IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________

No. 90-2722

_______________

C.G. DILLARD,

Plaintiff-Appellant,

VERSUS

MERRILL LYNCH, PIERCE, FENNER & SMITH, INC., et al.,

Defendants-Appellees.

_______________

No. 90-2761

_______________

CARVEL G. DILLARD,

Plaintiff-Appellant,

VERSUS

SECURITY PACIFIC CORP., et al.,

Defendants-Appellees.

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No. 91-2135

_______________

CARVEL DILLARD,

Plaintiff-Appellant,

VERSUS

SECURITY PACIFIC BROKERS, INC., et al.,

Defendants-Appellees.1 Although there appear to be several brokerage agreements between

Merrill Lynch and Dillard, we refer to these as "the agreement" or "the

contract."

2 _________________________

Appeals from the United States District Court

for the Southern District of Texas

_________________________

(May 15, 1992)

Before POLITZ, Chief Judge, BROWN and SMITH, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

In this consolidated appeal, Carvel Dillard challenges an

order compelling arbitration of his 1985 case and orders dismissing

his 1986 and 1988 cases. We affirm the order compelling arbitration, affirm in part the dismissals, and remand the 1986 and 1988

cases to the respective district courts.

I.

Carvel Dillard maintained an account with Merrill Lynch,

Pierce, Fenner & Smith ("Merrill Lynch") for the purpose of trading

securities. The brokerage agreement contained a provision by which

the parties agreed to settle any disputes through arbitration. 1 In

December 1983, Merrill Lynch partially liquidated some stock held

in Dillard's account S)Q an action Dillard claims it took over his

objection.

D i ssatisfied with Merrill Lynch, Dillard entered into an

agreement with the Financial Clearing Services Corporation (FCSC),

Security Pacific Brokers, Inc., and Security Pacific Corporation2 Security Pacific Brokers, Inc., and FCSC are subsidiaries of Security

Pacific Corporation. Dillard dealt directly with Security Pacific Brokers,

Inc., and FCSC.

3 (collectively "Security Pacific") 2 on February 14, 1984, whereby

Security Paci fic agreed to purchase put and call options for

Dillard upon request and Dillard agreed to open an account with

Security Pacific and keep it fully margined. On February 16, 21,

and 23, Dillard delivered to Security Pacific three drafts on his

Merrill Lynch account totaling $56,256 to finance Security

Pacific's trading on his behalf. Merrill Lynch failed to honor the

drafts, however, as Dillard's account then had a deficit in excess

of $5,000. On February 27, Dillard directed Security Pacific to

purchase certain options. Security Pacific did not carry out this

order; nor did it carry out a subsequent order for the same options

at a different price.

Secu rity Pacific sued Dillard to recover on the bad Merrill

Lynch drafts. Although Dillard answered Security Pacific's

complaint, he failed to comply with the court's discovery orders,

and a default judgment was entered against him. After he filed his

answer, Security Pacific (along with Merrill Lynch) insti gated a

criminal prosecution against him with regard to the bad drafts.

Dillard then filed three pro se f ederal lawsuits S )Q respectively, in 1985, 1986, and 1988 S)Q against Merrill Lynch, Security

Pacific, and other parties involved in the securities transactions

and the criminal prosecution. All three of Dillard's lawsuits are

at issue in this consolidated appeal.4 A.

On July 16, 1985, Dillard filed suit ("the 1985 case") against

M errill Lynch, alleging that it had committed certain fraudulent

acts in handling securities trans actions on his behalf. His

complaint alleged that Merrill Lynch violated section 17(a) of the

Securities Act of 1933 ("the 1933 Act"), 15 U.S.C. § 77q(a);

section 10(b) of the Securities Exchange Act of 1934 ("the 1934

Act"), 15 U.S.C. § 78j(b), and rule 10b-5 promulgated thereunder,

17 C.F.R. § 240.10b-5; and the Texas Deceptive Trade Practices Act

(DTPA), Tex. Bus. & Com. Code Ann. § 17.41 et seq

.

Merrill Lynch moved to dismiss the compl aint for failure to

state a claim as required by Fed. R. Civ. P. 12(b)(6); in the

alternative, it moved for a more definite statement on the ground

that Dillard had failed to plead fraud with sufficient particularity as required by Fed. R. Civ. P. 9(b). In addition, Merrill

Lynch moved to compel arbitration pursuant to the arbitration

provisions of his trading agr eement with Merrill Lynch and

requested a stay pending arbitration.

Dillard then filed a "Motion To Declare Compulsory Arbitration

Provisions of Defendant's Adhesion Contracts To Be Invalid, and

Unenforceable and To Enjoin Enforcement of Same." In the motion,

Dillard for the first time raised allegations of an antitrust

conspiracy among brokerage firms to include arbitration clauses in

all brokerage contracts.

On March 23, 1987, Judge Ross Sterling held a motions hearing.

From the bench he ruled that Dillard had no private right of action3 At the time of Judge Sterling's bench rulings, it was the law of this

circuit that claims under the 1933 Act and the 1934 Act could not be arbitrated. Thus, Judge Sterling's dismissal of Dillard's § 17(a) and rule 10b-5

claims was a necessary prerequisite to the arbitration order. Soon thereafter, the Supreme Court held that claims under both federal acts are subject to

arbitration. See Rodriguez de Quijas v. Shearson/Am. Express , 490 U.S. 477,

482-84 (1989) (1933 Act); Shearson/Am. Express v. McMahon , 482 U.S. 220, 238

(1987) (1934 Act). Judge Lake accordingly entered an order compelling

arbitration of all claims related to the trading transactions.

