1997 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

2-6-1997

Huck v. Dawson

Precedential or Non-Precedential:

Docket 96-7341,96-7342,96-7444

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Recommended Citation

"Huck v. Dawson" (1997). 1997 Decisions. Paper 31.

http://digitalcommons.law.villanova.edu/thirdcircuit_1997/31
1

 THE UNITED STATES COURT OF APPEALS 

 FOR THE THIRD CIRCUIT 

 __________ 

 No. 96-7341 

 No. 96-7342 

 No. 96-7444 

 __________ 

 LEWIS F. HUCK, derivatively on behalf of 

 SEA AIR SHUTTLE CORPORATION, 

v. 

ERIC DAWSON; ROSALIE SIMMONDS BALLENTINE; RHUDEL GEORGE; LEO 

FRANCIS; ROBERT O’CONNOR, JR.; WILLIAM QUETEL; GEORGE GOODWIN; 

LUIS SOTOMAYOR; EARL ROEBUCK; MEMBERS OF THE BOARD OF DIRECTORS; 

GORDON A. FINCH, EXECUTIVE DIRECTOR; LT. GOV. DEREK M. HODGE; 

ALEXANDER A. FARRELLY, Governor; GOVERNOR OF THE VIRGIN ISLANDS, 

 (D.C. No. 94-cv-00001) 

 LEWIS F. HUCK, derivatively on behalf of 

 SEA AIR SHUTTLE CORPORATION, 

v. 

 VIRGIN ISLANDS PORT AUTHORITY; 

 SEA AIR SHUTTLE CORPORATION, 

 

 (D.C. No. 94-cv-00018) 

 Lewis F. Huck, derivatively on behalf of 

 Sea Air Shuttle Corporation, 

 Appellant 

 ON APPEAL FROM THE DISTRICT COURT OF THE VIRGIN ISLANDS 

 DIVISION OF ST. THOMAS AND ST. JOHN 

 __________ 

 Argued December 13, 1996 

 Before: SCIRICA, NYGAARD and McKEE, Circuit Judges 

 (Opinion Filed February 6, 1997) 

 

 Lawrence E. Duffy, Esq. (Argued) 

 Martinez-Alvarez, Fernandez-Paoli, 
2

 Menendez-Monroig 

 Centro De Seguros Building 

 Suite 407 

 701 Ponce De Leon Avenue 

 Miramar 

 San Juan, Puerto Rico, 00907 

 Counsel for Appellant 

 

 Frederick G. Watts, Esq. (Argued) 

 John H. Benham, III, Esq. 

 Watts and Benham 

 No. 1. Frederiksberg Gade 

 P.O. Box 11720 

 Charlotte Amalie, Saint Thomas 

 USVI, 00801 

 

 Counsel for Appellees Dawson, 

 Ballentine, George, Francis, 

 O’Connor, Quetel, Goodwin, 

 Sotomayor, Roebuck, Finch, the 

 Virgin Islands Port Authority and 

 Sea Air Shuttle Corporation 

 Maureen P. Cormier 

 Carol Moore 

 Office of the Attorney General of 

 The Virgin Islands 

 Department of Justice 

 48B-50 Kronprindsens Gade 

 Charlotte Amalie, St. Thomas 

 USVI, 00802 

 Counsel for Appellees Hodge and 

 Farrelly 
3

Nygaard, Circuit Judge: 

 The appellant, Lewis F. Huck, suing derivatively on behalf 

of Sea Air Shuttle Corporation, appeals separate orders of the 

district court dismissing his suit and awarding costs and 

attorneys’ fees to the appellees. Huck argues that the district 

court erred first by applying the res judicata doctrine, and 

second, by awarding costs and attorneys’ fees to the appellees. 

We conclude that Huck’s arguments, and indeed this appeal, are 

frivolous and will affirm the orders of the district court. 

I. 

 This appeal arises from the Virgin Islands Port Authority’s 

(VIPA) refusal to allow Sea Air to use VIPA owned seaplane ramps 

in St. Thomas and St. Croix. As a result of Hurricane Hugo in 

September 1989, the seaplane service that operated between St. 

Croix and St. Thomas and used VIPA’s seaplane ramps went out of 

business. In early 1990, VIPA issued a request for proposals to 

lease the seaplane ramps. In the course of the bidding process, 

VIPA considered the joint proposal of Sea Air and an affiliated 

company, Caribbean Airline Services, Inc. After investigating 

the operations of Sea Air and Caribbean, their joint proposal was 

rejected in favor of another bidder. 

