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. 09-50415

PHILIP L. STOTTER, Ph.D

Plaintiff-Appellant

v.

UNIVERSITY OF TEXAS AT SAN ANTONIO; GUY BAILEY; DAVID

JOHNSON

Defendants-Appellees

Appeal from the United States District Court

for the Western District of Texas

USDC No. 5:01-CV-434

Before DAVIS, WIENER, and SOUTHWICK, Circuit Judges.

PER CURIAM:*

Plaintiff-Appellant Philip Stotter, formerly a chemistry professor at the

University of Texas - San Antonio (UTSA), is before this court for the second

time on his 42 U.S.C. §1983 case implicating due process claims arising from the

alleged deprivation of property without notice and a reasonable opportunity to

be heard. This time he is appealing the district court’s grant of DefendantAppellee Guy Bailey’s Rule 50(b) Motion for a Judgment as a Matter of Law

United States Court of Appeals

Fifth Circuit

F I L E D

April 8, 2010

Lyle W. Cayce

Clerk

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No. 09-50415

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(JMOL) following a jury verdict favorable to Stotter at the conclusion of the trial

that followed our remand of this aspect of Stotter’s original appeal. 

We affirm the judgment of the district court based on its determination

that Stotter had no protectable property interest in various notebooks that are

alleged to have been lost or destroyed following the cleaning of Stotter’s office

and laboratory at Bailey’s behest.

I. FACTS AND PROCEEDING

Stotter, a tenured chemistry professor at UTSA, was employed there from

1974 to 2002 as a research professor. UTSA provided Stotter with laboratory

space, equipment, and other resources. On several occasions beginning in 1998,

Stotter was informed that his laboratory and office space posed safety hazards

and were otherwise not kept in good order. As early as October 31, 2000, he was

informed in writing that he must address these concerns or his lab would be

closed. Then, on the same day in January 2001, Stotter received two letters, one

advising that his lab would be closed and that UTSA would have it cleaned out,

and the other informing him that such action was being taken on instructions

from Bailey in his capacity as Provost. That action then took place on February

26, 2001.

Stotter filed suit in state court in May of that year. After Stotter’s suit

was removed to the district court, summary judgment was granted in favor of all

defendants, which judgment was affirmed on appeal except as to Stotter’s due

process claim against Bailey, which was remanded for further disposition. A

jury trial on that claim followed.

At the close of Stotter’s case and again at the close of the evidence, Bailey

made motions for a JMOL pursuant to Rule 50(a), asserting that Stotter did not

have a protectable interest in any of the property lost in the cleanup. Those

motions were denied, and the jury found that Bailey had violated Stotter’s right

to notice, that Stotter had a property interest in various items in his lab, and

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that he was entitled to $175,000 for the loss of his research notebooks, but was

entitled to nothing for the alleged loss of the chemicals, glassware, and the like.

Following the jury’s verdict, Bailey renewed his JMOL motion, this time under

Rule 50(b), which motion was granted by the district court, and judgment was

rendered in favor of Bailey.

II. ANALYSIS

As a threshold matter, Stotter argues that the district court erred in

considering Bailey’s Rule 50(b) motion because it so differed in content from his

earlier Rule 50(a) motions as to constitute waiver. After hearing oral argument

by able counsel for both parties, considering the applicable law as presented in

the parties’ briefs, and reviewing the record on appeal, we are satisfied that

Bailey’s Rule 50(b) motion was sufficiently reflective of his Rule 50(a) motions

as to avoid waiver. The district court was, therefore, entitled to consider and

rule on Bailey’s quest for a JMOL under his Rule 50(b) motion.

Likewise, our de novo review of the district court’s ruling on Bailey’s

JMOL motion satisfies us that it was providently granted. Stotter failed to

present sufficient evidence to establish that he had a protectable property

interest in the subject notebooks. Accordingly, no reasonable jury could have

found the presence of such an interest when, as here, the law does not allow it.

Stotter’s argument that his notebooks fall under the “scholarly or educational

materials” exception in UTSA’s IP policy is not borne out by the evidence. That

exception would apply only if the materials at issue were published or either

copyrighted or “copyrightable,” yet Stotter’s evidence was not sufficient to

demonstrate that the notebooks in question contained material other than

research data. Accordingly, the district court’s JMOL reversing the jury award

to Stotter is

AFFIRMED.

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