5 under section 17(a) of the 1933 Act; that he had not properly

pleaded a cause of action under rule 10b-5; and that the claims he

had properly pleaded were subject to arbitration and should be

stayed pending arbitration. He also ruled that Dillard had not

properly raised the requests for declaratory and injunctive relief

in his pleadings. Judge Sterling died before entering the order,

and the case was assigned to Judge Sim Lake.

On February 1 , 1990, Judge Lake "concur[red] with Judge

Sterling's finding of a contract requiring arbitration" and ordered

the parties to begin arbitration within thirty days. He went on to

state that Dillard had made no claim "that creates any question of

law, equity or fact that cannot be arbitrated." 3 He also noted

that Dillard's request for declaratory an d injunctive relief was

not properly raised in his pleadings, stating that "[p]laintiff's

motions objecting to arbitration on the grounds o f federal antitrust law or adhesion contracts are irrelevant because they are

beyond the scope of his pleadings." In addition, he denied

Dillard's "Moti on for Findings of Fact and Conclusions of Law

C oncerning Injunctive Relief and Other Previously Filed Motions"

that had been filed on October 11, 1989. Finally, he dismissed the

entire action without prejudice.4 Dillard initially brought this case against Security Pacific

Brokers, Inc., and FCSC. Later, as noted infra , he unsuccessfully attempted

to add Security Pacific Corporation as a defendant.

6 On February 14, 1990, Dillard filed a motion under Fed. R.

Civ. P. 59(e) to alter or amend the judgment. Although he took

i ssue with the court's refusal to consider his antitrust allegations as a separate cause of action, he did not amend his complaint

to add these allegations. He also filed a motion for trial by

jury. These motions were denied.

On March 3, 1990, Dillard initiated arbitration proce edings

before the Chicago Board Options Exchange by filing a Statement of

Claim, which was a copy of his first amended complaint in the 1985

case. The matter was referred to the National Association of

Securities Dealers, which dismissed all of Dillard's claims after

an arbitration hearing on January 4, 1991. Dillard now appeals,

challenging the district court's arbitration order and dismissal of

the case as w ell as its refusal to enter findings of fact and to

enjoin the enforcement of the arbitration provisions.

B.

On August 20, 1986, Dillard filed his second federal lawsuit

("the 1986 case") S)Q this time against Security Pacific. 4 In his

original complaint, Dillard brought claims relating t o (1) the

securities transactions (under federal securities law) and (2) the

criminal prosecution (under the Racketeer Inf luenced and Corrupt

Organizations Act (RICO), 18 U.S.C. § 1961 et seq. , and the Hobbs5 The false swearing, bribery, and Hobbs Act claims were brought as

part of the RICO claim.

7 Act, 18 U.S.C. § 1951; he also accused Security Pacific of "false

swearing" and "bribery"). 5

On May 20, 1987, the court dismissed the suit on res judicata

grounds. Judge Sterling reasoned that all of the claims asserted

in Dillard's complaint should have been raised as compulsory

counterclaims to Security Pacific's suit to recover on the bad

Merrill Lynch drafts.

Dillard appealed, and on January 15, 1988, we affirmed the

dismissal as to all claims arising prior to Dillard's answer to

Security Pacific's complaint but reversed as to all claims arising

after the answer was filed. Specifically, we concluded that the

res judicata bar of the default judgment (entered after Dillard had

failed to comply with discovery orders) did not encompass Dillard's

claims arising out of the criminal prosecution, as the prosecution

was instituted after Dillard filed his answer. D illard v. Security

Pacific Brokers , 835 F.2d 607, 609 (5th Cir. 1988) (" Dillard I ").

We therefore vacated the dismissal as to Dillard's claims arising

from the criminal prosecution and remanded for further proceedings.

Dillard filed a supplemental complaint on July 18, 1988.

Judge James DeAnda, to whom the suit had been transferred, struck

the supplemental complaint on August 2, 1988, reasoni ng that

Dilla rd had failed to request leave to file. In his attempted

supplemental complaint, Dillard added claim s under the federal

antitrust laws; he also accused Security Pacific of "malicious8

prosecution" and of "undertak[ing] an illeg al, improper and

perverted use of criminal process." Finally, he made accusations

against Security Pacific Corporation (the parent company of

Security Pacific Brokers, Inc., and the FCSC), Jenkens & Gilchrist

(counsel for Security Pacific), Merrill Lynch, and the Securities

Industry Association (SIA). The suit subsequently was transferred

back to Judge Lake.

After a status conference on Septem ber 15, 1989, Judge Lake

ordered Dillard to file an amended complaint by October 15, 1989.

Dillard did not file an amended complaint; instead, he filed a

motion for a stay pending our decision in the 1988 case discussed

infra . Judge Lake granted the stay on October 27, 1989. We then

disposed of the first appeal of the 1988 case on May 22, 1988, and

Judge Lake ordered Dillard to file an amended complaint by

October 5, 1990, or face dismissal.

Dillard complied with Judge Lake's order. His amended

complaint added Merrill Lynch, Jenkens & Gilchrist , and the

Securities Pacific Corporation as defen dants. He also brought

claims for defamation, abuse of process, and malicious prosecution,

as well as under "Title 42

. . . of civil rights." He did not

bring a claim under the federal antitrust laws, nor did he name SIA

as a defendant.