 In response to being rejected, Sea Air sued VIPA and the 

successful bidder. In its various amended complaints, Sea Air 

alleged that VIPA’s choice of bidders was unlawful because it 

violated VIPA’s bidding statute; violated the due process and 

equal protection clauses of the Constitution; violated local and 

federal antitrust laws; violated Title 29, Section 543 of the 
4

V.I. Code (defining the powers of VIPA); violated the Commerce 

Clause; and, violated federal law under the Federal Aviation Act. 

 The district court dismissed the antitrust claims on federal and 

state action immunity grounds, and the Commerce Clause and FAA 

claims because they were included in Sea Air’s third amended 

complaint, filed just two weeks before trial was scheduled to 

begin. The district court then entered summary judgment in favor 

of the defendants on the balance of the claims. Significantly, 

Sea Air did not appeal these orders. 

 Later, however, Huck recycled Sea Air’s claims and sued as a 

shareholder, derivatively on behalf of Sea Air, against VIPA and 

various Virgin Islands government and VIPA officials. The 

gravamen of his complaint was the same as that of the earlier 

dismissed action. Huck acknowledges the identity of the two 

actions, but defends his right to file the second by contending 

that VIPA, in continuing to deny Sea Air access to the ramps, 

drove his company into bankruptcy. Moreover, Huck contends that 

the final and unappealed judgment entered against Sea Air in the 

earlier case did not bar his lawsuit because the earlier decision 

was “fraudulently obtained,” since the defendants in that action 

did not reveal that federal funds had been used or that federal 

law arguably prohibited the granting of exclusive leases for use 

of air navigation facilities. 

 The district court found Huck’s claims barred by res 

judicata, holding that Huck’s claims on behalf of Sea Air arose 

out of the same transaction and events that gave rise to the 

earlier lawsuit, and that the same had been earlier adjudicated. 
5

 Huck, the court held, could not avoid the effects of res 

judicata simply because he was now asserting that a different 

degree or extent of damage than earlier alleged. The fact that 

he continued to suffer from the effects of the earlier judgment 

did not render the claims to be not fully litigated. Moreover, 

it concluded that the parties were in privity, a conclusion that 

Huck has never challenged. Further, the court found that Huck’s 

allegations of fraud were meritless and “[could] be characterized 

as nothing other than frivolous.” Accordingly, the district 

court dismissed Huck’s claims and entered judgment in favor of 

the defendants. The district court then, upon motion of the 

defendants and without opposition from Huck, awarded attorneys’ 

fees to the defendants. In its memorandum explaining the award 

of attorneys’ fees, the district court stated that Huck’s 

lawsuits “were frivolous and groundless, lacking any factual or 

legal basis . . . .” Huck now appeals those orders. 

II. 

 On appeal, Huck offers an array of arguments why he believes 

the res judicata doctrine should not have barred his claims in 

the district court, including: (1) his claims are for damages 

incurred after the first judgment, and thus constitute a 

different cause of action; (2) his claims were not fully 

litigated in the first lawsuit; (3) his claims are premised on a 

different set of facts; (4) his claims seek a different remedy 

than the claims in the first lawsuit; (5) res judicata should be 

used only sparingly in civil rights cases; (6) res judicata 

should not be applied if the first judgment was erroneous; and, 
6

(7) res judicata should not be applied where it would result in 

"injustice." In addition, and although he did not oppose the fee 

motion below, Huck now contends that the district court erred by 

awarding attorneys’ fees to the appellees. 

 We have jurisdiction over these appeals under 28 U.S.C. §§ 

1291, 1294(3). We review the district court’s application of res 

judicata to bar the appellant’s claims under a plenary standard. 

 O’Leary v. Liberty Mutual Ins. Co., 923 F.2d 1062, 1064-65 (3d 

Cir. 1991). The district court’s award of attorneys’ fees to the 

appellees will stand “unless [the court] has erred legally, or 

the facts on which the determination rests are clearly 

erroneous.” Commonwealth v. Flaherty, 40 F.3d 57, 60 (3d Cir. 

1994) (citation and internal quotations omitted). 

III. 

