{sic] motion to compel when the defendants

withheld discoverable information that would

have change [sic] the outcome and the only ap-

parent justification was to adhere to a scheduling

order that was improperly imposed when Grey

was pro se? |

6. Was it an abuse of discretion to grant Defen-

dants’ motion for protective orders when defen-

dants failed to show good cause, and failed to

provide the certification required by Rule 26 (c)

Fed. R. Civ. P. and the only apparent justifi-

cation was adherence to an improperly imposed

scheduling order?

7. However, when Grey failed to respond to

defendants [sic] summary judgment motions was

caused by [sic] 1) improperly imposed sched-

uling orders, 2) Defendants’ refusal to meet their

discovery obligations, 3) erroneous rulings on

discovery motions, 4) excusable neglect due

to the inability of Grey’s attorney to prepare

the case in the available time, despite Grey’s

diligence, and the needed discovery would have

froduced evidence that would defeat summary

jadgment, should the judginent be vacated to

prevent manifest injustice?

Rather, the Dallas Independent School District,

(hereinafter sometin.2s referred to as “Respondent”

or the “District”) would respectfully show that these

sever are not the proper questions to be addressed

by this Court. Instead, the only proper questions

ili

presented by this litigation in accordance with SUP.

CT. R. 10. are as follows*:

1. Whether the Petitioner has presented

any compelling reasons to grant the Peti-

tion, where the Fifth Circuit’s decision

(affirming the District Court’s granting of

the Dallas Independent School District’s

Motion for Summary Judgment as _ to

Petitioner’s Title VII discrimination claim)

does not conflict with a decision of either

this Court or another Court of Appeals.

2. Whether the Petitioner has presented

any compelling reasons to grant the Peti-

tion, where the Fifth Circuit’s decision

(affirming the District Court’s granting of

the Dallas Independent School District’s

Motion for Summary Judgment as to Peti-

tioner’s retaliation claim) does not conflict

with a decision of either this Court or

another Court of Appeals.

3. Whether the Petitioner has presented

any compelling reasons to grant the Peti-

tion, where the Fifth Circuit’s decision

(affirming the District Court’s granting of

the Dallas Independent School District’s

Motion for Summary Judgment as to Peti-

tioner’s Fourteenth Amendment Due Proc-

* Petitioner apparently raises issues pertaining only to claims

that were brought against Respondent the Dallas Independent

School District in his Petition for Writ of Certivrari. The

Petition does not appear to raise any issues related to claims

brought against the Individual Defendants below. Accordingly,

this Response in Opposition addresses solely the issues as per-

taining to the Dallas Independent School District.

iV

ess claims for alleged violation of Peti-

tioner’s liberty and property interests) does

not conflict with a decision of either this

Court or another Court of Appeals.

4. Whether the Petitioner has presented

any compelling reasons to grant the Peti-

tion, where the Fifth Circuit’s decision

(affirming the District Court’s denial of

Petitioner’s Motion to Compel and granting

of the Dallas Independent School District’s

Motion for Protective Order) does not

conflict with a decision of either this Court

or another Court of Appeals, and where

Petitioner does not claim that the Fifth

Circuit’s ruling implicates an important

federal question that has not been settled

by this Court. .

5. Whether the Petitioner has presented

any compelling reasons to grant the Peti-

tion, where the Fifth Circuit’s decision

(affirming the District Court’s denial of

Petitioner’s Motion to Vacate Judgment)

does not conflict with a decision either of

this Court or another Court of Appeals, and

where Petitioner does not claim that the

Fifth Circuit’s ruling implicates an impor-

tant federal question that has not been

settled by this Court.

v

INTERESTED PARTIES

There are no parties to the proceeding other than

those named in the caption of the case.

TABLE OF CONTENTS

QUESTION PRESENTED FOR REVIEW

INTERESTED PARTIES

TABLE OF AUTHORITIES

BRIEF IN OPPOSITION

OPINION BELOW

A. Proceedings in the District Court

B. Proceedings from the Court of Appeals ...

JURISDICTION

STATUTORY AND OTHER PROVISIONS

INVOLVED

“I hh WD NHK «KM <

~]

8

10

A. The District Court properly granted

Respondent’s Motion for Summary

Judgment

1. Petitioner failed to establish that the

Fifth Circuit's Opinion affirming the

District Court’s granting of Respon-

dent’s Motion for Summary Judg-

ment conflicts with decisions of this

Court or another Court of Appeals

. Petitioner failed to establish that the

Fifth Circuit’s Opinion affirming the

District Court’s granting of Respon-

dent’s Motion for Summary Judg-

ment on Petitioner’s Title VII dis-

crimination claim conflicts with deci-

sions of this Court or another Court

of Appeals

vill

TABLE OF CONTENTS—Continued

3. Petitioner failed to establish that

the Fifth Circuit’s Opinion affirming

the District Court’s granting of

Respondent’s Motion for Summary

Judgment on Petitioner’s Title VII

retaliation claim conflicts with

decisions of this Court or another

CI I iio os scceincncsdbaninetinnants

Petitioner failed to establish that

the Fifth Circuit’s Opinion affirming

the District Court’s granting of

Respondent’s Motion for Summary

Judgment on Petitioner's Fourteenth

Amendment Due Process claims

for alleged violation of Petitioner’s

liberty and property interests con-

flicts with decisions of this Court or

of another Court of Appeals................

S. TRE BIIE vvvcsicsesccicesecevenscconss

b. Property Interest..........ccccccccosescveres

The District Court properly ruled on the

Ee | REE aN ne are Rae eee OO are

iF

The District Court’s rulings on the

discovery motions are reviewed for

abuse of discretion. ................ss::eceeeeeen

The Fifth Circuit properly held that

the District Court did not abuse its

i CLR eR DIO Ena ae ER ore <1 OS ae

The District Court properly denied Peti-

tioner’s Motion to Vacate......................244.

Page

16

18

18

20

21

21

21

24

ix

TABLE OF CONTENTS—Continued

1. The denial of Petitioner’s Motion to

Vacate is reviewed for abuse of

EE RE IL Oa cS ae ERD

2. Petitioner provides no basis for

TI in iceatieahinvnngsbissensinisects

TT acs s cha oieeigcbtoaicss vbenesesecetctes

APPENDIX A—Copy of the District Court’s

Unpublished Memorandum Opinion and

Order dated December 30, 2005......................