In response, the defendants moved to dismiss the complaint

under rule 12(b)(6). Judge Lake refused to allow Dillard to add

Merrill Lynch, Jenkens & Gilchrist, and Security Pacific Corporation as defendants because "no leave was granted to add new9

parties." He specifically noted that the "newly added defendants"

were dismisse d without prejudice. He then dismissed (1) the

federal securities claims stemming from the trading transactions as

res judicata on the grounds cited in our Dillard I opinion; (2) the

defamation, malicious prosecution, and abuse of process claims as

time-barred; (3) the Hobbs Act claim on the ground that the statute

cited did not provide a private cause of action; and (4) the RICO

and civil rights claims without prejudice for failure to state a

claim. Dillard now appeals the district court's disposition of the

case.

C.

Dillard filed a third federal lawsuit in 1988 ("the 1988

case") S)Q this time against Security Pacific Corporation, Security

Pacific Brokers, Inc., FCSC, Merrill Lynch, SIA, and Jenkens &

Gilchrist. He asserted antitrust claims against Merrill Lynch,

Security Pacific, and SIA; and claims related to the criminal

prosecution (i.e., defamation, abuse of process, malicious

prosecution, RICO, and Hobbs Act claims ) against Merrill Lynch,

Security Pacific, and Jenkens & Gilchrist. He also accused Merrill

Lynch and the Security Pacific entities of wrongdoing with regard

to the trading transactions.

A ll the defendants moved for dismissal under rule 12(b)(6).

Merri ll Lynch also moved to compel arbitration. Judge Hughes

dismissed the case in three separate orders. Dillard appealed, and10

we remanded for the limited purpose of requiring the court to state

its reasons for the dismissals.

On July 6, 1990, Judge Hughes issued his opinion explaining

his earlier orders. First, he stated that the Security Pacific

entities were dismissed because all the claims against them were

pending in the 1986 case in Judge Lake's court. He then noted that

SIA was dismissed for failure to state a claim against it. With

regard to Jenkens & Gilchrist, he stated that the case would be

abated until Judge Lake ruled on Dillard's motion to amend his

complaint to add Jenk ens & Gilchrist as a defendant in the 1986

case. Finally, Judge Hughes noted that the case against Merrill

Lynch was abated until Dillard received a negative ruling on a

motion to amend his complaint in the 1985 case to include additional claims against Merrill Lynch. Dillard now challenges Judge

Hughes's disposition of the case.

I.

We first consider Dillard's complaints with regard to the 1985

case. He claims that the district court erred in compelling

arbitration of his claims, in denying his request for a jury trial,

in denying his request for declaratory and injunctive relief, and

in fa iling to enter findings of fact and conclusions of law in

connection with the denial of declaratory and injunctive relief.6 The contract states the following:

It is agreed that any controversy between us arising out of your

business or this agreement, shall be submitted to arbitration

conducted under the provisions of the Constitution and Rules of

the Board of Governors of the New York Stock Exchange, Inc. or

pursuant to the Code of Arbitration Procedure of the National

Association of Securities Dealers, Inc., as the undersigned may

elect.

7 Dillard argues at length that the district court improperly dismissed

his complaint for failure to state a claim. Although Judge Sterling noted

from the bench that Dillard had failed to state a claim under the federal

securities laws, Judge Lake explicitly dismissed the complaint without

prejudice pursuant to the arbitration clause.

11 A.

Judge Lake found that the Dillard-Merrill Lynch contract

required arbitration 6 and that Dillard raised no claim "creat[ing]

any question of law, equity or fact that cannot be arbitrated." He

therefore ordered the parties to begin arbitration within thirty

days and dismissed Dillard's claims without p rejudice. 7 Dillard

contends that the order compelling arbitration was improper. We

disagree.

Section 2 of the Federal Arbitration Act ("the Act"), 9 U.S.C.

§ 1 et seq.

, declares tha t an arbitration clause involving

interstate commerce is "valid, irrevocable, and enforceable, save

upon such grounds as exist at law or in equity for the revocation

of any contract." The Act also provides that "[i]f the making of

the arbitrati on agreement . . . be in issue, the court shall

proceed summarily to the trial thereof." I d. § 4 . In a case in

which such a trial is required, the Act allows the party resisting

arbitration to demand a jury trial. Id.8 There is no question that Dillard's substantive claims are arbitrable. See Rodriguez de Quijas , 490 U.S. at 482-84 (1933 Act claims subject to

arbitration); McMahon , 482 U.S. at 238 (1934 Act claims subject to arbitration); Commerce Park at DFW Freeport v. Mardian Constr. Co. , 729 F.2d 334, 340

(5th Cir. 1984) (DTPA claims subject to arbitration). The only issue, then,

is whether the arbitration clauses at issue in this case are enforceable.

9 Under Supreme Court precedent, a party must challenge the "'making'

of the agreement to arbitrate" itself in order to create a jury-triable issue.

Prima Paint Corp. v. Flood & Conklin Mfg. Co. , 388 U.S. 395, 403-04 (1967).

If the party makes allegations regarding the contract as a whole S)Q e.g., that the brokerage contract is a contract of adhesion S)Q that issue must go

to arbitration. Id. In most cases in which a customer seeks to avoid

arbitration by alleging that the contract is one of adhesion, he fails to

allege specifically that the arbitration clause is adhesive. See

, e.g.

, Bhatia , 818 F.2d at 422. Dillard has met this threshold requirement, for he

focuses specifically on the arbitration provision as an adhesive term.

12 Dillard contends that he deserves a jury trial on the question

of the validity of the arbitration clause. 8 He argues essentially

that he has put the "making of the arbitration" clause "in issue"

by al leging that the clause is an unconscionable "adhesion

contract." He contends that he had no choice but to accept the

arbitration clause in the Merrill Lynch contract beca use the

inclusion of the clause was nonnegotiable. He further alleges that

he could not go elsewhere because the majority of brokerage firms

use such terms in their contracts; he adds that such uniform use is

the result of an antitrust conspiracy among brokerage firms.