 In determining whether Huck’s suits were barred by the res 

judicata doctrine (claim preclusion), we look to the law of the 

adjudicating state. O’Leary, 923 F.2d at 1064 (citing Gregory v. 

Chehi, 843 F.2d 111, 116 (3d Cir. 1988)). Absent local law or 

precedent to the contrary, the Restatement (Second) of Judgments 

provides the applicable law. 1 V.I.C. § 4;1 Miller v. Christian, 

958 F.2d 1234, 1237 (3d Cir. 1992) (citation omitted) (applying 

the Restatement (Second) of Property to settle a landlord-tenant 

 

 

 1 1 V.I.C. § 4 (1988) reads in its entirety: 

The rules of the common law, as expressed in the restatements of 

the law approved by the American Law 

Institute, and to the extent not so expressed, as generally 

understood and applied in the United States, shall be the rules 

of decision in the courts of the Virgin Islands in cases to which 

they apply, in the absence of local laws to the contrary. 
7

dispute). 

 The doctrine has been properly defined by the District Court 

of the Virgin Islands as “the legal principle that a final 

judgment, rendered upon the merits, without fraud or collusion, 

by a court which had jurisdiction over the parties and the 

subject matter, is conclusive in a subsequent action between the 

parties or their privies based upon the same cause of action.” 

Julien v. Committee of Bar Examiners, 923 F. Supp. 707, 716 

(D.V.I. 1996) (quoting Bank of Nova Scotia v. Bloch, 533 F. Supp. 

1356, 1359 (D.V.I.), aff’d, 707 F.2d 1388 (3d Cir. 1982)). 

Applying this doctrine, plaintiff’s claims will be barred by the 

application of res judicata if: (1) the earlier judgment is final 

and on the merits; (2) the claims asserted by the plaintiff are 

the same as those asserted in the earlier action; and, (3) the 

parties are the same as, or in privity with, the parties from the 

earlier action. Julien, 923 F.Supp. at 716. This interpretation 

is consistent with Section 24 of the Restatement (Second) of 

Judgments (1982) which describes the scope of res judicata as 

follows: 

(1) When a valid and final judgment rendered in an action 

extinguishes the plaintiff’s claim pursuant to the rules of 

merger or bar (see §§ 18, 19), the claim extinguished 

includes all rights of the plaintiff to remedies against the 

defendant with respect to all or any part of the 

transaction, or series of connected transactions, out of 

which the action arose. 

(2) What factual grouping constitutes a “transaction”, and what 

groupings constitute a “series”, are to be determined 

pragmatically, giving weight to such considerations as 

whether the facts are related in time, space, origin, or 

motivation, whether they form a convenient trial unit, and 

whether their treatment as a unit conforms to the parties’ 

expectations or business understanding or usage. 
8

Significantly, “it is well established that res judicata 

precludes a party both from relitigating matters already 

litigated and decided and from litigating matters that have never 

been litigated, yet should have been advanced in an earlier 

suit.” Julien, 923 F. Supp. at 717-18 (citing 18 Charles A. 

Wright, et al., Federal Practice and Procedure § 4406 (1981)); 

accord Bloch, 533 F. Supp. at 1359; Lawaetz v. Bank of Nova 

Scotia, 23 V.I. 132, 141 (D.V.I. 1987) (citation omitted). 

 Here, there is no doubt that the prerequisites -- finality 

of judgment, identity of claims, and privity of parties -- are 

met. Huck’s claims on behalf of Sea Air clearly: (1) arise out 

of the same transaction and events that gave rise to the earlier 

lawsuit; (2) mirror the claims and causes of actions asserted in 

the first lawsuit; and, (3) involve parties in privity. 

Accordingly, we find that the district court properly applied the 

doctrine of res judicata to bar Huck’s claims. Huck’s litany of 

arguments to the contrary do not raise even a colorable challenge 

to this conclusion. 

 Huck’s first contention is that after the district court 

entered its first judgment against Sea Air, VIPA continued to 

deny Sea Air access to the sea ramps and, as a result, Sea Air 

was forced to file for bankruptcy. Accordingly, Huck seeks 

compensation “for damages suffered subsequent to the decisions in 

the prior lawsuit, as a consequence of the continuing denial of 

access to the seaplane ramps, based on Defendants/Appellants' 

conduct being violative of federal law and depriving Sea Air of 

constitutionally protected rights.” In other words, Huck asserts 
9

that the continued denial of access to the ramps, although fully 

in compliance with the court's judgment, creates a new cause of 

action for liability, and thus res judicata is inappropriate. 

