           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT United States Court of Appeals
                                                   Fifth Circuit

                                                                            FILED
                                                                           July 14, 2008

                                     No. 07-60779                     Charles R. Fulbruge III
                                   Summary Calendar                           Clerk


JEFFREY J FREY; APRIL MACFADDEN FREY

                                                  Plaintiffs-Appellants
v.

CHARLES BORDIS IV; JENNIFER SEKUL HARRIS; THOMAS A
PRITCHARD; BILLY PARLIN; GLENN BARLOW; NEIL HARRIS; RANDY
PIERCE; PAMELA THEREASA DAWSEY MACFADDEN

                                                  Defendants-Appellees



                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                             USDC No. 1:07-CV-896


Before JOLLY, DENNIS, and PRADO, Circuit Judges.
PER CURIAM:*
       Before us is an appeal of a district court’s decision to dismiss Plaintiffs’
claims against certain defendants. For the following reasons, we AFFIRM.
              I. FACTUAL AND PROCEDURAL BACKGROUND
       This case arises out of a dispute among the family members of Robin
Cooper and Joy MacFadden, who died in 1999 and 2000, respectively, and whose


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
                                  No. 07-60779

estates were probated in a Chancery Court in Mississippi. Plaintiff-Appellant
April MacFadden Frey is the daughter of the decedents, and Plaintiff-Appellant
Jeffrey Frey is April’s husband. Together, Plaintiffs assert claims against four
attorneys (Defendants-Appellees Charles Bordis IV, Jennifer Sekul Harris,
Thomas Pritchard, and Billy Parlin), three Chancellors (Defendants-Appellees
Glenn Barlow, Neil Harris, and Randy Pierce), and Defendant-Appellee Pamela
MacFadden, who is the wife of April’s brother Luther. Luther was the original
executor for the estates of the decedents. Plaintiffs assert that, through various
legal processes, Defendants have defrauded April out of her rightful inheritance.
Because the means allegedly used to deprive April of her inheritance are not
relevant to this appeal, we will not repeat the specific factual allegations here.
      As a result of their dissatisfaction with the probate proceedings, Plaintiffs
filed this suit pro se in federal court, bringing claims pursuant to 42 U.S.C.
§ 1983, including violations of the First and Fourteenth Amendments to the
United States Constitution and Sections Fourteen, Twenty-Four, Twenty-Five,
and Thirty-Five of the Mississippi Constitution.          In lieu of an answer,
Chancellors Barlow, Harris, and Pierce filed a motion to dismiss on the grounds
of sovereign immunity, absolute judicial immunity, and Younger abstention. In
response, Plaintiffs amended their complaint to make clear that they were suing
the Chancellors in their individual capacities only.
      The Chancellors filed another motion on July 10, 2007, re-urging the
district court to dismiss Plaintiffs’ claims against them. Plaintiffs did not file a
response, and the district court granted the motion on August 2, 2007. The
district court’s basis for the decision was Local Rule 7.2(C)(2) of the Uniform
Local Rules of the United States District Courts for the Northern District of
Mississippi and the Southern District of Mississippi. Local Rule 7.2(C)(2)
provides that “[i]f a party fails to respond to any motion, other than a motion for



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                                      No. 07-60779

summary judgment, within the time allotted, the court may grant the motion as
unopposed.”
      On August 6, 2007, which was four days after the district court granted
the Chancellor’s motion, Plaintiffs filed a motion to quash and set aside the
Chancellors’ motion to dismiss. On August 10, Plaintiffs filed a motion for
rehearing and to set aside the district court’s order dismissing the Chancellors.
Without waiting to see if the Chancellors intended to timely respond to the
motions, the district court denied the motions, reasoning that Plaintiffs had not
met the standard set forth in Rule 59(e) of the Federal Rules of Civil Procedure
and, alternatively, that the Chancellors were entitled to sovereign and judicial
immunity.
      On September 7, 2007, the district court dismissed Plaintiffs’ claims
against the remaining defendants sua sponte and without prior notice.1 The
district court stated that it lacked subject matter jurisdiction over the remaining
claims because the claims were not federal, noting that the remaining
defendants were private citizens and not state actors subject to liability under
§ 1983. Plaintiffs filed a timely notice of appeal, and we have jurisdiction
pursuant to 28 U.S.C. § 1291. We review the grant of a motion to dismiss de
novo. Chiras v. Miller, 432 F.3d 606, 610 (5th Cir. 2005).
                                   II. DISCUSSION
      Turning first to the district court’s dismissal of the Chancellors, we note
that, had the district court rested solely on Local Rule 7.2(C)(2), we might have
been compelled to reverse. Although the district court’s dismissal was without
prejudice, we have never approved of the automatic grant of dispositive motions
based on a party’s failure to respond. See Johnson v. Pettiford, 442 F.3d 917, 918
(5th Cir. 2006) (per curiam). Instead, we typically require a “clear record of