A party to an arbitration agreement cannot obtain a jury trial

merely by demanding one. Saturday Evening Post Co. v. Rumbleseat

Press

, 816 F.2d 1191, 1196 (7th Cir. 1987 ). The party resisting

arbitration bears "the burden of showing that he is entitled to a

jury trial under § 4 of the Arbitration Act." B hatia v. Johnston

,

818 F.2d 418, 422 (5th Cir. 1987). 9 Our caselaw has not established the precise showing a party must make. We have, however,

suggested that the party must make at least some showing that under10 In T & R Enters. , the party seeking to avoid arbitration put the

existence of the arbitration agreement "in issue" by alleging that although he

had signed the agreement, the true agreement between the parties was reached

during a telephone conversation in which arbitration was not discussed.

First, we rejected this argument as "contrary to the universally prevailing

rule that . . . one who executes a written contract is bound by its terms."

Id. We also noted that we were "rather persuaded" by Almecenes Fernandez,

S.A. v. Golodetz , 148 F.2d 625, 628 (2d Cir. 1945), which held that not only

must a party deny that he made an agreement to arbitrate, but evidence must be

produced to substantiate the denial. Id. See also Interbras Cayman Co. v.

Orient Victory Shipping Co., S.A. , 663 F.2d 4, 7 (2d Cir. 1981) (reaffirming

Almecenes Fernandez ).

13 prevailing law, he would be relieved of his contractual obligation

to arbitrate if his allegations proved to be true. In addition, he

must produce a t least some evidence to substantiate his factual

all egations. T & R Enters. v. Continental Grain Co. , 613 F.2d

1272, 1278 (5th Cir. 1980). 10

We affirm the district court's order to arbitrate on the

ground that Dillard failed to make a sufficient showing that the

arbitration provision at issue should not be enforced . Adhesion

contracts are not automatically void. Instead, the party seeking

to avoid the contract generally must show that it is unconscionable. S ee 6A Arthur L. Corbin, Contracts § 1376 at 20-21 (1962) and

7-9 (1991 Supp.). Several federal courts have considered and

rejected the argument that agreements to arbitrate disputes in the

securities context are unconscionable as a matter of law. As

explained by the Ninth Circuit,

The strong federal policy favoring arbitration, coupled

with the extensive regulatory oversight performed by the

SEC in this area, compel the conclusion that agreements

to arbitrate disputes in accordance with SEC-approved

procedures are not unconscionable as a matter of law.

Cohen v. Wedbush, Noble, Cooke, Inc. , 841 F.2d 282, 286 (9th Cir.

1988). S ee also Adams v. Merrill Lyn ch, Pierce, Fenner & Smith

,11 Section 4 of the Clayton Act, 38 Stat. 731, as amended, 15 U.S.C.

§ 15(a), provides that any person "injured in his business or property by

reason of anything forbidden in the antitrust laws . . . shall recover

threefold the damages by him sustained . . . ."

12 In addition to alleging that he was denied his statutory right to a

jury trial, Dillard claims he was deprived of his right to a jury trial under

the Seventh Amendment. This argument is without merit. In McMahon

, the Court

endorsed enforcing agreements to arbitrate statutory claims unless Congress

has prohibited waiver of a judicial forum for the particular claim at issue.

482 U.S. at 226-27. We conclude from this that the Seventh Amendment does not

preclude "waiver" of the right to jury trial through the signing of a valid

arbitration agreement.

14 888 F.2d 696, 700 (10th Cir. 1989); Surman v. Merrill Lynch,

Pierce, Fenner & Smith

, 733 F .2d 59, 61 n.2 (8th Cir. 1984). In

addition, Dillard failed to produce any evidence that the agreement

to arbitrate was somehow unfair or oppressive in this case.

Moreover, the allegations of antitrust conspiracy do not lead

to the conclusion that the Merrill Lynch contract was an unconscionable contract of adhesion. Even if the district court were to

find that such an antitrust conspiracy existed, this finding would

not compel the invalidation of the agreement to arbitrate; instead,

it would lead to an award of damages for any injury stemming from

the anticompetitive behavior. 11 Thus, because Dillard failed to

show the existence of a genuine issue of fact to be tried before a

jury, we affirm the district court' s arbitration order and

dismissal without prejudice. 12

B.

In his "Motion To Declare Compulsory Arbitration Provisions of

Defendant's Adhesion Contracts To Be Invalid, and Unenforceable and

To Enjoin Enforcement of Same," Dillard attempted to set forth his

antitrust conspiracy allegations as separate causes o f action.13 Dillard claims that he was entitled to findings of fact with regard

to the denial of injunctive and declaratory relief. Fed. R. Civ. P. 52(a)

requires such findings in "actions tried upon the facts without a jury" and

with regard to "granting or refusing interlocutory injunctions." Neither

situation was present in this case. First, no action was tried to the court

without a jury. Judge Lake ordered the parties to commence arbitration; he

settled no substantive claims. Second, Dillard did not make a request for an

"interlocutory injunction." Rather, he requested a declaratory judgment and

permanent relief from his obligations under the arbitration clause.

15 Judge Lake did not deny this "motion" as Dillard contends; instead,

he refused to consider Dillard's request for declaratory and

injunctive rel ief because Dillard did not properly request such

relief in his pleadings.

In order to obtain a permanent injunction or a declaratory

judgment, a party must make his request for such relief in his

pleadings. Fed. R. Civ. P. 8(a). Dillard's complaint failed to

make such a request. Moreover, there was no indication that

Dillard was requesting temporary or preliminary relie f S )Q a

request that can be m ade in a motion. 11 Charles A. Wright, et

al., Federal Practice and Procedure § 2949 at 467 (1973).