APPENDIX B—Copy of the Fifth Circuit’s

Unpublished Per Curiam Opinion dated

I i SID wasnvecsodasysovsecexcennvonceosesncstecnees

APPENDIX C—Copy of the Fifth Circuit’s

Order Denying Petition for Rehearing............

Page

24

24

26

la

x

TABLE OF AUTHORITIES

FEDERAL STATUTES Page

Be Da citnenccccoscssecehenssnssorsencneenes 7

iia on cc cctbsbnescsavtomenssboniens 8, 20

42 U.S.C. § 2OOOKE]) Cf. 9EG. ...0.scccsccccscevecceveees 8

FEDERAL CASES

Abromitis v. Cont’l Cas. Co./CNA Ins. Co..,

No. 03-2425, 2004 U.S. App. LEXIS

23310 (4th Cir. Nov. 5, 2004) «0.0.0.0... 21

Amnesty Am. v. Town of W. Hartford, 288

Fk GE CRN GN s NO UED seve ccsnsniines teecrtcacsesses 13

Audi AG v. D’Amato, 469 F.3d 534 (6th

REESE RLS eee rt poe ac ve Nee 23

Aziz v. Groose, No. 95-2496, 1996 U.S.

App. LEXIS 402 (8th Cir. Jan. 12, 1996). 21

Banks v. E. Baton Rouge Parish Sch. Bd.,

320 F.3d 570 (5th Cir. 2003)..................... 16

Bennett v. Dr Pepper/Seven Up, Inc., 295

F’.3G 806 (Gth Cir, SOOZ)..........ccccscccccccccesee 13

Bishop v. Wood, 426 U.S.341, 96'S. Ct.

2074 (1976)............... EE SPE es eek Re tt 20, 21

Board of Regents v. Roth, 408 U.S. 564, 92

a a 19, 20

Casey v. Albertson’s, Inc., 362 F.3d 1254

i aaa es Se aan 24

Celotex Corp. v. Catrett, 477 U.S. 317, 106

ie eis i 12, 13

Draper v. Coombs, 792 F.2d 915 (9th Cir.

| RENEE NA OE Pi Be SR alert a ee SEE 23

Enwonwu v. Fulton-DeKalb Hosp. Auth.,

No. 07-13498, 2008 U.S. App. LEXIS

10372 (11th Cir. May 12, 2008)................ 21

Firestone v. Firestone, 76 F.3d 1205 (D.C.

i BE acietlscin eileen sibalheivs-alialslsaseietntiicieaihalbeaiocliol 25

xi

TABLE OF AUTHORITIES—Continued

Ford Motor Credit Co. v. Bright, 34 F.3d

322 (5th Cir. 1994)

Grady v. Affiliated Cent., Inc., 180 F.3d

553 (2d Cir. 1997)

Guarino v. Brookfield Township Trustees,

980 F.2d 399 (6th Cir. 1992)

Jones v. Sheehan, Young & Culp, P.C., 82

F.3d 1334 (5th Cir. 1996)

Paul v. Davis, 424 U.S. 693, 96 S. Ct. 1155

(1974)

Kafele v. Lerner, Sampson, Rothfuss,

L.P.A., No. 04-3659, 2005 U.S. App.

LEXIS 28680 (6th Cir Dec. 22, 2005)

Kessee v. Oklahoma, No. 94-6291, 1995

U.S. App. LEXIS 9948 (10th Cir. May 2,

McDonnell Douglas Corp. v. Green, 411

U.S. 792, 93 S. Ct. 1817 (1973)

Muncy v. City of Dallas, 335 F.3d 394 (5th

Cir. 2003)

Richmond v. Oklahoma Univ. Bd. of Re-

gents, No. 97-5181, 1998 U.S. App.

LEXIS 26600 (10th Cir. Oct. 20,1998)

Shaheen v. Naughton, No. 05-6550-cv,

2007 U.S. App. LEXIS 3978 (2d Cir. Feb.

21, 2007)

Schwartz v. Emhart Glass Machinery, Inc.,

No. 07-45284, 2007 U.S. App. LEXIS

18355 (9th Cir. July 27, 2007)

Siegert v. Gilley, 500 U.S. 226, 111 S. Ct.

1789 (1991)

S/N Precision Enters. v. AxsysTechs, Inc.,

No. 07-0315-CV, 2008 U.S. App. LEXIS

11309 (2d Cir. May 27, 2008)

xii

TABLE OF AUTHORITIES—Continued

Page

St. Mary’s Honor Ctr., v. Hicks, 509 U.S.

502, 113 S. Ct. 2742 (19938)............scccccceeee 14, 15

In re Subpoena to Michael Witzel, No. 07-

2286, 2008 U.S. App. LEXIS 14470 (1st

Ge I BIE sicainncdcdsscnibeneinceusehtonseveese 21

Turnage v. Gen. Elec. Co., 953 F.2d 206

Se NN I ica lck cascicadesdidisuadvictssenvecsssees 23

Ullman v. Ohio Bureau of Empl. Servs.,

No. 98-3390, 1999 U.S. App. LEXIS

32226 (6th Cir. Dec. 3, 1999)............... 16, 17, 18

UNITED STATES DISTRICT

COURT CASK(S)

Bookman v. Shubzda, 945 F. Supp. 999

SE I sa cvuvewnchocevseuctilavedsurs 11

FEDERAL RULES

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MISCELLANEOUS

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SE cs a ince dsauwcevenennsnenets 10

Pe ee MMe AUD cncesessoscecoscstsscaecizesssrscevens 22

IN THE

Supreme Court of the United States

No. 08-51

TIMOTHY GREY,

Petitioner,

i

DALLAS INDEPENDENT SCHOOL DISTRICT,

MANUEL VASQUEZ, CEDRIC PORTLEY, DAN CLAXTON,

GARY HODGES, LUIS TAMEZ,

Respondents.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Fifth Circuit

RESPONDENT THE DALLAS INDEPENDENT

SCHOOL DISTRICT’S RESPONSE

IN OPPOSITION TO PETITION

FOR WRIT OF CERTIORARI

COMES NOW the Dallas Independent School

District, Respondent herein, and files this its Oppo-

sition to Petition for Writ of Certiorari filed by

Timothy Grey. This Brief is filed in accordance with

SuP. CT. R. 10. By its opposition, Respondent respect-

fully prays that this Court deny the instant Petition

for the issuance of a writ of certiorari to review the

Judgment of the United States Court of Appeals for

the Fifth Circuit entered on February 14, 2008.

