Pursuant to 5TH CIR. R. 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 CIR.

R. 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 09-40431

Summary Calendar

ERIC VON DRAKE,

Plaintiff-Appellant

v.

ST PAUL TRAVELERS INSURANCE CO; BYRNE, MEAD, &

SMITHERMAN LAW FIRM; LIBERTY MUTUAL AUTOMOTIVE

INSURANCE COMPANY; SEDGWICK, DETERT, MORGAN & ARNOLD

LAW FIRM; MARK TILLMAN; ALICA TATUM ANDREWS; JESSICA

SETTLER; HARTFORD INSURANCE CO; ABBASS SEKHAVAT; JOAN

BAZAR; LISA DEAN HULL; LEDINE SANCHEZ; TERESA G GRAY;

SPENCER BROWNE; HEYGOOD, REYES, ET AL LAW FIRM; MARTIN

HOFFMAN; GREG GRIFFITH; MARTIN, DISIERE, JEFFERSON &

WISDOM; LEVON G HOVATANIAN; MOLLY MEREDITH FRANCIS;

JAMES A MOSELEY; VALENCIA NASH; JESSICA STETTLER,

Defendants-Appellees

Appeal from the United States District Court for the Eastern District of

Texas

6:08-CV-301

Before DAVIS, SMITH, and DENNIS, Circuit Judges.

PER CURIAM:*

United States Court of Appeals

Fifth Circuit

F I L E D

November 23, 2009

Charles R. Fulbruge III

Clerk
No. 09-40431

2

Plaintiff-Appellant Eric Drake, proceeding pro se, filed multiple suits

arising from two alleged automobile accidents against St. Paul Travelers

Insurance Company, the Byrne, Mead, & Smitherman law firm, Liberty Mutual

Automotive Insurance Company, the Sedgwick, Detert, Morgan, & Arnold law

firm, Mark Tillman, Alicia Tatum Andrews, Jessica Settler, Hartford Insurance

Company, Abbass Sekhavat, Joan Bazar, Lisa Dean Hull, Ledine Sanchez,

Teresa G. Gray, Spencer Browne, the Heygood, Reyes law firm, Judge Martin

Hoffman, Greg Griffith, the Martin, Disiere, Jefferson, & Wisdom law firm,

Levon G. Hovatanian, Justice Molly Meredith Francis, Justice James A.

Moseley, Judge Valencia Nash, and Jessica Stettler (collectively “the

defendants”). In the most recent suit filed by Drake, the district court adopted

the Report and Recommendations of U.S. Magistrate Judge John D. Love, and

granted the defendants’ motions to dismiss the suit and denied as moot Drake’s

motions for evidentiary hearings. The district court also denied Drake’s Motion

for Default Judgment against two of the defendants. The district court also

denied the defendants’ Motions for Entry of Vexatious Litigant Order. For the

following reasons, we AFFIRM the judgment of the district court.

I.

We recite the thorough facts of Magistrate Judge Love:

Plaintiff was involved in an automobile accident with

Defendant Alice Tatum Andrews, in Dallas County, Texas in May

2004. Thereafter, Plaintiff filed a lawsuit against Andrews and

Plaintiff’s insurance carrier Liberty Mutual Automotive Insurance

Company, in the 44th Judicial Court of Dallas County; Drake

represented himself in the lawsuit. On August 30, 2004, Visiting

Judge Kent Sims entered an order in that case declaring Drake to

be a vexatious litigant and ordering Drake to post security or have

his lawsuit dismissed. In response, Drake filed a notice of nonsuit

in which he asserted that he would re-file his lawsuit in another

court with additional defendants.
No. 09-40431

3

Drake filed a second lawsuit against Andrews in the United

States District Court for the Eastern District of Texas—Texarkana

Division against many of the defendants named in the present

lawsuit, including Liberty Mutual Automotive Insurance Company,

Alice Andrews, Lisa D. Hull, Jessica Settler, Hartford Insurance

Company, Abass Sekhavat, and Joan Bazar. He alleged a variety

of claims, including racial discrimination arising from the denial of

an insurance claim. Plaintiff later voluntarily dismissed those

claims. Less than two weeks later, Defendant Spencer Browne of

Defendant law firm Heygood Reyes filed a similar suit on Drake’s

behalf in the 68th Judicial District Court, Dallas, Texas, naming

Alice Andrews and Liberty Mutual Automotive Insurance Co. as

defendants. Mr. Browne later withdrew as Plaintiff’s attorney.