Therefore, Judge Lake properly refused to consider Di llard's

allegations apart from Dillard's attack on the validity of the

arbitration clauses per se

. 13

III.

With regard to the 1986 case, Dil lard contends that the

district court erred in dismissing his defamation, ma licious

prosecution, and abuse of process claims as time-barred and in14 Dillard also challenges the district court's refusal to allow him to

add Merrill Lynch, Jenkens & Gilchrist, and Security Pacific Corporation as

new party defendants. This refusal was proper, as he failed to request leave

of court.

In addition, Dillard attacks the district court's dismissal of his

allegations and claims related to the trading transactions. Those claims are

barred by Dillard I , however, and were properly dismissed. Finally, we do not

consider the court's dismissal of Dillard's Hobbs Act claim, as he does not

raise it as a ground for error.

15 As noted supra , the 1986 case started and ended as a case against

FCSC and Security Pacific Brokers, Inc.

16 dismissing his civil rights and RICO claims for failure to state a

claim. 14 These grounds of error are addressed below.

A.

Dillard filed his original complaint in this suit on

August 20, 1986, accusing Security Pacific 15 of "[f]alse [s]wearing"

and "brib[ing] a law enforcement officer" in connection with the

filing of criminal charges against him. He also alleged that

"[t]he false criminal charge was one of a number of outrageous

actions done by defendant[] to harass and oppress" him. These

charges were based upon the fact that "[i]n August 1984 defendant[]

made a knowingly false affidavit charging theft by

plaintiff . . . ." At the time of the filing of his 1986

complaint, Security Pacific had complained to the authorities, and

an indictment had been issued on August 19, 1985.

Several events occurred after the filing of this original

complaint. The indictment was quashed on September 16, 1987. On

that same day, a second indictment was issued but was dismissed on

J une 21, 1988. On July 18, 1988, Dillard filed his supplemental

complaint (which was stricken for failure to ask leave of court to16 Under Erie R.R. v. Tompkins , 304 U.S. 64 (1938), we must evaluate

the state of limitations issues in accordance with Texas law.

17 file it) alleging a "pattern of baseless re petitive claims"

constituting "a badge of malicious prosecution." He also alleged

"an illegal, improper and perverted use of criminal process."

Dillard specifically raised abuse of process, malicious

prosecution, and defamation causes of action on October 5, 1990, in

his first amended complaint, which he filed after we remanded to

the district cour t to consider Dillard's claims arising from the

criminal prosecution in Dillard I

. The district court used the

date of the first amended complaint S)Q October 5, 1990 S )Q for

purposes of calculating the timeliness of Dillard's malicious

prosecution, abuse of process, and defamation causes of action and

found that all three were time-barred. Use of this tolling date

would be erroneous, however, if the claims in the amended complaint

stemmed from the same "transaction or occurrence" addressed by the

original complaint. In such a case, the amended complaint would

"relate back" to the filing of the original complaint.

Under Tex. Civ. Prac. & Rem. Code § 16.068, 16 which is similar

to Fed. R. Civ. P. 15, the limitations period is tolled by the

first pleading related to the transaction or occurrence:

If a filed pleading relates to a c ause of action,

cross action, counterclaim, or de fense that is not

subject to a plea of limitation when the pleading is

filed, a subsequent amendment or supplement to the

pleading that changes the facts or grounds of liability

or defense is not subject to a plea of limitation unless

the amendment o r supplement is wholly based on a new,

distinct, or different transaction or occurrence.17 See

, e.g.

, Abbott v. Foy , 662 S.W.2d 629, 631 (Tex. App. S)Q Houston

[14th Dist.] 1983, writ ref'd n.r.e.) (amendment cured defective complaint);

Bradley v. Etessam , 703 S.W.2d 237 (Tex. App. S)Q Dallas 1985, writ ref'd

n.r.e.) (amendment adding wrongful death cause of action related back to

original complaint alleging medical malpractice).

18 There is only one sentence in the district court's opinion that

touches on the issue, where the court states that "Dillard asserts that

because the [defamation] cause of action based upon the second indictment was

timely raised in [the 1988 case], it is not time-barred in this action." This

is similar to Dillard's ground for error before this court. Although he does

not specifically raise the Texas "relation back" statute, he does ask us to

consider the "earliest pleading in any action [as] tolling the statute" of

limitations. We believe this is sufficient (but just barely) to raise the

"relation back" issue for appellate review, as Dillard asks us to consider

"any" pleading S)Q which could include earlier pleadings in the 1986 case S)Q

in addressing the statute of limitations question. It appears from the

district court's recitation of Dillard's argument that he did not make a

similar request to the district court. We leave it to the district court,

however, to answer this question.

18 Texas courts have employed section 16.068 both to save de fective

pleadings and to allow amendments allegi ng separate but related

bases of recovery. 17 Thus, the inquiry is not whether an amended

complaint adds a new or different cau se of action; rather, it is

whether that new or different cause of action is wholly based upon,

and grows out of, a new, distinct, or different transaction or

occurrence. M eisler v. Republic of Tex. Sav. Ass'n

, 758 S.W.2d

878, 882 (Tex. App. S)Q Houston [14th Dist.] 1988, no writ).