2

OPINION BELOW

A. Proceedings in the District Court

Petitioner filed his Original Complaint in this

matter pro se,’ on May 28, 2004. Contemporaneously

therewith, Petitioner filed his Motion for Leave to

Proceed In Forma Pauperis, which was granted on

July 19, 2004. On August 17, 2004, Respondent filed

its Original Answer, denying all material allegations

and interposing various affirmative defenses. On

that same day, Respondent filed a Motion for Partial

Judgment on the Pleadings.

Petitioner filed his Amended Complaint and Jury

Demand (“Complaint”) on March 31, 2005, asserting

race discrimination and retaliation claims pursuant

to Title VII, alleging violations of 42 U.S.C. § 1983,

42 U.S.C § 1985, as well as the First and Fourteenth

Amendments to the U.S. Constitution. Petitioner

‘also successfully invoked the supplemental juris-

diction of the District Court over a number of state

law claims including breach of contract, conspiracy,

intentional interference with contract, and defamation.

On April 11, 2005, Respondent filed its Answer to

Petitioner’s Amended Complaint, denying all mate-

rial allegations and interposing various affirmative

defenses.

"Contrary to his consistent representations to the District

Court and the Court of Appeals, Petitioner was assisted by duly

licensed counsel through virtually every material stage in this

matter. Indeed, Petitioner admitted in his deposition that he

was assisted throughout the course of this case by counsel in the

preparation of numerous pleadings, in the drafting of discovery

and the preparation for his deposition. That counsel may not

appear on current pleadings in this matter pursuant to an

Order of the Disciplinary Committee of the State Bar of Texas.

3

On May 11, 2005, Respondent filed its Second

Motion for Partial Judgment on the Pleadings.

On June 9, 2005, Petitioner was deposed. John D.

Copeland, Petitioner’s counsel during this matter,

appeared with the Petitioner for said deposition;

however, because Mr. Copeland had not previously

entered an appearance on behalf of Petitioner, the

District Court prohibited Mr. Copeland’s participa-

tion until after he appeared of record. More than two

months later, on August 25, 2005, Mr. Copeland filed

a Notice of Appearance on behalf of Petitioner, four

days before the close of discovery, as mandated by the

Court’s Scheduling Order.

Two days later, on August 26, 2005, Petitioner

noticed a number of depositions and otherwise sought

discovery from the Respondent. On that very same

day, Respondent filed its Motion for Protective Order

seeking relief from these discovery requests. On

August 31, 2005, the Court-imposed discovery dead-

line, Petitioner filed a Motion to Compel Responses to

Plaintiffs Interrogatories and Requests for Produc-

tion. On September 19, 2005, Respondent filed its

Response to Petitioner’s Motion to Compel.

On October 27, 2005, Respondent filed its Motion

for Summary Judgment and Brief in Support thereof.

On that same date, Respondent’s Appendix in

Support of its Motion for Summary Judgment was

also filed. Pursuant to Northern District of Texas

Local Rule 7.1(e), Petitioner’s Response to Respon-

dent’s Motion was due on November 16, 2005.

Petitioner filed no Response in opposition to the

Motion whatsoever, nor did he seek leave to extend

his deadline to respond.

4

On December 30, 2005, the District Court denied

Petitioner’s Motion to Compel and granted Respon-

dent’s Motion for Protective Order.

Also on December 30, 2005 (and approximately

seven weeks after Petitioner’s Response should have

been filed), the District Court entered a Memoran-

dum Opinion and Order granting Respondent’s

Motion for Summary Judgment. (A copy of the

Unpublished Memorandum Opinion and Order is

attached hereto as Appendix A.) Contemporaneously,

the District Court rendered its Judgment that

Petitioner take nothing by his suit and dismissed

Petitioner’s claims with prejudice.

On January 17, 2006, Petitioner (by and through

his counsel) filed his Motion to Vacate the Court’s

Judgment and Supporting Brief. On that same date,

Petitioner also filed his Affidavit in Support thereof,

as well as the Declarations of two individuals,

William Perry and Sophia Graham.

On January 31, 2006, Respondent filed its

Response to Petitioner’s Motion as well as objections

to the evidence attached thereto. On June 14, 2006,

the District Court denied Petitioner’s Motion to

Vacate Judgment.

B. Proceedings from the Court of Appeals

On July 10, 2006, Petitioner filed a Notice of

Appeal of the District Court’s June 16, 2006 Order

denying Petitioner's Motion to Vacate, and also

appealed the Court’s December 30, 2005 Memoran-

dum Opinion and Order granting Respondent’s

Motion for Summary Judgment.

On October 6, 2006, the Fifth Circuit Court of

Appeals issued a briefing notice in this matter

5

pursuant to which Petitioner’s Brief was due to be

filed on November 15, 2006. On November 14, 2006

(the day before the deadline for filing of his Brief),

Petitioner filed a Motion to Stay and to Extend Time

purportedly for the purpose of presenting a Motion

for Relief from Judgment to the District Court

pursuant to FED. R. CIv. P. 60(b).

On November 20, 2006, the Fifth Circuit granted in

part Petitioner’s Motion to Stay pending resolution of

the Motion for Relief. The Fifth Circuit directed that

the appellate proceedings would be stayed until the

later of December 31, 2006 or the date on which the

District Court ruled on the Motion for Relief.

On January 4, 2007, Petitioner finally filed his

Motion for Relief with the District Court. Thereafter,

on January 24, 2007, Respondent filed its Response

thereto. On February 25, 2007, the District Court

denied Petitioner’s Motion for Relief from Judgment.

On March 14, 2007, the Fifth Circuit issued a

notice resuming the briefing schedule. Pursuant to

this notice, Petitioner’s Brief was due on April 13,

2007. On April 16, 2007, Petitioner filed his Motion

to Extend Time for the filing of Petitioner’s Brief

until April 20, 2007. On April 20, 2007, the Fifth

Circuit granted Petitioner's Motion and extended

the deadline for the filing of Petitioner’s Brief to

April 20, 2007, the deadline chosen and requested by

Petitioner.

On May 3, 2007, almost two full weeks after the

expiration of the April 20, 2007 deadline for the

filing of Petitioner’s Brief, the Fifth Circuit sua

sponte dismissed the instant appeal pursuant to Fiftb

Circuit Rule 42 because of Petitioner’s failure to

timely file his Brief.