 Huck’s contention is absurd. First, Huck’s argument ignores 

the fact that in the initial judgment the district court 

determined that VIPA had a right to deny Sea Air access to the 

sea ramps, thereby settling the question of whether Sea Air was 

being deprived of its constitutional rights.2 Second, the 

conduct of which Huck complains, i.e., the denial of access to 

the sea ramps, is precisely the same conduct challenged in the 

earlier suit. Finally, it is difficult to understand how Huck 

can conclude that VIPA, by acting upon authority of and in 

accordance with the final judgment of the district court, created 

a new cause of action that was not barred by res judicata. This 

is not a case where there has been a change of circumstances 

concerning material operative facts that would serve to make the 

application of res judicata improper, nor does Huck argue so. 

See Restatement (Second) of Judgments § 24 comment f. Instead, 

he argues that the same facts that resulted in the earlier 

judgment have caused continued damage. 

 Huck’s second argument against the application of res 

judicata is that the district court, by denying Sea Air leave to 

amend its complaint in the earlier action, prevented all claims 

from being fully litigated, and thus he should be allowed to 

bring those claims now. This argument was foreclosed when 

 

 

 2 We note that neither Sea Air, nor Huck, in a derivative 

capacity, appealed this finding. 
10

neither Sea Air nor Huck, derivatively, appealed the first 

judgment. The issues that Huck contends were not fully litigated 

in the earlier action -- the Commerce Clause and FAA claims -- 

could have been properly raised and litigated by Sea Air, but 

were not. As such, the application of res judicata to bar the 

assertion of those claims in this action is appropriate. 

Julien, 923 F. Supp. at 717-18 (citation omitted); Lawaetz, 23 

V.I. at 141. Indeed, the Restatement offers a complete response 

to Huck’s argument: 

The rule of § 24 applies to extinguish a claim by the plaintiff 

against the defendant even though the plaintiff is prepared 

in the second action 

(1) To present evidence or grounds or theories of the case not 

presented in the first action, or 

(2) To seek remedies or forms of relief not demanded in the first 

action. 

Restatement (Second) of Judgments § 25; see also Restatement 

(Second) of Judgments § 25, Comment a (“The rule of § 24 puts 

some pressure on the plaintiff to present all his material 

relevant to the claim in the first action . . . . The material 

to be brought forward comprises, roughly, `evidence’ -- connoting 

facts; `grounds’ -- facts grouped under a legal characterization; 

`theories of the case’ -- premises drawn from the substantive 

law; `remedies or forms of relief’ -- measures or kinds of 

recovery.”). The trial court’s decision to deny Sea Air’s motion 

to amend its complaint does not change this outcome. Restatement 

(Second) of Judgments § 25 comment b (“It is immaterial that the 

plaintiff in the first action sought to prove the acts relied on 

in the second action and was not permitted to do so because they 
11

were not alleged in the complaint and an application to amend the 

complaint came too late.”). Moreover, neither Sea Air nor Huck, 

in a derivative capacity, ever appealed the trial court’s denial 

of the motion to amend the complaint, which would have been the 

proper recourse to preserve the right to litigate the claims. 

See, e.g., Sendi v. NCR Comten, Inc., 624 F. Supp. 1205, 1207 

(E.D.Pa. 1986) (holding that “the fact that plaintiff was denied 

leave to amend does not give him the right to file a second 

lawsuit based on the same facts”).3

 Huck’s third argument is also frivolous. Huck maintains 

that since he is alleging a cause of action for harm that 

occurred after the first judgment, he may prove different facts, 

and thus res judicata is inapplicable. This, however, is an 

incorrect statement of the law, and, as we noted earlier, there 

is no merit to Huck’s claim that he suffered a separate injury as 

the result of the continued losses from denial of access to the 

sea ramps. See Restatement (Second) of Judgments § 25 comment b. 

 The remainder of Huck’s contentions are likewise without 

merit. Huck argues that since he is pursuing a different remedy 

 

 

 3 We note also that, despite its decision to deny Sea 

Air’s motion to amend its complaint, the trial court’s opinion 

clearly indicates that it was aware of the substance of the 

Commerce Clause and FAA claims and found them to be unpersuasive. 