As the record now stands, we cannot discern whether the

defamation, abuse of process, and malicious prosecution claims grew

out of a "wholly . . . new, distinct, or different transaction or

occurrence." We thus remand the timeliness issue to the district

court for consideration of the relation-back issue. We also cannot

discern from the district court's opinion whether Dillard properly

raised the relation-back issue. 18 If he did not, we cannot consider

the issue on appeal, see Way v. Reliance Ins. Co. , 884 F.2d 866,

868 n.3 (5th Cir. 1989); thus, there would be no need for the19 The district court held that although "[i]t is perhaps possible that

a RICO claim may lie buried somewhere" in Dillard's complaint, it could not

find it. After examining Dillard's complaint, we agree and affirm the

dismissal.

Similarly, we affirm the dismissal of Dillard's civil rights claim,

which consists of the following: "Plaintiff additionally makes claim against

defendants for damages to plaintiff due to . . . Title 42 violation of civil

rights." Mere conclusory allegations of a deprivation of civil rights are

insufficient to withstand a motion to dismiss. Arsenaux v. Roberts , 726 F.2d

1022, 1024 (5th Cir. 1982).

19 district court to address the issue on remand, for its opinion on

the timeliness issue would have become final.

B.

We agree with the district court that Dillard failed to state

a claim under either RICO or federal civil ri ghts law. 1 9 Dillard

argues, however, that when read in conjunction, his 1985, 1986 and

1988 complaints (and amendments thereof) do state a claim.

We decline Dillard's invitation to read all of his complaints

together. This tangled web of litigation is of his own making.

Thus, we do not agree that "substantial justice" requires us to

h old, as he suggests, that "if a cause of action is p roperly

plead[ed] in any action or in any c ombination of actions it is

properly plead[ed]."

IV.

Finally, with regard to the 1988 case, Dillard argues that the

district court erred in dismissing SIA from the suit for failure to

state a claim against it, in abating the suit against Merrill Lynch

and Jenkens & Gilchrist, and in dismissing the Security Pacific20 In his complaint, Dillard states in his prayer for relief "[t]hat

S.I.A. would be found guilty only of anti-trust law violations."

20 ent ities on the ground that similar claims were pending against

them in Dillard's 1986 case.

A.

Dillard's sole complaint against SIA is its involvement in the

alleged antitrust conspiracy. 20 In his 1988 suit, Dillard repeats

the allegations he raised in his injunction motion in the 1985

suit. Essentially, he points to the fact that the vast majority of

brokerage agreements contain arbitration clauses and alleges that

those clauses are the result of an antitrust conspiracy in the

brokerage industry.

Judge Hughes dismissed SIA because Dillard failed to state an

antitrust claim against it. As Judge Hughes noted,

The Association could have been a clearinghouse for

price fixing information, but Dillard did not make that

allegation. The Association is not a market participant,

and Dillard failed to allege facts that it was a conduit

for conspiratorial anti-competiti ve pricing or

monopolization. This lack of sufficient factual

allegations constitutes failure to state a claim against

the Association for antitrust violations.

In paragraph 22 of his complaint, however, Dillard made the precise

allegation Judge Hughes thought was m issing. In that paragraph,

Dillard alleged the following:

Defendants and their co-conspirators, in order to

effect monopolization, acted with the intention that

services be unavailable except on similar unfair terms[;]

and legal seminars, and l egal bulletins of the

conspirators' trade association, S.I.A., and other

exchanges of information on model arbitration clauses and21 As SIA notes, "Dillard asserts that SIA disseminated information

about the use of [model arbitration clauses] to its members, and that each

member understood from that information that it could use [the model

arbitration clauses] without fear of losing business to other brokers because

all brokers would necessarily use [the model clauses] as nonnegotiable

contract terms."

22 Dillard also brings a claim under section 2. His claim, however, is

more appropriately considered under section 1.

21 their intent to use them caused each individual company

to know that others would act in conjunction with it to

restrain the trade of those who refused to arbitrate.

Although the allegations connecting SIA to the conspiracy are

somewhat inartful, there is no question that Dillard made them.

SIA seems to acknowledge this in its brief, for it restates

Dillard's allegations that it acted as a clea ringhouse for anticompetitive information. 21 SIA, therefore, argues that there are

two additiona l deficiencies in Dillard's complaint: Dillard

(1) failed to allege an agreement or conspiracy among the brokerage

firms; and (2) failed to allege facts to show how he has been

economically damaged.

1.

Section 1 of the Sherman Act 22 proscribes "[e]very contract,

combination

. . . or conspi racy [] in restraint of trade or

commerce . . . . " 15 U.S.C. § 1. In order to state a claim for

a violation of Section 1, a plaintiff must allege (1) the existence

of a conspiracy (2) affecting interstate commerce (3) that imposes

an "unreasonable" restraint of trade. White & White v. Am. Hosp.

Supply Corp.

, 723 F.2d 495, 504 (6th Cir. 1983). Contrary to SIA's

assertions, Dillard alleged " the existence of a conspiracy" in23 He models his complaint after Paramount Famous Lasky Corp. v. United

States , 282 U.S. 30 (1930), in which competitors in the film industry agreed

to use a standard form contract containing an arbitration clause in their

dealings with movie theaters. If a theater owner failed to submit disputes to

an industry-controlled arbitration panel, or if he refused to abide by an

arbitration award, the industry conspirators would refuse to do business with

him again until he put up a security deposit, arbitrated the dispute, or

abided by the arbitration award.

22 several places in this complaint. For example, in paragraph 19, he

charges a

conspiracy by Defendants and their competitors in

violation of the Sherman Anti-Trust Act by the Defendants

in adopting and agreeing to use, and in using exclusively

certain uniform contracts for securities trading

containing provisions for the determination by

arbitration of all claims and controversies arising under

said contracts.

