Opinion
Civil Action No. SA-01-CA-0937 FB (NN).
August 11, 2005
MEMORANDUM AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
The matter before the court is plaintiffs' motion for order to show cause why Regis Corporation should not be held in contempt. I have jurisdiction to enter this Memorandum and Recommendation pursuant to 28 U.S.C. § 636(b) and the District Court's order referring this matter to me.
Docket Entry 29.
Docket Entry 34.
By its motion, plaintiffs complain of defendants' alleged noncompliance with the agreed order and permanent injunction issued by this Court on April 5, 2002, prohibiting Regis Corporation from using the name Hairmasters in Bexar County as well as all counties contiguous to Bexar County. Specifically, plaintiffs complain that Regis has at all times relevant to this proceeding continued to list its salons under the name Hairmasters in the SBC phone directory business white pages, in violation of the permanent injunction. The parties have briefed the relevant issues and have conducted limited discovery. An evidentiary hearing was conducted on July 28 and 29, 2005. For the reasons set forth below, I recommend that Regis be found in civil contempt and further recommend that plaintiffs be awarded appropriate compensatory damages and attorneys fees and expenses.
Docket Entry 28.
Docket Entry 29.
Docket Entries 32, 33, 58 and 63; Docket Entry 51.
PROPOSED FINDINGS OF FACT
Plaintiffs are Maria Del Carmen Y. Mendoza and Carmina M. Villa, d/b/a Hairmasters. Hairmasters is a local hair and beauty salon operating in San Antonio for approximately the last thirty years. Maria Del Carmen Y. Mendoza is the owner of the salon, which is managed and operated by her daughter, Carmina M. Villa.
Docket Entry 1.
Evidentiary Hearing Testimony of Carmina M. Villa, July 28, 2005, p. 53. The salon, which was operated as Hairmasters by a previous owner, was bought by plaintiff Mendoza and her husband in approximately 1989. Id. at p. 54.
Id. at p. 53.
Defendants Regis Corporation, Hairmasters 1 thru 8, and Mastercuts 1 and 2 (Regis) are a national salon chain, with approximately 6,000 salons in North America. In August of 2000, Regis purchased a group of salons in San Antonio then operating under the name Hair Crafters. These salons were owned at the time by a franchisee of Regis. Regis changed the name of these salons to Hairmasters starting at the end of 2000.
Evidentiary Hearing Testimony of Paul Plate, July 29, 2005, p. 353.
Deposition of Paul Plate, June 17, 2005, pp. 11-12; Evidentiary Hearing Testimony of Paul Plate, July 29, 2005, p. 348.
Deposition of Paul Plate, June 17, 2005, p. 11.
Id. at pp. 11-12.
In 2001, plaintiffs first became aware of the existence of the Regis salons operating in San Antonio under the name Hairmasters. After a brief and unsuccessful attempt to deal directly with local and regional personnel of Regis concerning its use of the name Hairmasters, plaintiffs filed its original complaint with this court on October 15, 2001. After a limited amount of activity on the case, the parties entered into a confidential settlement agreement.
Evidentiary Hearing Testimony of Carmina M. Villa, July 28, 2005, pp. 55-56.
Id. at pp. 55-57.
Docket Entry 1.
Docket Entry 29, Exhibit C (confidential settlement agreement filed under seal as part of plaintiffs' motion for order to show cause why Regis Corporation should not be held in contempt).
Subsequent to execution of the settlement agreement, the parties presented the court with a stipulated motion for entry of agreed judgment and for permanent injunction. The agreed order was granted and entered on April 5, 2002, dismissing the underlying action and permanently enjoining Regis "from using the mark HAIRMASTERS, or any mark confusingly similar thereto, for men's and women's hair cutting, styling, coloring, perming, and nail care services in Bexar County as well as counties contiguous to Bexar County, for so long as Plaintiffs have not abandoned the HAIRMASTERS mark." It is uncontroverted that Regis changed the name of each of its San Antonio Hairmasters locations to Style America. It is also uncontroverted that Regis effected the name change to Style America prior to the issuance of the injunction at issue in this matter.
Docket Entry 27.
Docket Entry 28.