6

On July 11, 2007, more than two months after the

Fifth Circuit dismissed the instant appeal, Petitioner

filed his third Motion to Extend Time to File Peti-

tioner’s Brief. Contemporaneously therewith, Peti-

tioner transmitted his Petitioner’s Brief for filing.

On July 17, 2007, the Fifth Circuit’s Clerk entered

an Order denying Petitioner’s motion to reinstate the

appeal.

On July 30, 2007, Petitioner filed a Motion for

Reconsideration of the Clerk’s Order Denying the

Motion to Reinstate the case.

On August 17, 2007, this Court granted Peti-

tioner’s Motion for Reconsideration and reopened the

instant appeal. Also on August 17, 2007, the Clerk of

the Fifth Circuit filed Petitioner’s Brief in this

matter.

On November 2, 2007, Petitioner filed a Motion for

Leave to File Corrected Brief and on the same date,

filed Petitioner’s Corrected Brief.

On February 14, 2008, the Fifth Circuit rendered

a per curiam Opinion and Memorandum affirming

the opinion and order of the District Court granting

Respondent’s Motion for Summary Judgment. (A

copy of the Unpublished Per Curiam Opinion and

Memorandum is attached hereto as Appendix B.)

Contemporaneously therewith, the Fifth Circuit

rendered judgment affirming the District Court and

further ordered Petitioner to pay Respondent’s costs

on appeal.

On February 28, 2008, Petitioner filed a Petition

for Panel Rehearing. On March 18, 2008, the Fifth

Circuit denied the Petition for Rehearing as the

Petition was not filed in a timely manner in accord

7

with FED. R. APP. P. 40(a)(1). (A copy of the Order is

attached hereto as Appendix C.)

JURISDICTION

The jurisdiction of this Court has been invoked

pursuant to 28 U.S.C. § 1254(1).

STATUTORY AND OTHER

PROVISIONS INVOLVED

Respondent respectfully directs this Court to SUP.

cr. zx.

10, “Considerations Governing Review on

Certiorari,” which provides as follows:

Review on a writ of certiorari is not a matter of

right, but of judicial discretion. A petition for

a writ of certiorari will be granted only for

compelling reasons. The following, although

neither controlling nor fully measuring the

Court’s discretion, indicate the character of the

reasons the Court considers:

(a)

(b)

a United States court of appeals has entered

a decision in conflict with the decision of

another United States court of appeals on

the same important matter; has decided an

important federal question in a way that

conflicts with a decision by a state court of

last resort; or has so far departed from

accepted and usual course of judicial pro-

ceedings, or sanctioned such a departure by

a lower court, as to call for an exercise of this

Court’s supervisory power;

a state court of last resort has decided an

important federal question in a way that

conflicts with the decision of another state

8

court of last resort or of a United States

court of appeals;

(c) a state court or a United States court of

appeals has decided an important question

of federal law that has not been, but should

be, settled by this Court, or has decided an

important federal question in a way that

conflicts with relevant decisions of this

Court.

- STATEMENT OF THE CASE

Former District employee Timothy Grey filed

claims against the Dallas Independent School Dis-

trict and five of its employees, Manuel Vasquez,

Cedric Portley, Dan Claxton, Gary Hodges, and Luis

Tamez, individually, pursuant to 42 U.S.C. §1983

(“Section 1983”) and 42 U.S.C. §§2000(e) et. seg.

(“Title VII”), alleging unlawful employment practices

on the basis of race and color.

Petitioner subsequently filed an Amended Com-

plaint in which he again asserted claims pursuant to

Section 1983 and Title VII, alleging unlawful prac-

tices on the basis of race. Petitioner also advanced

allegations of retaliation, conspiracy, denial of due

process, breach of contract by the Respondent and

intentional interference with contract on the part of

the individual Defendants. Finally, Petitioner as-

serted that he had been defamed by Defendant

Manuel Vasquez. Specifically, Petitioner alleged that

Respondent has an “unwritten official policy” of

denying Black employees’ grievances while granting

White employees’ grievances. Petitioner also alleged

that Respondent discriminated against him on

the basis of his race by denying his grievance rights

because he is African-American and disciplining

9

him more harshly than similarly situated White

employees.

Petitioner further claimed that the Respondent

retaliated against him by taking him off patrol duties

and assigning him to the headquarters building,

filing written internal complaints against him, plac-

ing him under investigation for illegitimate reasons,

taking away his police credentials, and refusing to

follow its appropriate grievance procedures.

The District Court properly granted Respondent’s

Motion for Summary Judgment for a number of

reasons. Primarily as a result of Petitioner’s failure

to file a response to Respondent’s Motion or to

otherwise proffer any controverting summary judg-

ment evidence whatsoever, Petitioner could not

satisfy his evidentiary burdens related to establish-

ing the claims on which he brought suit. Addition-

ally, Respondent established that each of Petitioner’s

claims failed as a matter of law. Moreover, most of

Petitioner’s claims were barred by limitations.

The District Court also did not abuse its discretion

in denying Petitioner’s Motion to Compel further

discovery responses because Respondent’s previous

discovery responses were both responsive and com-

prehensive. Moreover, the District Court did not

abuse its discretion in granting Respondent’s Motion

for Protective Order considering Petitioner’s last-

minute deposition notices were served literally on the

eve of the expiration of the discovery period.

Finally, the District Court did not abuse its

discretion in denying Petitioner’s Motion to Vacate

because the affidavit and declaration testimony he

sought to introduce into evidence before the District

Court was not “newly discovered” under any inter-

pretation as required pursuant to FED. R. CIv. P. 59(e).

10

REASONS FOR DENYING THE WRIT

A writ of certiorari should be granted only in the

face of compelling reasons. Sup. CT. R. 10. None-

theless, Petitioner fails to provide this Court with

any compelling reasons to grant the Petition. Even a

cursory review of the Petition reveals that it is

nothing more than Petitioner’s personal disagree-

ments with the District Court and the Fifth Circuit’s

decisions. The instant effort before this Court is

Petitioner’s latest improper attempt to re-litigate

Petitioner’s unfounded claims in yet another forum.

Furthermore, a petitioner’s failure to “present with

accuracy, brevity, and clarity whatever is essential to

ready and adequate understanding of the points

requiring consideration is sufficient reason for the

Court to deny the Petition.” SUP. CT. R. 14.4. The

Petition in this case completely lacks the required

accuracy, brevity and clarity of the points Petitioner

requests this Court to consider. Instead, the Petition

is practically a verbatim rehashing of the pleadings

he presented to the District Court and to the Court of

Appeals.

