November 2009
SARBANES-OXLEY ACT Thanedar v. Time Warner, Inc. , No. 08-20734 (5th Cir. Nov. 3, 2009) (unpublished) (ALJ No. 2006-SOX-79) PDF | HTML
TRIAL JUDGE'S DISCRETION IN MANAGING TRIAL; ORDER LIMITING TIME FOR PRESENTATION OF EACH SIDE'S CASE
In Thanedar v. Time Warner, Inc. , No. 08-20734 (5th Cir. Nov. 3, 2009) (unpublished) (ALJ No. 2006-SOX-79), the appellant objected on appeal that the district court's order limiting the appellees to 8 hours and the appellant to 17 hours at trial deprived him of due process and a fair trial. Because the appellant did not raise an objection before the trial judge, the court of appeals applied a plain error standard of review. The court wrote:
"[A] district judge has broad discretion in managing his docket, including trial procedure and the conduct of trial." Sims v. ANR Freight Sys., Inc. , 77 F.3d 846, 849 (5th Cir. 1996). In setting the amount of time for trial, the district court considered each party's estimate of the time needed. The court continually reminded both parties of the time used and the time remaining for presentation of each side's case. The court also offered suggestions to Thanedar on how to focus his questioning of witnesses so as to preserve his time. We find no evidence in the record that the order was issued or enforced in a manner that deprived Thanedar of due process.
RES JUDICATA; PRIOR TITLE VII DISCRIMINATION CLAIM GROUNDED IN SAME NUCLEUS OF OPERATIVE FACT AS SOX CLAIM; DIFFERENCE IN RETALIATORY MOTIVE DOES NOT PREVENT APPLICATION OF CLAIM PRECLUSION
In Thanedar v. Time Warner, Inc. , No. 08-20734 (5th Cir. Nov. 3, 2009) (unpublished) (ALJ No. 2006-SOX-79), the Fifth Circuit upheld the district court's grant of judgment on the appellant's SOX claim under the doctrine of res judicata based on a finding that the claim should have been litigated in the appellant's Title VII lawsuit. Applying the "transactional test," which considers whether the two claims rest on the same nucleus of operative facts, the court stated that the operative facts defines the claims — not the relief requested, legal theories or rights asserted. Thus, "[t]he fact that the retaliatory motive asserted in the Title VII suit was not identical to that of the Sarbanes-Oxley claim does not bar a finding of res judicata." Slip op. at 9. The court noted that it previously held that claims asserting different grounds for wrongful termination may nevertheless be subject to claim preclusion. The court agreed with the district court aptly that both of the appellant's lawsuits focused "'on one critical issue: whether Thanedar's employer had a legitimate and lawful reason for taking the adverse employment action of which he complains.'" Slip op. at 10 (quoting district court). The court held that this was sufficient to establish a "same nucleus of operative fact."
PRECLUSION ORDER BASED ON WHISTEBLOWER'S VEXATIOUS LITIGATION
In Thanedar v. Time Warner, Inc. , No. 08-20734 (5th Cir. Nov. 3, 2009) (unpublished) (ALJ No. 2006-SOX-79), the appellant argued that the district court's preclusion order — which prevented him from filing any motions, actions, or complaints in that district court that directly or tangentially raised an issue adjudicated in the instant case without first obtaining leave of the court— violated his due process rights and was not based on any evidence of record. The Fifth Circuit noted:
It is well-settled that a plaintiff's pro se status does not give him a "license to harass others, clog the judicial machinery with meritless litigation, and abuse already overloaded court dockets." Farguson v. MBank Houston, N.A. , 808 F.2d 358, 359 (5th Cir. 1986). There is no constitutional right to prosecute frivolous actions, and preclusion orders are appropriate tools for deterring vexatious filings. Kaminetzky v. Frost Nat'l Bank of Houston , 881 F. Supp. 276, 277-78 (S.D. Tex. 1995). When issuing such an order, however, a court must ensure that it is "tailored to protect the courts and innocent parties, while preserving the legitimate rights of litigants." Farguson , 808 F.2d at 360.
The court found that in the instant case there had been an ample basis for the preclusion order based on the appellant's behavior in a prior Title VII lawsuit and in his litigation tactics in the instant SOX claim, and that the district court's order had been narrowly tailored.