In November of 2001, Regis directed its media agency, TMP Worldwide (TMP), to replace Regis' Hairmasters listings with listings for Style America. TMP then requested SBC to change Regis' Hairmasters listings to Style America as early as January of 2002. Regis did nothing further to ensure that its phone listings were changed consistent with the settlement agreement and permanent injunction. Despite TMP's request, Regis' salons were again listed under Hairmasters in the October 2002 edition of the SBC phone directory. These listings went unnoticed by defendants, and were therefore published once again in the November 2003 edition of the directory.
Defendants' Exhibit 13 (email communication from Regis to TMP dated November 8, 2001 notifying TMP of the name change from Hairmasters to Style America; email response from TMP to Regis dated November 9, 2001 indicating TMP will request that San Antonio directory listings be changed to reflect the new name). TMP was, at all times relevant to this proceeding, the exclusive authorized agency for placing directory listings for Regis Corporation. See Evidentiary Hearing Testimony of Stacy Berndt, July 28, 2005, pp. 156-57.
Docket Entry 63, Exhibit A (business white pages listing change request from TMP to SBC dated January 24, 2002 requesting that Regis' Hairmasters listings be replaced with Style America listings).
Plaintiffs' Exhibit 6. The October 2002 directory did include the requested Salon America listings, but the requested deletion of the Hairmasters listings was not made. Id.
Plaintiffs' Exhibits 7-8. The phone numbers for Regis Corporation's Style America salons continued to be listed under "Style America," "Hair Masters" and "Hair Crafters" in the 2002, 2003 and 2004 editions of the SBC business white pages. Id. The November 2004 edition is the current edition.
On July 21, 2004, plaintiff Carmina M. Villa became aware that Regis continued to list its Style America salons under the name Hairmasters in the November 2003 SBC business white pages. She contacted her attorney that same day. Plaintiffs' attorney immediately notified defendants' local counsel of the listings, stressing that the deadline for requesting changes to next year's directory was only days away.
Evidentiary Hearing Testimony of Carmina M. Villa, July 28, 2005, p. 65.
Id.
Plaintiffs' Exhibit 32 (letter from Ted D. Lee to Kirt S. O'Neill dated July 21, 2004). In his letter, attorney for plaintiffs states: "I have been told July 25, 2004 is the absolutely [sic] cutoff to get any changes made in the Business White Pages. If this is true, then Regis Corporation needs toIMMEDIATELY notify the telephone company about the listing and get it changed for the next telephone directory." Id.
The next morning, Regis directed TMP to correct the listings. TMP submitted a request that same day for SBC to delete all of Regis' Hairmasters listings. Despite the fact that Regis had requested directory changes in the past that ultimately were not made, Regis again failed to do anything more to ensure its compliance with the injunction. And again, the listings were in fact not corrected and Regis' Style America salons continued to be listed under both Style America and Hairmasters in the November 2004 edition of the SBC business white pages. Incredibly, the only Hairmasters listing that was deleted from the November 2004 business white pages was plaintiffs'.
Plaintiffs' Exhibit 36 (July 22, 2004 email from Rachel Dierks of Regis to Julie Joint of TMP stating "[w]e need to get this changed immediately (in the next publication) to Style America.").
Plaintiffs' Exhibit 39.
Plaintiffs' Exhibit 8. Testimony elicited at the evidentiary hearing revealed that the requested deletions were not being made for a number of reasons. Some testimony was introduced to illustrate that Regis was operating under the misguided belief that requesting a change in a yellow page listing would automatically effect the same change in the listing's white pages counterpart. See Evidentiary Hearing Testimony of Stacy Berndt, July 28, 2005, pp. 153-54, 156. Further, there is some evidence on record that SBC was apparently unable to make Regis' and TMP's 2004 directory change requests because Regis had changed telephone service providers for its San Antonio salons, and SBC would therefore not make the changes at the time they were requested. See Plaintiffs' Exhibit 40 (emails between Regis and TMP dated July 27, 2004 noting that SBC was unable to delete listings because the numbers were set up with a different provider).
Plaintiffs' Exhibit 8. In its July 22, 2004 request to SBC to remove the Regis Corporation Hairmasters listings, TMP also requested the removal of plaintiffs' Hairmasters listing. See Plaintiffs' Exhibit 39.