Most substantively, the decisions of the Fifth

Circuit to leave undisturbed the rulings of the

District Court do not conflict with any decision of this

Court or another United States Court of Appeals, nor

do they depart so far from the accepted and usual

course of judicial proceedings so as to warrant this

Court’s exercise of its supervisory power. Addi-

tionally, the decisions do not implicate an important

federal question in a way that conflicts with relevant

decisions of this Court. Sup. CT. R. 10. Petitioner

fails to provide opinions either of this Court or

any other court of appeals which conflict with the

decisions below. Petitioner also fails to show (or even

11

to allege) that the decisions of the District Court and

the Fifth Circuit’s affirmation of same depart from

the accepted and usual course of judicial proceedings.

For each of these reasons, the Petition should be

denied. There is simply nothing in this case worthy

of the time or consideration of this Court.

A. The District Court properly granted Re-

spondent’s Motion for Summary Judg-

ment.

1. Petitioner failed to establish that the

Fifth Circuit’s Opinion affirming the

District Court’s granting of Respon-

deni’s Motion for Summary Judgment

conflicts with decisions of this Court or

another Court of Appeals.

Petitioner contends that his Petition should be

granted because the District Court erred in granting

Respondent’s Motion for Summary Judgment against

Petitioner on his Title VII discrimination claim. At

the outset, it is important to note that Petitioner

makes this contention despite the fact that Petitioner

wholly failed to deliver to the trial court any evi-

dence to support opposition to the Motion. Indeed,

Petitioner failed to make any response to the Motion

for Summary Judgment whatsoever. Thusly, Peti-

tioner completely and without excuse failed to support

his Title VII discrimination claim in the District

Court. While it is true that a pro se litigant’s

response to a summary judgment motion should be

construed liberally, it does not excuse this litigant, as

the party bearing the burden of proof, from setting

forth specific facts supporting his claims. Bookman uv.

Shubzda, 945 F. Supp. 999, 1004 (N.D. Tex. 1999)

(citing Jones v. Sheehan, Young, & Culp, P.C., 82

F.3d 1334, 1338 (5th Cir. 1996)).

12

The District Court noted that Petitioner, while he

responded to Respondents’ two Motions to Dismiss,

completely failed to respond to Respondents’ Motions

for Summary Judgment. Accordingly, the District

Court found that Petitioner failed to come forward

with any summary judgment evidence supporting

his claims or refuting the defenses as raised by

the Respondent.

Of course, the Fifth Circuit had no choice but to

affirm, holding that summary judgment was appro-

priate because Petitioner did not carry his burden to

“designate specific facts showing that there is a

genuine issue for trial.” Appendix B, pp. 19a-20a.

This Court has previously addressed this issue of a

district court’s granting of a motion for summary

judgment where a nonmovant fails to file a response

or any evidence. This Court has held, where [as

here] a nonmovant for summary judgment bears the

burden of proof at trial, that nonmovant must respond

to the motion for summary judgment by going beyond

the pleadings and by his own affidavits, depositions

or answers to discovery designate “specific facts show-

ing that there is a genuine issue for trial.” Celotex

Corp. v. Catrett, 477 U.S. 317, 324; 106 S. Ct. 2548,

2553 (1986). Ignoring this self-evident proposition,

the Petitioner failed to do anything whatsoever in

response. As the responding party to the Motion for

Summary Judgment, Petitioner bears the burden of

proof on his claims. Not only did Petitioner fail to

provide any evidence, Petitioner did not even bother

to file a response.

Not surprisingly, there is uniformity among the

Circuit Courts on this issue. The Fifth Circuit

has expressly held that district courts are under

no obligation to “search the record” for evidence to

13

support the nonmovant’s case. Jones, 82 F.3d at

1338 n.3. At least three other circuits agree. The

Second Circuit, in Amnesty America v. Town of West

Hartford, 288 F.3d 467 (2d Cir. 2002), held that it

agreed with other circuit courts that hold that

district courts are under no obligation to perform an

independent review of the record to find a factual

dispute. Id. at 470. The Sixth Circuit, in Guarino v.

Brookfield Township Trustees, 980 F.2d 399 (6th Cir.

1992), specifically rejected the notion that the trial

court should make its own investigation of the record

and emphasized the importance of requiring a

litigant to file a response. Jd. at 405. The Eighth

Circuit likewise has held that counsel-free status

does not entitle the pro se litigant to disregard the

Federal Rules of Civil Procedure by failing to file a

response to a summary jtiidgment motion. Bennett

v. Dr Pepper/ Seven Up, Inc., 295 F.3d 805, 808 (8th

Cir. 2002). Thus, the decisions below are consistent

with those of this Court and other courts of appeals.

Throughout the Petition, the Petitioner character-

izes facts alleged in his pleadings as “evidence” and

urges this Court to grant Petition based on the

“evidence.” However, following this Court’s previous

holding in Celotex, the Petitioner, as nonmovant,

needed to go beyond the pleadings and identify in

the record specific facts establishing genuine issues

for trial, which Petitioner utterly failed to do. See

Celotex, 477 U.S. at 324. Accordingly, the District

Court applied the proper summary judgment

standard and correctly granted Respondent’s Motion

for Summary Judgment. Petitioner does not provide

any compelling reasons why the Petition should be

granted in this regard.

14

2. Petitioner failed to establish that the

Fifth Circuit’s Opinion affirming the

District Court’s granting of Respon-

dent’s Motion for Summary Judgment

on Petitioner’s Title VII discrimination

claim conflicts with decisions of this

Court or another Court of Appeals.

The District. Court properly granted Respondent’s

Motion for Summary Judgment because Petitioner

failed to establish a prima facie case of Title VII race

discrimination. The District Court held that even if

Petitioner had been able to establish such a prima

facie case, Respondent rebutted any presumption of

discrimination by offering legitimate non-discrimina-

tory reasons for terminating Petitioner’s eimploy-

ment. Again, the Fifth Circuit’s opinion affirming the

District Court is entirely consistent with precedent

set by this Court and followed in other circuits.

Petitioner fails to show that this opinion conflicts

with decisions of any other Court of Appeals.

Petitioner does not provide any other compelling

reason to grant the Petition as to his Title VII

discrimination claim.

This Court has held in McDonnell Douglas Corp. v.