Dillard goes on to allege that the defendants "acted with the

intention that services be unavailable except on similar unfair

terms." Essentially, Dillard asserts that SIA disseminated

information about the use of arbitration clauses; from that

dissemination, he argues, each member of the SIA understood that it

could use the arbitration clause in its contracts without fear of

losing business. 23

SIA argues that Dillard alleges nothing more than "conscious

parallelism" in the industry, which is not enough to state a claim

for conspiracy. In particular, Dillard states that he "will show

the similarity of behavior can, under the facts, only be attributed

to an understanding among securities industry competitors to effect

the restraint." SIA is correct when it asserts that proof of

parallel business behavior is insufficient to prevail on a Sherman

Act claim. See Theatre Enters. v. Paramount Film Distrib. Corp.

,

346 U.S. 537, 541 (1954). But SIA seems to confuse the standard23

for withstanding summary judgment with the standard for defeating

a rule 12(b)(6) motion.

Dillard does not need to "off[er] any plausible reason for

defendants to have conspired," as SIA suggests. He merely needs

to allege that they did indeed conspire and give some factual

allegations that would support such a claim. S ee McCleneghan v.

Union Stock Yards Co.

, 298 F.2d 659, 663 (8th Cir. 1962) (plaintiff

needs to make more than an allegation of conspiracy; he must make

a statement of facts cons tituting the conspiracy). Dillard does

this by alleging that the defendants attended seminars and

conferences at which arbitration clauses were discussed and that

they adopted such clauses knowing that they could do so without

fear of competition.

2.

Section 4 of the Clayton Act, which provides the private right

of action to enforce the Sherman Act, requires that the antitrust

plaintiff seek recovery for injury "in his business or property."

38 Stat. 731, as amended, 15 U.S.C. § 15(a). Dillard alleges that

"[t]here has been injury to MR. DILLARD'S business and to his

property because of duress of threat to restrain trade of Plaintiff

lest he sacrifice right of recovery by judicial

determination . . . ." SIA argues that the dismissal for failure

to state a claim was proper because Dillard "alleged no facts to

show how he has been economically damaged."24 SIA does not contest the sufficiency of Dillard's complaint as to

pleading unreasonable restraint or interstate commerce; thus, we do not

consider these issues.

25 We leave it to Judge Hughes on remand to survey the procedural

landscape of this case and to decide whether Dillard's claims against SIA

should go forward in his or another court.

24 Contrary to SIA's suggestion, Dillard need not show how he was

damaged at this point, however. The fact is that he alleged that

his business and property were injured. This is sufficient to

satisfy the requirements of notice pleading. 24 We therefore reverse

the district court's dismissal of SIA for failure to state a claim

against it. 25

B.

Judge Hughes abat ed the claims against Merrill Lynch "until

Dillard moves to, and receives a negative ruling on a motion to,

amend his complaint" in the 1985 case to add the claims asserted in

his 1988 complaint. In his 1985 complaint, Dillard alleged that

Merrill Lynch violated the federal securities laws as well as the

DTPA. In that complaint he did not state claims arising from the

criminal prosecution or in connection with the al leged antitrust

conspiracy (Judge Lake re fused to consider Dillard's antitrust

allegations as a separate cause of action because he did not

properly raise them in his pleadings.)

It was within Judge Hughes's discretion to abate the claims

pending in his court with the hope that Dillard would consolidate

all his claims against Merrill Lynch in one forum. We have26 An abatement can be either a stay or a dismissal. Baer v.

Fahnestock & Co. , 565 F.2d 261, 263 (3d Cir. 1977). In this case, the

abatement should be considered a stay, given that Judge Hughes abated the case

only until the occurrence of a specific event S)Q Dillard's attempt to add his

1988 claims to the 1985 case.

25 expressly noted in the past that a stay 26 "pendi ng the outcome of

litigation between the same parties involving the same or

controlling issues is an acceptable means of avoiding unnecessary

duplication of judicial machinery." A CF Indus. v. Guinn

, 384 F.2d

15, 19 (5th Cir. 1967), cert. denied , 390 U.S. 949 (1968).

At the time of Judge Hughes's order, Dillard had filed a

motion to ame nd the judgment in the 1985 case that raised the

antitrust claims but not the claims related to the criminal

prosecution; the latter were, however, raised in the first amended

complaint in the 1986 case. Since that time, Judge Lake has denied

the motion to amend judgment in the 1985 case. He also refused to

allow Dillard to add Merrill Lynch to the 1986 case on the ground

that Dillard failed to ask leave of court to add new defendants.

The question is, then, whether Dillard has complied with Judge

Hughes's request.

Merrill Lynch correctly points out that Dillard never

attempted to file a motion to amend his 1985 complaint

. Dillard's

motion to amend judgment in that case (which raised only the

a ntitrust claims) was pending at the time, however. Considering

Dillard is pro se , this is enough for substantial compliance with

Judge Hughes's request.

Similarly, Dillard attempted to add Merrill Lynch to his 1986

case, in which Dillard's claims stemming from the criminal26

prosecution were pending. Judge Hughes, however, had asked him to

amend his 1985 complaint. Again, especially considering that both

t he 1985 and the 1986 cases are assigned to Judge Lak e, this

appears to be substantial compliance. In sum, we affirm Judge

Hughes's abatement of the case. Because Dillard substantially

complied with Judge Hughes' request, he is free to return to Judge

Hughes's court with his claims. At that time, Judge Hughes can

survey the procedural landscape and make further orders, if

necessary.

C.

It was within Judge Hughes's discretion to abate the case

against Jenkens & Gilchrist pending a decision on Dillard's motion

to amend his complaint in the 1986 case to add it as a defendant.