On November 19, 2004, plaintiffs filed its motion for order to show cause why Regis Corporation should not be held in contempt. After some limited activity in the case, the parties were ordered to participate in alternative dispute resolution in January of 2005. The mediation was unsuccessful. On March 21, 2005, this court compelled limited discovery on the issues of liability and possible damages.
Docket Entry 29.
Docket Entry 39.
Docket Entry 43.
Docket Entry 51.
As noted above, plaintiffs now move the court to find defendants in contempt of the Court's April 5, 2002 Agreed Order and Permanent Injunction. Plaintiffs urge a finding of civil contempt and seek an award of compensatory damages. Plaintiffs concede, however, that they are unable to document any lost profits traceable to defendants' alleged contemptuous conduct. Plaintiffs also seek reasonable attorneys' fees and costs. Plaintiffs do not seek injunctive relief beyond that provided by the original injunction.
In their prior pleadings, plaintiffs sought additional forms of injunctive relief in addition to monetary damages. See Docket Entries 29 and 58. At the evidentiary hearing, however, attorney for plaintiffs clarified his request to include unspecified damages and attorneys fees and costs only.
In response to plaintiffs' allegations, defendants argue that they substantially complied with the agreed injunction and place blame for the alleged noncompliance on TMP, SBC and plaintiffs themselves. Defendants also contend that because plaintiffs are unable to document any profits they lost or profits defendants gained as a direct result of the alleged violation of the injunction, plaintiffs may not recover any damages beyond reasonable attorneys' fees and costs incurred.
See Docket Entries 32 and 63.
PROPOSED CONCLUSIONS OF LAW
a. Civil Contempt Standard
A party seeking a civil contempt order must demonstrate, by clear and convincing evidence, (1) that a court order was in effect, (2) that the order required certain conduct by the respondent, and (3) that the respondent failed to comply with the court's order. The contemptuous actions need not be willful so long as the contemnor actually failed to comply with the court's order. Stated more directly, willfulness is not an element of civil contempt. Although willful conduct is not required for a finding of contempt, a party may avoid a contempt finding where it can show that it has substantially complied with the order, or has made every reasonable effort to comply. b. Analysis
Lyn-Lea Travel Corp. v. Am. Airlines, Inc., 283 F.3d 282, 291 (5th Cir. 2002); Am. Airlines, Inc. v. Allied Pilots Assoc., 228 F.3d 574, 585 (5th Cir. 2000).
Am. Airlines, Inc. v. Allied Pilots Assoc., 228 F.3d 574, 585 (5th Cir. 2000).
Petroleos Mexicanos v. Crawford Enters., Inc., 862 F.2d 392, 401 (5th Cir. 1987).
U.S. Steel Corp. v. United Mine Workers of Am., Dist. 20, 598 F.2d 363, 368 (5th Cir. 1979); Vertex Distrib. Inc. v. Falcon Foam Plastics, Inc., 689 F.2d 885 (9th Cir. 1985).
Defendants concede that the injunction was and remains in effect, that the injunction prohibited use of the Hairmasters name, and that its business white page listings under the Hairmasters name violated the injunction. Accordingly, defendants continued directory listings under the name Hairmasters constitute a prima facie case of contempt.
Docket Entry 63, p. 3 ("Regis does not dispute that the Permanent Injunction was and is in effect, that the order required Regis to cease all usage of the Hairmasters name for its salons in the San Antonio area, or that the White Pages listings violate the court order.").
Defendants assert, however, that their efforts to comply with the injunction relieve them from contempt liability. In support of its position, defendants cite Vertex Distributing, Inc. v. Falcon Foam Plastics, Inc. Vertex involved a permanent injunction against the use of a registered trademark, including telephone directory listings. Upon discovering that the mark continued to be listed in the phone directory after issuance of the injunction, plaintiffs brought a contempt action. The district court, however, found that defendant, by its own vigilance, had discovered and corrected the violative listing before plaintiff brought its contempt action. The district court concluded that a finding of contempt was therefore not warranted. The Ninth Circuit affirmed, noting that
Vertex Distrib. Inc. v. Falcon Foam Plastics, Inc., 689 F.2d 885 (9th Cir. 1985); Docket Entry 63 at n. 11 (defendants also cite to U.S. Steel Corp. v. United Mine Workers of Am., Dist. 20, 598 F.2d 363, 368 (5th Cir. 1979) for its substantial compliance defense).