Green, 411 U.S. 792, 802; 93S. Ct. 1817, 1824 (1973),

that to establish a prima facie case of discrimination,

the plaintiff must establish by a preponderance of the

evidence that (1) he is a member of a protected class;

(2) he qualified for the position held; (3) he was

subject to an adverse employment action; and (4) the

position remained open and was filled by a person

in another race. Jd. See also St. Mary’s Honor

Ctr. v. Hicks, 509 U.S. 502, 506; 113 S. Ct. 2742,

2747 (1993).

15

In the instant case, Petitioner failed to provide any

evidence whatsoever to support his Title VII claim

for discrimination. Therefore, the District Court

properly held that Petitioner failed to establish a

prima facie case of discrimination. Petitioner does

not challenge or even attempt to address the District

Court’s ruling that Petitioner failed to establish a

prima facie case of discrimination. Instead, Peti-

tioner merely asserts that the District Court erred

in its ruling on his Title VII discrimination claim

because the two grievances Petitioner filed against

Respondent somehow proved his allegation of inten-

tional discrimination. This is the same unsupported

argument Petitioner made below, which was rejected

each time proffered.

On their face, Petitioner’s arguments are simply

frivolous. For example, Petitioner argues that

“(since petitioner was a young, black, male, it is

reasonable to assume that his complaint was race

discrimination, but it matters not what kind of

discrimination he complained of, it only matters that

he complained of discrimination within the ambit of

the EEOC.” See Petition for Writ of Certiorari, p. 24

(emphasis added). This argument does not even

approach the standard for establishing a Title VII

discrimination claim as held by this Court. More-

over, this Court has expressly provided that it has

“no authority to impose liability upon an employer for

alleged discriminatory employment practices unless

an appropriate fact finder determines, according to

proper procedures, that the employer has unlawfully

discriminated.” St. Mary’s Honor Ctr., 509 U.S. at

514. In this case, the District Court, through its

analysis, determined that Petitioner failed to

establish that Respondent unlawfully discriminated.

Thus, Petitioner’s attempt to request this Court to

16

hold Respondent liable for unlawful discrimination

via a writ of certiorari is improper.

Additionally, the District Court held that even it

had somehow found that Petitioner did establish a

prima facie case of discrimination under Title VII,

Respondents provided ample evidence of legitimate,

non-discriminatory reasons for the adverse employ-

ment action, which Petitioner failed or even

attempted to show were pretext. Thus, the District

Court properly granted summary judgment, and the

Fifth Circuit properly affirmed that decision. These

opinions below are consistent with previous decisions

of this Court. Tellingly, Petitioner does not cite a

single opinion of other courts of appeals that

conflicts, and thus, Petitioner fails to provide any

compelling reasons why this Court should reconsider.

3. Petitioner failed to establish that the

Fifth Circuit’s Opinion affirming the

District Court’s granting of Respon-

dent’s Motion for Summary Judgment

on Petitioner’s Title VII retaliation

claim conflicts with decisions of this

Court or another Court of Appeals.

It is well settled throughout the United States

Courts of Appeals that to establish a claim for Title

VII retaliation, a plaintiff must make a prima facie

case by showing that (1) he engaged in a protected

activity under Title VII, (2) an adverse employment

action occurred, and (3) there was a causal link

that existed between the protected activity and the

adverse action. Banks v. E. Baton Rouge Parish Sch.

Bd., 320 F.3d 570, 757 (5th Cir. 2003); see also, e.g.,

Ullman v. Ohio Bureau of Empl. Servs., No. 98-3390,

1999 U.S. App. LEXIS 32226, *15-16 (6th Cir. Dec. 3,

17

1999), Richmond v. Oklahoma Univ. Bd. of Regents,

No. 97-5181, 1998 U.S. App. LEXIS 26600, *5 (10th

Cir. Oct. 20, 1998). In this case, the District Court

held that Petitioner failed to establish a prima facie

case of Title VII retaliation because he did not prove

that he engaged in a protected activity.

Petitioner argues that he engaged in a protected

activity (1) when he stated to his superiors that, if

they wanted to talk [about his suspended drivers

license], they needed to talk to his attorney, and

(2) when he filed a grievance against his employer.

The District Court and the Fifth Circuit both held

that Petitioner failed to prove that these two alleged

activities are protected under Title VII. The Fifth

Circuit pointed out that his grievance did not men-

tion race or any other allegation of discrimination

violative of Title VII. Petitioner, in a desperate

attempt to show that the grievance was a protected

activity under Title VII, points out that the grievance

stated that other officers who were insubordinate

and disrespectful were not disciplined. As this

response also falls far short of the standard clearly

established, the Fifth Circuit correctly found that

Petitioner did not demonstrate that he engaged in a

protected activity under Title VII.

The Fifth Circuit’s opinion is consistent with at

least one other court of appeals. In Ullman v. Ohio

Bureau of Employment Services, No. 98-3390, 1999

U.S. App. LEXIS 32226, *15-16 (6th Cir. 1999), the

Sixth Circuit found that protected activity under

Title VII was not established where a terminated

employee filed a charge against her employer com-

plaining of the discharge or discipline of fellow

employees for alleged civil rights violations. Jd. at 16

n.6. The Sixth Circuit held that “none of the claims

18

involved opposition to Title VII violations and thus

did not constitute protected activity.” Id. at *16. As

in the Ullman case, Petitioner also complains that

the grievances he filed against Respondent, although

the grievance does not even mention any activities

that fall under the protection of Title VII, constituted

protected activity. However, Petitioner’s claims do

not involve “opposition to Title VII violations” and do

not constitute protected activity. See id. The Fifth

Circuit properly held that Petitioner failed to estab-

lish that he engaged in any protected activity.

Fatally, Petitioner fails to provide any decisions of

this Court or another court of appeals to the contrary.

4. Petitioner failed to establish that the

Fifth Circuii’s Opinion affirming the

District Court’s granting of Respon-

dent’s Motion for Summary Judgment

on Petitioner’s Fourteenth Amendment

Due Process claims for alleged viola-

tion of Petitioner’s liberty and property

interests conflicts with decisions of this

Court or of another Court of Appeals.

a. Liberty Interest

Without a scintilla of factual support, Petitioner

asserted that .ie had liberty and property interests

that were violated by the Respondent. To the

contrary, the District Court correctly ruled that

Petitioner does not have a protected liberty interest

in his reputation or good name. The District Court,

in making this decision, relied on well-settled prece-

dent established by this Court. Its decision was

based on Siegert v. Gilley, 500 U.S. 226; 111 S. Ct.