 In addition, insofar as one of the “unlitigated” claims Huck 

wishes to bring is for damages resulting from violations of 

federal law under the FAA, we note that he has no standing from 

which to assert this claim. Montauk-Caribbean Airways, Inc. v.

Hope, 784 F.2d 91, 97-98 (2d Cir.) (holding that Congress created 

no express or implied private right of action under the Federal 

Aviation Act), cert. denied, 479 U.S. 872 (1986); accord Air 

Transport Ass’n v. Public Utilities Commission, 833 F.2d 200, 

207-08 (9th Cir. 1987), cert. denied, 487 U.S. 1236 (1988). 
12

in his action (monetary damages in contrast to the injunctive 

relief sought by Sea Air), res judicata cannot be applied. This 

assertion is again contrary to the law. Restatement (Second) of 

Judgments § 25 comment f (“[a]fter judgment for or against the 

plaintiff, the claim is ordinarily exhausted so that the 

plaintiff is precluded from seeking any other remedies deriving 

from the same grouping of facts . . . .”). In addition, Huck 

declares without support that res judicata should be used only 

sparingly in civil rights cases. He further insists that res 

judicata cannot be applied where “it is based on a prior decision 

which is clearly erroneous.” These arguments amount to little 

more than a demand that the decision of the trial court be 

redecided on the merits -- an option Sea Air and Huck waived when 

they failed to appeal the initial judgment against Sea Air. 

Finally, Huck maintains that res judicata should not be applied 

where it would result in injustice. We find no injustice when 

the doctrine of res judicata is properly applied to prevent 

appellees from being subjected to “endless relitigation of issues 

already decided.” Bloch, 533 F. Supp. at 1359. This is 

especially so here, when even a cursory review of the doctrine's 

basic principles should have alerted counsel that Huck’s 

derivative suit was repetitious and without colorable legal or 

factual support. 

 In summary, we find no merit to any of Huck’s arguments that 

 the district court inappropriately applied res judicata to bar 

his claims against the appellees. It is clear that Huck’s 

derivative actions arose from the same core of operative facts 
13

and circumstances as the earlier Sea Air suit. It is also 

undisputed that there was privity between the parties in Huck’s 

suits and the earlier Sea Air action. Given that there was an 

identity of facts, claims, and parties between the Sea Air suit 

and Huck’s derivative actions we conclude that the application of 

res judicata to bar Huck’s action was proper. Accordingly, we 

will affirm the district court’s order granting the appellees’ 

motions for summary judgment and dismissing Huck’s suits. 

IV. 

 Huck also challenges the order of the district court 

awarding costs and attorneys’ fees to the appellees. At the 

outset, we note that Huck failed to oppose the appellees’ motion 

for costs and attorneys’ fees and thus cannot raise the issue for 

the first time on appeal. See Kiewit Eastern Co., Inc. v. L & R 

Construction Co., Inc., 44 F.3d 1194, 1203-04 (3d Cir. 1995) 

(affirming district court’s finding that party waived right to 

attorneys’ fees and costs because issue was not adequately raised 

before the court); McDonald v. McCarthy, 966 F.2d 112, 119 (3d 

Cir. 1992) (holding that defendants who had an opportunity to 

contest the accuracy and reasonableness of requested attorneys’ 

fees, but failed to do so, waived their right to raise objections 

on appeal); accord Chicago v. Matchmaker Real Estate Sales 

Center, 982 F.2d 1086, 1101 (7th Cir. 1992) (“By challenging the 

attorneys’ fees award for the first time on appeal, the 

defendants have waived the issue.”), cert. denied, 508 U.S. 972 

(1993); accord Pope v. MCI Telecommunications Corp., 937 F.2d 

258, 266-67 (5th Cir. 1991), cert. denied, 504 U.S. 916 (1992). 
14

Huck has offered no explanation for his failure to oppose the 

appellees’ motion. 

 Notwithstanding his waiver, we will briefly consider Huck’s 

challenges to the district court’s award of attorneys’ fees. 

Huck’s first contention is that the award of attorneys’ fees 

cannot be sustained if “the lower court erred in dismissing the 

suit on res judicata grounds.” Since we have already held that 

the application of res judicata was appropriate, Huck’s 

contention is meritless and cannot serve as the basis for 

reversing the award. 