Vertex, 689 F.2d at 892.
Vertex introduced evidence of only one violation: the two listings in the 1980 Canoga Park-Reseda-Agoura Yellow Pages Directory. Defendants introduced evidence that this violation had been discovered and steps taken to correct it in November, 1980, prior to Vertex's application for an order holding defendants in contempt. We hold that the district court did not abuse its discretion in concluding that defendants had made every reasonable effort to comply with the court's order and that defendants were therefore not in contempt. Defendants' "every reasonable effort" constituted substantial compliance.
Id.
The First Circuit decision of AMF, Inc. v. Jewett also helps to define the parameters of the substantial compliance defense to contempt. In Jewett, defendant was sued for unauthorized use of plaintiff's name in violation of the Lanham Act and related state laws. The parties settled during litigation and the district court issued a consent decree prohibiting defendant's use of plaintiff's name. Three years after the entry of the consent decree, plaintiffs brought a contempt action due, in part, to defendant's continued use of plaintiff's name in an industrial directory as well as a local telephone directory. The district court, noting that defendant had tried unsuccessfully to have the listings deleted, held that defendant had "not acted in defiance of the decree but had taken the appropriate steps necessary for compliance." The court therefore declined to hold the defendant in contempt of the decree.
AMF, Inc. v. Jewett, 711 F.2d 1096 (1st Cir. 1983).
Id. at 1100.
Id.
Id. at 1102-03.
Id. at 1103.
Id.
The First Circuit affirmed in part and reversed in part the district court's decision. In affirming the finding of no contempt regarding the industrial directory, the court acknowledged that defendant, through its own vigilance, had identified and corrected the improper listing prior to the plaintiff's action for contempt. The court agreed that this was sufficient to avoid contempt liability under the circumstances. In reversing the district court's ruling concerning the ongoing telephone listings, however, the court noted that because the violative listings had continued to run for a period of two years, defendants were clearly on notice of the ongoing violation of the consent decree. The court noted that "defendants sat idly by for the next two years knowing, or having reason to know, that the old name was continuing to be used. We do not think the court could in such circumstances refuse a finding of civil contempt."
Id.
Id. at 1104.
Unlike the facts of Vertex and Jewett, the record in the instant case does not support a finding that the defendant substantially complied with the court's injunction. A review of the record reveals that defendants' efforts to comply with the court's injunction were minimal, at best. Regis' claim that it has substantially complied with the injunction lacks merit and must therefore be denied.
Regis' first attempt to change its Hairmasters telephone directory listings came in November of 2001, approximately five months before the issuance of the permanent injunction. To effect this change, Regis sent a routine email to TMP, informing TMP of the name change from Hairmasters to Style America. TMP indicated at that time that the changes would be made, and Regis made no further inquiry.
Docket Entry 58, Exhibit D (Deposition Testimony of Stacy Brendt, June 17, 2005, pp. 13-14); Plaintiffs' Exhibit 24 (email from Stacy Brendt to Julie Joint of TMP).
Plaintiffs' Exhibit 24.
At the time the injunction was issued in April of 2002, the Regis employee responsible for telephone directory listings was Stacy Berndt. In her deposition testimony, Ms. Berndt acknowledged that no one at Regis had ever informed her of the existence of the injunction. It appears from the record that of the Regis employees responsible for directory listings, not one was informed of the existence of the injunction prior to July of 2004. Nor does the record present any evidence that Regis took any action beyond normal procedures to ensure the deletion of the listings in question. Regis has offered no evidence that it ever took the initiative to follow up with TMP or SBC personnel concerning the change requests or to review the directories to ensure that they were in compliance with the injunction. Consequently, the prohibited listings have continued uninterrupted in three separate SBC phone directories for a period of more than three years after the issuance of the injunction. Taken in totality, defendants' actions reflect only a casual effort to comply with the permanent injunction, and do not rise to a level of substantial compliance. Defendants have not made every reasonable effort to comply with the injunction. This evidence compels a finding of civil contempt.
Deposition Testimony of Stacy Berndt, June 17, 2005, p. 25.
Id.