1789; 114 L. Ed. 2d 277 (1991) and Paul v. Davis, 424

U.S. 693; 96 S. Ct. 1155; 47 L. Ed. 2d 405 (1976). In

19

these cases, this Court expressly held that injury to

reputation or name is not a constitutionally-protected

liberty interest. Jd. Accordingly, the District Court

and the Fifth Circuit’s opinions were entirely con-

sistent with the opinions of this Court.

Here, Petitioner argues that he is not asserting his

Fourteenth Amendment claim on the basis of mere

damage to his reputation, but rather on the basis

that he was a public employee who was discharged on

false charges, directing this Court to Board of

Regents v. Roth, 408 U.S. 564, 573 (1972), in support

of this argument. Roth stands for the proposition

that a public employee has a protected liberty

interest that is violated if he shows that the

governmental employer discharged him on

false charges that might seriously damage his

standing and association in his community

im : r_ disability. /d.

(emphasis added).

Petitioner’s argument is without merit for several

reasons. First, Petitioner did not even attempt to

establish that he was discharged based upon on false

charges. Indeed, Petitioner himself acknowledges

that the grounds for his termination were (1) insub-

ordination, (2) refusal to comply with policies,

(3) conduct causing loss of confidence in the District,

(4) failure to meet acceptable standards of conduct,

and (5) tardiness or excessive absences. He does not

refute these bases for termination or otherwise

declare their falsity. The record is clear Petitioner

does not deny these charges but only asserts that

they are stigniatizing and that he is unable to get

a job elsewhere as a consequence. The District

Court and Fifth Circuit found that the District’s

20

grounds were supported by more than_ sufficient

evidence. Petitioner completely failed to produce

any evidence to the contrary. Petitioner also failed

to provide any evidence that these charges caused

serious damage to his standing and association in the

community or imposed a stigma. Accordingly, Roth is

inapplicable to the facts of this case, and Petitioner

failed to show that he was discharged under false

charges.

b. Property Interest

This Court has held that a Fourteenth Amendment

property interest may arise in one’s employment,

however, the “sufficiency of the claim of entitlement

must be decided by reference to state law.” Bishop v.

Wood, 426 U.S. 341, 344; 96 S. Ct. 2074, 2077; 48 L.

Ed. 2d 684, 690 (1976). Under Texas law, there is a

presumption that employment is at-will and does not

create a property interest in employment unless that

relationship has been expressly altered in one of two

ways: (1) by contract, or (2) by express rules or polli-

cies limiting the conditions under which an employee

may be terminated. Muncy v. City of Dallas, 335

F.3d 394, 398 (5th Cir. 2003).

The District Court held that Petitioner failed to

demonstrate a Fourteenth Amendment protected

property interest in his employment pursuant to

section 1983 because although he alleged in his

complaint that he was employed pursuant to a

written employment contract, he failed to produce the

contract or any evidence of the existence of the

contract. By contrast, the Respondent produced

evidence that Petitioner, as support staff, did not

have a written contract, but was an at-will employee.

Accordingly, the Fifth Circuit properly affirmed the

21

District Court’s decision that Petitioner, as an at-will

employee, did not have a property interest in his

employment. This decision is entirely consistent with

previous decisions of this Court, see e.g., Bishop, 426

U.S. 345-47, and Petitioner fails to provide this Court

with any other compelling reasons as to why Petition

should be granted in this case.

B. The District Court properly ruled on the

discovery motions.

1. The District Court’s rulings on the

discovery motions are reviewed for

abuse of discretion.

Petitioner next asserts that the District Court

erred in ruling on discovery motions. Appellate

courts review a district court’s rulings on discovery

motions for abuse of discretion. See eg., In re

Subpoena to Michael Witzel, No. 07-2286, 2008 U.S.

App. LEXIS 14470, *10-11 (1st Cir. July 7, 2008);

S/N Precision Enters. v. AxsysTechs, Inc., No. 07-

0315-CV, 2008 U.S. App. LEXIS 11309, *2 (2d Cir.

May 27, 2008); Enwonwu v. Fulton-DeKalb Hosp.

Auth., No. 07-13498, 2008 U.S. App. LEXIS 10372, *7

(11th Cir. May 12, 2008); Abromitis v. Cont’l Cas.

Co./CNA Ins. Co., 114 Fed. Appx. 57, 61; No. 03-

2425, 2004 U.S. App. LEXIS 23310, *8 (4th Cir. Nov.

5, 2004); Aziz v. Groose, No. 95-2496, 1996 U.S. App.

LEXIS 402, *6 (8th Cir. Jan. 12, 1996); Kessee v.

Oklahoma, No. 94-6291, 1995 U.S. App. LEXIS 9948,

*4 (10th Cir. May 2, 1995).

2. The Fifth Circuit properly held that

the District Court did not abuse its

discretion.

The Fifth Circuit, in its review of the District

Court’s rulings on the discovery motions (Petitioner’s

22

Motion to Compel and Respondent’s Motion for

Protective Order) that the Petitioner asks this Court

to review, properly found that the District Court did

not abuse its discretion.

Petitioner merely argues that had the District

Court granted his Motion to Compel and denied

Respondent’s Motion for Protective Order, the sub-

stantive outcome below would have been different.

However, this does not impact Petitioner’s claim

here. The undisputed facts are that Petitioner

sought depositions of elected District officials (with

one day’s notice) four days before the close of

discovery. He then filed a Motion to Compel further

discovery from Respondent literally on the eve of the

discovery deadline. The District Court denied Peti-

tioner’s Motion to Compel and granted Respondent’s

Motion for Protective Order based upon the unrea-

sonableness of these requests.”

The Fifth Circuit specifically held that Petitioner's

arguments were without any merit for several rea-

sons. First, the Discrict Court expressly found that

Respondent’s previous discovery responses were

reasonable and complete. The District Court held

that the entry of a protective order due to impending

* Petitioner erroneously asserts that Northern District of

Texas “Local Rule 16.1(f) exempts pro se cases fro [sic] the

scheduling and case management procedures of Rule 16(b)” of

the Federal Rules of Civil Procedure. (See Petition, p. 11.) N.D.

TEX. L.R. 16.1(f) provides that pro se plaintiff cases are exempt

from the scheduling and planning requirements of FED. R. CIv.

P. 16(b). However, FED. R. Civ. P. 16(b) exempts pro se plain-

tiffs only from appearing at scheduling conferences or having to

consult with the district or magistrate judge regarding the

scheduling order. Jd. It does not exempt the pro se plaintiff

from complying with the scheduling order once issued by the

district or magistrate judge. See id.