Dillard did attempt to add Jenkens & Gilchrist, but his request was

denied because he failed to seek leave of court to file a motion to

add new party defendants. Again, considering Dillard is p ro se

, he

has substantially complied with Judge Hughes's order. Dillard is

now free to return to Judge Hughes's court with his claims against

Jenkens & Gilchrist, and Judge Hughes may make further orders as

appropriate.

D.

Judge Hughes dismissed the claims against Security Pacific

Corporation, Security Pac ific Brokers, Inc., and FCSC, reasoning

that all the claims were still pending in the 1986 case. At the27 This is because Judge Hughes did not state otherwise. In addition,

Security Pacific assumes that the dismissal was with prejudice, as it argues

alternative grounds for affirming the dismissal with prejudice, such as

statute of limitations and res judicata

.

27 time of Judge Hughes's decision, the following had occurred in the

1986 case: We had affirmed the district court's dismissal of

Dillard's claims relating to the trading transactions as res

judicata ; Dillard had filed his supplemental complaint on remand;

Judge DeAnda had stricken the supplemental complaint for failure to

request leave of court to file it; and Judge Lake had granted a

stay pending the first appeal of this (the 1988) case. Dillard had

not yet filed his first amended complaint, and when he did so

later, he did not raise any antitrust claims against the Security

Pacific entities. Thus, Judge Hughes was incorrect in his

assumption that all Dillard's claims against Security Pacific were

pending in the 1986 case; the antitrust claims were not.

We assume that Judge Hughes's dismissal was with prejudice. 27

The effect of Judge Hughes's dismissal of the Security Pacific

entities is to preclude Dillard from adding the antitrust claims to

the 1986 case. We therefore reverse the dismissal of the antitrust

claims as an abuse of discre tion. A more appropriate course of

action would have been to abate the antitrust claims against the

Security Pacific entities until Dillard sought and obtained a

negative ruling on a motion to amend his 1986 complaint.

W i th regard to Dillard's duplicative claims (i.e., those

brought against Security Pacific in both the 1986 and the 1988

cases), it was within Judge Hughes's broad discretion to stay them28 The West Gulf and First City cases deal with the so-called first-tofile rule, which comes into play when a plaintiff files similar lawsuits in

two different federal districts. We have held that to avoid duplicative

litigation, "a district court may dismiss an action where the issues presented

can be resolved in an earlier-filed action pending in another district court."

West Gulf , 751 F.2d at 729. The first-to-file rule holds that "[i]n the

absence of compelling circumstances, the Court initially seized of a

controversy should be the one to decide whether it will try the case." 909

Corp. v. Village of Bolingbrook Police Pension Fund , 741 F. Supp. 1290, 1292

(S.D. Tex. 1990) (citation omitted). The same concern with avoiding

duplicative litigation is present where similar suits have been filed in two

courts within the same district, as is the case here.

28 pen ding the outcome of the 1986 case or to dismiss them without

prejudice. S ee West Gulf Maritime Ass'n v. ILA Deep Sea Local 24

,

751 F.2d 721, 729 & n.1 (5th Cir. 1985). S ee also First City Nat'l

Bank & Trust Co. v. Simmons

, 878 F.2d 76, 80 (2d Cir. 1989)

(affirming dismissal without prejudice). 28 Dismissal with

prejudice, however, would be an abuse of discretion. The 1986 case

would have no res judicata or collateral estoppel effect on the

1988 case until it came to final judgment, which it had not at the

time of Judge Hughes's or der; thus, dismissal with prejudice was

improper.

Security Pacific would like us to affirm the dismissal because

Dillard could have brought all his claims (including the antitrust

cla im) in the first amended complaint in the 1986 case. This

reasoning does not lead to a dismissal with prejudice, however;

instead, it argue s for an abatement, stay, or dismissal without

prejudice. Again, we leave it to Judge Hughes to evaluate the

status of Dillard's litigatio n and make further orders, if

necessary.29 V.30

Dillard has filed several motions to consolidate his cases S)Q

all of which have been denied. Consolidating actions in a district

court is proper when the cases involve common questions of law and

fact and the district court finds that it would avoid unnecessary

costs or delay. St. Bernard Gen. Hosp. v. Hosp. Serv. Ass'n , 712

F.2d 978, 989 (5th Cir. 1983), cert. denied , 466 U.S. 970 (1984);

Fed. R. Civ. P. 42. The power of the district court to consolidate

is purely discretionary. S t. Berna rd , 712 F.2d at 989. We

therefore affirm the various denials of Dillard's mot ions to

consolidate. Given consolidation of the three cases on appeal,

however, we s uggest that Dillard renew his request for

consolidation with the district courts in the 1986 and 1988 cases.

See e.g.

, St. Bernard , 712 F.2d at 990 (asking the district court

to reconsider S)Q although not reversing for abuse of discretion S)Q

its denial of motion to consolidate antitrust cases).

VI.

In summary, in the 1985 case, we AFFIRM the district court in

a ll respects. In the 1986 case, we AFFIRM the district court in

all respects except for the dismissal of the defamation, malicious

prosecution, and abuse of process claims; with regard to those

claims, we REMAND for consideration of the "relation back" issue if

that issue was properly raised. In the 1988 case, we REVERSE the

district court's dismissal of SIA; REVERSE the dismissal with

prejudice of the Security Pacific entities; AFFIRM the abatement of

c laims against Merrill Lynch and Jenkens & Gilchrist; and REM AND31

the case for further consideration. We also DENY Dillard's other

requests and motions, including his motion for sanctions. Finally,

we emphasize that in remanding we express no view regarding whether

`any of Dillard's claims are meritorious.