 Huck next asserts that the award of was erroneous because 

the district court opinion did not explicitly find that Huck’s 

suits were frivolous or groundless. Essentially, Huck argues 

that because “[t]here is only one mention of the word `frivolous’ 

in [the] memorandum and it is with respect to a very limited part 

of the cases,” attorneys’ fees cannot be imposed as a matter of 

law. Huck’s contention, however, is patently wrong. The 

district court, in its order supporting the award of attorneys’ 

fees, expressly found that “both of these lawsuits were frivolous 

and groundless, lacking any factual or legal basis . . . .” 

Moreover, the fact that Huck’s claims were dismissed based on the 

application of res judicata further supports the district court’s 

conclusion that there was no basis upon which to bring these 

suits and thus they were frivolous. 

 Finally, Huck stands logic on its head and asserts that 

because the claims made by Sea Air in the earlier suit were not 

frivolous, his reassertion of those claims in his suits cannot be 
15

considered frivolous or groundless. We infer from his argument 

that Huck would have this court adopt the position that once 

particular claims are deemed not to be frivolous, they are not, 

and cannot be, frivolous no matter how many times and in what 

context they are reasserted. As with his other “legal arguments” 

challenging the award of attorneys’ fees, Huck offers no support 

for his position and we find it to be without merit. 

 It is clear that a court may award attorneys’ fees to a 

prevailing defendant in a civil rights action if the court finds 

that the action was frivolous. Flaherty, 40 F.3d at 60. Here, 

the district court expressly held that Huck’s suits “were 

frivolous and groundless, lacking any factual or legal basis . . 

. .” Based on our review of the record and our disposition of 

the present appeal, we agree with the district court’s assessment 

of the substance of Huck’s actions. Accordingly, we will affirm 

the order of the district court awarding costs and attorneys’ 

fees to the appellees. 

V. 

 One final matter: we observe that the appellees have not yet 

sought costs or damages under Federal Rule of Appellate Procedure 

38.4 Although we do not usually raise the issue of Rule 38 

damages sua sponte, and do not do so now, given our decision on 

the merits herein, the history of the case, and that appellees 

 

 

 4 Rule 38 reads in its entirety: 

If a court of appeals 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. 
16

may anticipate recovering attorneys’ fees herein, we feel it 

advisable to offer a note of instruction. 

 The purpose of an award of attorneys’ fees under Rule 38 is 

“to compensate appellees who are forced to defend judgments 

awarded them in the trial court from appeals that are wholly 

without merit, and to preserve the appellate court calendar for 

cases worthy of consideration.” Nagle v. Alspach, 8 F.3d 141, 

145 (3d Cir. 1993) (citations and internal quotations omitted), 

cert. denied, 510 U.S. 1215 (1994). We note that this appeal was 

wholly without merit. Indeed, the district court’s decision to 

award costs and attorneys’ fees to the appellees because it found 

Huck’s suits to be frivolous should have urged upon him and his 

counsel some extra caution, and given him pause to devote 

additional examination to the legal validity and factual merit of 

his contentions. Moreover, instead of producing strong legal 

arguments to convince us that his appeals were meritorious, 

Huck's counsel has offered unsupportable legal and factual 

conclusions and merely reargued the already-litigated claims. 

Hence, the predicate for an award under Rule 38 is met. 

 Rule 38, however, is not just a sanctions provision, 

arguably raising an obligation upon the court to act to protect 

its own integrity or that of a party. Instead, when the court 

determines that an appeal is frivolous, it is given the option of 

awarding damages upon "notice from the court," or, alternatively, 

awaiting a motion from the injured party. Because, however, the 

remedy this rule offers an injured party is more in the nature of 

an award upon a finding of liability in tort, we believe in this 
17

case the more sound jurisprudential approach is to stay our hand 

and await a request for redress, if appellees feel strongly 

enough, and consider themselves injured sufficiently by the 

action of appellant or its counsel on appeal. This permits the 

usual opportunities and procedures that attend a claim upon 

injury -- i.e., demand, discussion, settlement, alternate dispute 

resolution, etc. -- to function before we are called upon to act. 

VI. 

 In sum, we will affirm the orders of the district court 

dismissing the appellant’s suits and awarding costs and 

attorneys’ fees to the appellees. 
18

 

TO THE CLERK: 

 Please file the foregoing opinion 

 

 Circuit Judge 

DATED: