* 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this opinion should not be published and is not precedent except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.

United States Court of Appeals

Fifth Circuit

FILED

July 18, 2007

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 06-60499

Summary Calendar

TYREE W. BROWN,

Plaintiff-Appellant,

v.

DOW CHEMICAL COMPANY,

Defendant-Appellee.

--------------------

Appeal from the United States District Court

for the Southern District of Mississippi

USDC No. 3:01-CV-00027

--------------------

Before DAVIS, SMITH, and OWEN, Circuit Judges.

PER CURIAM:*

Tyree W. Brown appeals the district court’s denial of his

motion for reconsideration and his FED. R. CIV. P. 60(b) motion

seeking a determination that the district court lacked jurisdiction

to address his initial complaint for damages arising from alleged

exposure to pentachlorophenol. He argues that original

jurisdiction in the case was vested in the state court.

Brown filed the complaint pursuant to the diversity

jurisdiction of the district court because the named plaintiffs

were all citizens of Mississippi and Dow Chemical Company is a
No. 06-60499

-2-

Delaware Corporation with its principal place of business in

Michigan. The district court possessed subject matter jurisdiction

in the case pursuant to 28 U.S.C. § 1332. Because Brown’s argument

has no arguable merit, his appeal is dismissed as frivolous. See

5TH CIR. R. 42.2; Howard v. King, 707 F.2d 215, 219-20 (5th Cir.

1983). 

Dow Chemical Company has filed a motion to recover monetary

penalties pursuant to FED. R. APP. P. 38, arguing that the action

is not only frivolous, but that it is submitted solely as a

harassment tactic. Dow Chemical Company seeks damages, attorneys’

fees, and double costs, and any other just and equitable relief

that may be appropriate, including an order precluding Brown from

filing further motions or appeals in this case.

If a circuit court “determines that an appeal is frivolous, it

may, after a separately filed motion or notice from the court and

reasonable opportunity to respond, award just damages and single or

double costs to the appellee.” FED. R. APP. P. 38. 

Sanctions under Rule 38 are appropriate in this case. The

arguments raised by Brown are frivolous, given the fact that he

filed the complaint and properly invoked the district court’s

diversity jurisdiction. The dismissal of his underlying claims has

already been affirmed by this court. Brown v. Dow Chemical Co., 57

F. App’x 212 (5th Cir. 2003). Brown’s repeated frivolous motions

for reconsideration can be construed only as a form of harassment
No. 06-60499

-3-

to the appellee and a waste of the federal courts’ resources. See

Goad v. Rollins, 921 F.2d 69, 71 (5th Cir. 1991).

Brown is ordered to pay Dow Chemical Company its reasonable

attorneys’ fees and the costs it incurred on appeal and is warned

that he can file no further actions or civil appeals until the

sanctions are paid. The clerk of this court and the clerks of all

federal district courts within this circuit are directed to refuse

to file any civil complaint or civil appeal by Brown unless Brown

submits proof of satisfaction of all sanctions. If Brown attempts

to file any further notices of appeal or original proceedings in

this court without such proof, the clerk shall docket them for

administrative purposes only. Any submissions which do not show

proof that the sanction has been paid will neither be addressed nor

acknowledged. Brown is cautioned that any further frivolous

filings in the district court or on appeal will subject him to

additional sanctions. 

Dow Chemical Company is directed to file a bill of costs

together with an affidavit setting forth expenses and attorneys’

fees reasonably incurred by it in connection with this appeal. See

FED. R. APP. P. 38 & 39.

APPEAL DISMISSED; SANCTION IMPOSED; SANCTION WARNING ISSUED;

APPELLEE TO FILE A BILL OF COSTS AND AFFIDAVIT OF EXPENSES AND

ATTORNEYS’ FEES.