Docket Entry 58, Exhibit D (Deposition Testimony of Stacy Brendt, June 17, 2005, pp. 14-16). On July 21, 2004, Stacy Berndt of Regis emailed Rachel Dierks of Regis to inform her of an "urgent legal request" and notifying her that Regis is "not allowed" to use the Hairmasters name in the San Antonio market. This email was then forwarded verbatim to TMP by Ms. Dierks on July 22, 2004. Plaintiff's Exhibit 37.
c. Damages
Generally, a fine for civil contempt should not exceed complainant's actual losses caused by the contemptuous actions of respondent. Where a civil contempt fine exceeds the actual loss suffered by the complainant, the fine may become punitive in nature, and therefore more appropriate pursuant to a finding of criminal contempt. Thus, "where one party violates [a] court order rendered for the benefit of another party, the other party, upon successful complaint of the violation, may have a contempt order requiring that the violator reimburse the complainant his actual loss." Fifth Circuit law dictates that civil contempt awards be remedial and compensatory in nature, and not serve as punishment for the contemptuous acts.
N.L.R.B. v. Laborers' Int'l Union of N. America, 882 F.2d 949, 955 (5th Cir. 1989), quoted in American Airlines, Inc. v. Allied Pilots Ass'n, 53 F.Supp.2d 909, 943 (N.D.Tex. 1999). See also Petroleos Mexicanos v. Crawford Enters., Inc., 826 F.2d 392 (5th Cir. 1987) ("sanctions for civil contempt are meant to be wholly remedial and serve to benefit the party who has suffered injury or loss at the hands of the contemnor.") (internal citations and quotations omitted); Northside Realty Assocs., Inc. v. United States, 605 F.2d 1348 (5th Cir. 1979) ("Ordinarily, of course, the civil contempt fine must not exceed the actual loss to the complainant caused by respondent's violation of the decree in the main cause plus complainant's reasonable expenses in the proceedings necessitated in presenting the contempt for the judgment of the court.") (superceded by statute on other grounds).
N.L.R.B. v. Laborers' Int'l Union of N. America, 882 F.2d 949, 955 (5th Cir. 1989).
Thyssen, Inc. v. S/S Chuen On, 693 F.2d 1171, 1173 (5th Cir. 1982).
Petroleos Mexicanos v. Crawford Enters., Inc., 826 F.2d 392, 399 (5th Cir. 1987).
Plaintiffs presented no evidence of actual dollar losses incurred by them individually or by their salon due to Regis' continued use of the name Hairmasters in the three business white page directories published subsequent to the settlement agreement in 2002. Plaintiffs assert that the proper measure of plaintiffs' losses may be approximated by measuring defendants' profits during the time that defendants were in contempt of the court's injunction. As noted, however, the proper measure of damages in a civil contempt action is not defendants' profits, but the losses sustained by the plaintiffs.
See Docket Entry 38.
While plaintiffs urge a liberal theory of compensatory damages, defendants propose an inappropriately narrow definition, limiting plaintiffs' recovery to only those damages which may be quantified. Returning to the Fifth Circuit's directive, the law's response to civil contempt is remedial in nature. Compensatory damages typically remedy those elements of harm which may be calculated, but also those legally recognized losses which are non-pecuniary and those which cannot be quantified with adequate certainty.
See United States Court of Appeals, Fifth Judicial Circuit, Pattern Jury Instructions, Civil Cases, § 15.2, Compensatory Damages (2004) ("If you decide to award compensatory damages, you should be guided by dispassionate common sense. Computing damages may be difficult, but you must not let that difficulty lead you to engage in arbitrary guesswork. On the other hand, the law does not require that the plaintiff prove the amount of his losses with mathematical precision, but only with as much definiteness and accuracy as the circumstances permit.").
As noted, the law of the Fifth Circuit requires that compensatory damages in a civil contempt action be proved with a reasonable degree of certainty. It is equally true, however, that Fifth Circuit jurisprudence recognizes the award of more abstract damages in a civil contempt setting. A judicial sanction in a civil contempt setting may be employed to compensate the complainant for the losses it has sustained. This court has broad discretion in the assessment of damages to compensate a civil contempt complainant for its losses.
See, e.g., Sebastian v. Texas Dept. of Corrections, 558 F.Supp. 507 (S.D.Tex 1983) (awarding $5,959.00 in civil contempt proceeding for plaintiff's loss of reputation, mental distress and humiliation); In re Reno, 299 B.R. 823 (Bkrtcy.N.D.Tex. 2003) (awarding $8,681.00 in civil contempt damages for plaintiff's mental anguish).