23

discovery deadlines is not an abuse of discretion.

See Turnage v. Gen. Elec. Co., 953 F.2d 206, 209 (5th

Cir. 1992).

Other circuit courts agree with the Fifth Circuit’s

review of the District Court’s rulings on the discovery

motions. The Second Circuit has held that “the

management of discovery lies within the sound

discretion of the district court, and the court’s rulings

on discovery will not be overturned on appeal without

abuse of discretion.” Grady v. Affiliated Cent., Inc.,

130 F.3d 553, 561 (2d Cir. 1997). The Sixth and

Ninth Circuits follow the rule that district courts

have wide discretion to conclude discovery. See, e.g.,

Audi AG v. D’Amato, 469 F.3d 534, 541-42 (6th Cir.

2006); Draper v. Coombs, 792 F.2d 915, 924 (9th Cir.

1986). As in this case, the Second Circuit has held

that the denial of discovery requests propounded by

a recalcitrant litigant on the eve of the discovery

deadline is not an abuse of discretion. See Shaheen v.

Naughton, 222 Fed. Appx. 11; No. 05-6556-CV, 2007

U.S. App. LEXIS 3978 at *2 (2d Cir. Feb. 21, 2007).

Thus, the argument that any further discovery

responses from Respondent would have changed the

outcome is an unfounded and irrelevant conclusion,

and the District Court below was well within its

discretion to make the discovery rulings that it did.

Petitioner does not provide this Court with any

compelling reason why Petition should be granted

on the District Court’s discovery rulings. Petitioner

likewise fails to point to any opinions of this Court or

another court of appeals which conflict with the

decision of the Fifth Circuit in this case. The Fifth

Circuit correctly applied the abuse of discretion

standard to the District Court’s rulings, and Petitioner

provides this Court with absolutely no compelling

reason why the Petition should be granted.

24

C. The District Court properly denied

Petitioner’s Motion to Vacate.

1. The denial of Petitioner’s Motion to

Vacate is reviewed for abuse of

discretion.

The denial of a motion to vacate pursuant to FED.

R. Civ. P. 59(e) is also reviewed for abuse of

discretion. Ford Motor Credit Co. v. Bright, 34 F.3d

322, 324 (5th Cir. 1994); see, e.g., Schwartz v. Emhart

Glass Machinery, Inc., 235 Fed. Appx. 503; No. 07-

55281, 2007 U.S. App. LEXIS 18355, *1-2 (9th Cir.

July 27, 2007) (holding that orders denying or grant-

ing motion to vacate are reviewed for abuse of discre-

tion) (citing Casey v. Albertson’s, Inc., 362 F.3d 1254,

1257 (9th Cir. 2004)). Here, the District Court

did not review the additional materials Petitioner

submitted with his Motion to Vacate because they

were not “newly discovered” as required by Rule

59(e), as they were fully available evidence at the

time of summary judgment (including Petitioner’s

own declaration).

2. Petitioner provides no _ basis _ for

reconsideration.

Petitioner fails to provide any reasons as to why he

believes the District Court abused its discretion in

denying Petitioner’s Motion to Vacate. Petitioner

argues only that the judgment should be vacated

because Petitioner’s failure to file a response to

Respondent’s Motion for Summary Judgment was

caused by:

¢ improperly imposed scheduling orders;

e Defendants’ refusal to meet their discovery

obligations;

25

e erroneous rulings on discovery motions; and

e excusable neglect due to the inability of Grey’s

attorney to prepare the case in the available

time.

None of these arguments are supported by any

evidence or the record itself.

Indeed, the Fifth Circuit in this case held that Rule

59(e) motions to vacate or amend a judgment “must

clearly establish either a manifest error of law or fact

or must present newly discovered evidence.” See

Appendix B, p. 25a. None of the reasons offered by

Petitioner establish any manifest error of law or fact.

Moreover, the District Court specifically found that

the evidence attached by Petitioner to his Motion to

Vacate was available at time the Motion for Sum-

mary Judgment was pending, and therefore should

have been a part of a timely-made response to the

summary judgment. Thusly, it did not constitute

“newly discovered evidence.”

The Fifth Circuit’s opinion is completely consistent

with the standards governing a motion to vacate in

other circuit courts. For example, in Kafele v. Lerner,

Sampson, Rothfuss, L.P.A., 161 Fed. Appx. 487; No.

04-3659, 2005 U.S. App. LEXIS 28680 (6th Cir. Dec.

22, 2005), the Sixth Circuit, in agreement with the

Ninth Circuit, affirmed the district court’s denial of a

motion to vacate because there was not “previously

unavailable evidence, clear crror of law, or manifest

injustice.” Jd. at *10. (citing Firestone v. Firestone,

76 F.3d 1205, 1208 (D.C. Cir. 1996)). Petitioner fails

to guide this Court to a single decision of this Court

or another court of appeals to the contrary.

Accordingly, this Petition should be denied.

26

CONCLUSION

None of the questions raised by this matter present

any compelling reasons to grant the Petition. Peti-

tioner fails to present any compelling reason for this

Court to review the Fifth Circuit’s decision affirming

the District Court’s granting of Respondent’s Motion

for Summary Judgment. Petitioner likewise fails to

give any compelling reason for this Court to review

the Fifth Circuit’s decision affirming the District

Court’s rulings on the discovery motions. Finally,

Petitioner does not present any compelling reason for

this Court to review the Fifth Circuit’s decision

affirming the District Court’s denial of Petitioner’s

Motion to Vacate. For the foregoing reasons, Re-

spondent prays that this Honorable Court decline to

issue a writ of certiorari in the instant matter.

Respectfully submitted,

ERIC V. MOYE *

VINCENT | MOYE, P.C.

2001 Bryan Street

Suite 2000

Dallas, Texas 75201

(214) 979-7400

* Counsel of Record Counsel for Respondents

Of Counsel:

DAWN KAHLE DOHERTY

EUNICE E. KIM

VINCENT | Moye, P.C.

2001 Bryan Street

Suite 2000

Dallas, Texas 75201

(214) 979-7400

27

Of Counsel for Respondent

Manuel Vasquez:

TODD R. HIXON

HAAKON T.. DONNELLY

BELLINGER & DEWOLF, L.L.P.

10,000 N. Central Expressway,

Suite 900

Dallas, Texas 75231

(214) 954-9540