Andrews moved to have Plaintiff declared a vexatious litigant.

Defendant Judge Martin Hoffman denied the motion finding that

Chapter 11 of the Texas Civil Practice & Remedies Code did not

apply because, although Plaintiff was proceeding pro se by the time

of the hearing, he had been represented by counsel when the suit

was initially filed.

Andrews hired Defendants Greg Griffith, Levon Hovnatanian

and the law firm of Martin, Diseire, Jefferson & Wisdom to

represent her in a mandamus action seeking to reverse Judge

Hoffman's ruling on the vexatious litigant motion. The Fifth Court

of Appeals, in an opinion authored by Defendant Justice Molly

Francis and joined by Defendant Justice James Moseley, found that

Chapter 11 of the Texas Civil Practice & Remedies Code applied to

pro se litigants who were represented at the initial filing of the suit.

Thereafter, Judge Hoffman declared Plaintiff a vexatious litigant.

Plaintiff’s lawsuit was subsequently dismissed with prejudice after

he failed to provide the required bond. 

In April 2008, Plaintiff filed essentially the same lawsuit in

Small Claims Court, Dallas County, Texas. That case was

dismissed by Defendant Judge Valencia Nash on June 12, 2008 for

failure to comply with the terms of the vexatious litigant order. 

On June 9, 2008, Plaintiff filed a Verified Petition to

Perpetuate Testimony in the Eastern District of Texas, Marshall

Division, that sought the depositions of Alice Andrews, Greg

Griffith, Jessica Stettler, and Levon Hovnatanian. All four of these

individuals are defendants in this lawsuit. Judge Ward transferred

the action sua sponte to the Northern District of Texas, Dallas

Division. The case was assigned to Magistrate Judge Stickney who
No. 09-40431

4

sent Plaintiff a detailed questionnaire on August 1, 2008 seeking

additional information about Plaintiff’s allegations. Subsequently

and without responding to the questionnaire, Plaintiff withdrew

his request for discovery and that withdrawal was filed on August

15, 2008.

In September 2008, after filing the present suit, Drake

petitioned the United States District Court for the Western District

of Texas–Austin Division for permission to take the oral depositions

of Hovnatanian and Andrews, claiming he “anticipated” being a

party to a lawsuit against Andrews and her attorneys for fraud,

possible conspiracy to commit fraud, libel/slander, consumer fraud,

deceptive trade practices, and other similar violations of civil law.

In its order dismissing Drake’s case, the court stated “Essentially

[Drake] appears to be attempting to circumvent the state court’s

determination that he is a vexatious litigant.”

A second accident is also involved in this lawsuit. Plaintiff

claims that he was involved in a second accident on May 31, 2005 in

Dallas County, Texas. Plaintiff claims that an entity called

“Travelers”, Teresa Gray, Shannon Smitherman and the law firm of

Byrne Mead & Smitherman, the outside counsel hired by Travelers,

violated his civil rights when they denied his claim for benefits

under an automobile policy he claims was issued by Travelers. St.

Paul Travelers Insurance Co. has answered in this lawsuit,

although it claims that it is not the Travelers entity referenced in

Plaintiff’s complaint. 

In addition to the entities mentioned above, Plaintiff alleges

that Defendants Hartford Insurance Co., Lisa Hull, Mark Tillman

of law firm Sedgwick, Detert, Morgan & Arnold are somehow

involved in his claims against Liberty Mutual Automotive Insurance

Co. He claims that Ledine Sanchez and Teresa Gray are somehow

involved in his claims against Alice Andrews, Judge Hoffman,

Justice Francis, and Justice Moseley. He claims that Defendant

Joan Bazar violated HIPAA by giving out his personal information

to Abbass Sekhavat because of his race. Finally, Plaintiff claims

that Jessica Settler and Jessica Stettler are attorneys somehow

involved in one of the cases in which Plaintiff was declared a

vexatious litigant.

Report and Recommendation of United States Magistrate Judge, at 2–4

(citations omitted). 
No. 09-40431

5

II.

In reviewing the facts, the Magistrate Judge divided the defendants into

three categories: Andrews, the Judges, and all of the remaining defendants. The

Magistrate Judge recommended the claims be dismissed against each category

of defendant for the following reasons.

A.

The Magistrate Judge recommended the claim against Andrews be

dismissed under the Rooker-Feldman doctrine. See Rooker v. Fidelity Trust Co.,

263 U.S. 413 (1923); District of Columbia Court of Appeals v. Feldman, 460 U.S.

462 (1983). In 2005, the U.S. Supreme Court held that application of the RookerFeldman doctrine “is confined to cases . . . brought by state-court losers

complaining of injuries caused by state-court judgments rendered before the

district court proceedings commenced and inviting district court review and

rejection of those judgments.” Exxon Mobil Corp. v. Saudi Basic Indus. Corp.,

544 U.S. 280, 284 (2005). 

This case does not meet the narrow set of cases governed by RookerFeldman. In his present complaint, Drake is not inviting the district court to

review and reject the judgment of the Texas state courts. Instead, Drake is

seeking damages for Andrews’ allegedly fraudulent statements. Thus, RookerFeldman is inapplicable in this case.

Though Rooker-Feldman is inapplicable, we find that the district court did

not err in dismissing Drake’s claim against Andrews as the court lacked subject

matter jurisdiction. Drake asserts subject matter jurisdiction based on diversity

and 42 U.S.C. §§ 1981 and 1983. None of these are applicable. Drake and

Andrews are both Texas domiciliaries, thus there is no diversity jurisdiction. 

Sec. 1981 is inapplicable, among other reasons, because Drake failed to allege

any facts that indicate Andrews intended to discriminate against him based on
No. 09-40431

6

his race. See Arguello v. Conoco, Inc., 330 F.3d 355, 358 (5th Cir. 2003). Finally,

§ 1983 is inapplicable to Andrews because Andrews is not a state actor.

Therefore, this court lacks subject matter jurisdiction over the claim against

Andrews.

B.

The Magistrate Judge recommended the claims against the Judges be

dismissed based on judicial immunity. Drake argues the Judges are not entitled

to judicial immunity because their actions were outside the scope of their judicial

employment. We find no merit to Drake’s argument. Absolute judicial

immunity extends to all judicial acts which are not performed in the clear

absence of all jurisdiction. Stump v. Sparkman, 435 U.S. 349 (1978). Applying

the Adams v. McIlhany factors to this case, as the Magistrate Judge did, it is

clear that the acts performed by the Judges were judicial acts. See 764 F.2d 294,

297 (5th Cir. 1985). Moreover, none of these actions were performed in the clear

absence of all jurisdiction.

C.

The Magistrate Judge recommended the claims against the remaining

defendants be dismissed because of Drake’s failure to state a basis for subject

matter jurisdiction. Drake asserts subject matter jurisdiction based on diversity

and 42 U.S.C. §§ 1981, 1983, 1985, and 1986. None of these grant this court

subject matter jurisdiction. 

Drake has not alleged the domicile of all of the remaining defendants. The

defendants whose domicile Drake has alleged are not diverse. As such, diversity

jurisdiction is inapplicable. 

Jurisdiction under the Civil Rights statutes is also inapplicable. None of

the remaining defendants are state actors, therefore they may not be sued under
No. 09-40431

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§ 1983. Drake has failed to allege any facts that support his belief that the

defendants engaged in their conduct because of his race, a requirement under

§§ 1981 and 1985. See Arguello, 330 F.3d at 358; McLellan v. Mississippi Power

& Light Co., 545 F.2d 919, 923 (5th Cir. 1977). This court has held that a valid

§ 1985 claim is a prerequisite to a § 1986 claim. Bryan v. City of Madison, 213

F.3d 267, 276 (5th Cir. 2000). Because Drake does not have a valid § 1985 claim,

he does not have a valid § 1986 claim.

III.

In addition to dismissing all claims against the defendants, the district

court denied as moot Drake’s Motions for Evidentiary Hearings. The district

court also denied Drake’s Motion for Default Judgment as to defendants Bazar

and Sekhavat because both defendants filed motions within days of being served.

We find the district court did not err in denying these motions.

Finally, the district court denied the defendants’ Motions for Entry of a

Vexatious Litigant Order. We find the district court did not abuse its broad

discretion in denying this motion. 

CONCLUSION

For the reasons stated above, we AFFIRM the judgment of the district

court.