United States Court of Appeals

for the Fifth Circuit

No. 20-30789

Summary Calendar

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opinion should not be published and is not precedent except under the limited 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.

United States Court of Appeals

Fifth Circuit

FILED

June 2, 2021

Lyle W. Cayce

Clerk

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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, 

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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.

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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).

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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).

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