American Airlines v. Allied Pilots Ass'n, 228 F.3d at 585 (5th Cir. 2000).
Id.
At the evidentiary hearing, plaintiff Carmina Villa testified that in July 2004 she discovered that Regis was continuing to list its salons under her Hairmaster name in the business white pages — more than two years after their agreed settlement of the previous lawsuit. She immediately attempted to contact someone at Regis to remedy the situation without success. She contacted SBC for information. She then contacted her attorney for assistance. Despite plaintiffs' counsel's urgent request for attention to the apparent violation of the injunction, Regis remained silent and failed to contact plaintiffs or their attorney. The errors were not corrected in the next edition of the directory white pages, and plaintiffs' listing was deleted. It became necessary for plaintiffs to reopen this case to obtain the relief they negotiated in 2002. Plaintiff Villa's testimony concerning her failed attempts to obtain answers and compliance from Regis, and the frustration she experienced at every turn as a result of Regis' indifference and refusal to take responsibility for and correct the obligations it assumed through the settlement agreement in 2002, warrant an award of damages in the amount of $5,000.
d. Attorneys' Fees and Costs
The prevailing party in a contempt proceeding may recover the out-of-pocket costs it incurs in discovering the contemptuous conduct and bringing it to the court's attention. In Fifth Circuit jurisprudence, there is no requirement that the contemnor's actions be willful in order for the aggrieved party to recover reasonable attorneys' fees and costs. A finding of contempt is alone sufficient for the aggrieved party's recoupment of reasonable attorneys' fees and costs.
Lyn-Lea Travel Corp. v. Am. Airlines, Inc., 283 F.3d 282, 290 (5th Cir. 2002); Northside Realty Associates, Inc. v. United States, 605 F.2d 1348 (5th Cir. 1979); Mead Johnson Co., v. Baby's Formula Service, Inc., 402 F.2d 23 (5th Cir. 1968).
Id.
Plaintiffs have submitted its motion for attorneys' fees and expenses along with an affidavit in support thereof requesting a total of $94,113.55 in fees and costs. The court may not award an amount of fees and costs beyond those reasonably and necessarily incurred in light of defendants' continued violation of this Court's order.
Docket Entry 74.
Blum v. Stenson, 104 S.Ct. 1541, 1548 (1984); Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974).
Based on the legal standard for the reasonableness of attorneys' fees set forth above, I recommend that the District Court include an award of attorneys fees and costs in an amount to be determined by separate ruling after consideration of the objections of defendants. I also recommend that the parties confer in an attempt to reach an agreement regarding the amount of fees and expenses.
RECOMMENDATION
For the reasons stated herein, I recommend that defendants be found in civil contempt of the agreed order and permanent injunction of April 5, 2002, that plaintiffs be awarded damages in the amount of $5,000, and that plaintiffs be reimbursed for all reasonable and necessary attorneys' fees incurred in attempting to obtain defendants' compliance with the order, in an amount to be determined by separate order.
Instructions For Service and Notice of Right to Object/Appeal
The United States District Clerk shall serve a copy of this Memorandum and Recommendation on each and every party either (1) by certified mail, return receipt requested, or (2) by facsimile if authorization to do so is on file with the Clerk. According to 28 U.S.C. § 636(b)(1) and Federal Rule of Civil Procedure 72(b), any party who desires to object to this report must serve and file written objections to the Memorandum and Recommendation within 10 days after being served with a copy unless this time period is modified by the District Court. A party filing objections must specifically identify those findings, conclusions or recommendations to which objections are being made and the basis for such objections; the District Court need not consider frivolous, conclusive or general objections. Such party shall file the objections with the Clerk of the Court, and serve the objections on all other parties and the Magistrate Judge. A party's failure to file written objections to the proposed findings, conclusions and recommendations contained in this report shall bar the party from a de novo determination by the District Court. Additionally, any failure to file written objections to the proposed findings, conclusions and recommendations contained in this Memorandum and Recommendations within 10 days after being served with a copy shall bar the aggrieved party, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions accepted by the District Court.
See Thomas v. Arn, 474 U.S. 140, 149-52 (1985).
Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996).