      1
          The remaining defendants had not yet appeared in the case.

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delay or contumacious conduct” before dismissal is appropriate. Id. at 919
(internal quotation marks omitted). There was no such delay in this case, as
Plaintiffs’ response was only a few days past due and Plaintiffs had not violated
any other rule of the court. However, because the district court eventually
identified alternative grounds for its dismissal, we need not rest our decision on
this local rule.
       The alternative grounds for the district court’s decision were sovereign
immunity and absolute judicial immunity. Because Plaintiffs specified in their
first amended complaint that they sought relief against the Chancellors only in
their individual capacities, we consider whether the Chancellors are entitled to
judicial immunity.2 It is well established that “judges defending against § 1983
actions enjoy absolute immunity from damages liability for acts performed in
their judicial capacities.” Sup. Ct. of Va. v. Consumers Union of the U.S., Inc.,
446 U.S. 719, 734-35 (1980); Bauer v. Texas, 341 F.3d 352, 357 (5th Cir. 2003)
(“Judges enjoy absolute immunity from liability for judicial or adjudicatory
acts.”); Vinson v. Prather, 879 So. 2d 1053, 1057 (Miss. Ct. App. 2004). In this
case, Plaintiffs’ claims against the Chancellors regard rulings that the
Chancellors made while acting in their capacities as judges on the Chancery
Court. The Chancellors are, thus, entitled to absolute judicial immunity.
       Plaintiffs’ argument on appeal consists of urging this court to abolish the
doctrines of sovereign immunity and absolute judicial immunity. Even were we
inclined to do so, we lack the power to overturn years of settled precedent from
this court and the Supreme Court. See United States v. Rodriguez-Jaimes, 481
F.3d 283, 288 (5th Cir. 2007) (“Absent an en banc or intervening Supreme Court


       2
         To the extent Plaintiffs still seek relief against the Chancellors in their official
capacities, we agree with the district court that such suits are barred by sovereign immunity.
See McCarthy ex rel. Travis v. Hawkins, 381 F.3d 407, 412 (5th Cir. 2004) (“[T]he principle of
state-sovereign immunity generally precludes actions against state officers in their official
capacities . . . .”).

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                                        No. 07-60779

decision, one panel of this court may not overrule a prior panel’s decision.”).
Consequently, the district court was correct to dismiss Plaintiffs’ claims against
the Chancellors.
       Plaintiffs provide no argument regarding whether the district court
properly dismissed the remaining defendants for lack of subject matter
jurisdiction under Rule 12(h)(3) of the Federal Rules of Civil Procedure;
therefore, Plaintiffs have waived any argument on that ground. See Yohey v.
Collins, 985 F.2d 222, 224-25 (5th Cir. 1993). We would be remiss, however, if
we did not note that the district court erred by concluding that it lacked subject
matter jurisdiction over the remaining claims. Regardless of whether the
remaining claims were based on state law rather than federal law, the district
court retained supplemental jurisdiction over them pursuant to 28 U.S.C.
§ 1367. See Arbaugh v. Y&H Corp., 546 U.S. 500, 514 (2006); Baker v. Farmers
Elec. Coop., Inc., 34 F.3d 274, 283 (5th Cir. 1994); see also Hefner v. Alexander,
779 F.2d 277, 281 (5th Cir. 1985). Therefore, the dismissal of any state law
claims should have been based on the district court’s discretion pursuant to 28
U.S.C. § 1367(c)(3), and not Rule 12(h)(3).3 This error, however, does not require
reversal.
       Therefore, for the foregoing reasons, we AFFIRM the judgment of the
district court.
       AFFIRMED.


       3
         It is also unclear that only state law claims remained, as Plaintiffs’ first amended
complaint grouped all of the claims and defendants together. Although the district court was
likely correct that Plaintiffs would not be able to establish any federal claims against the
remaining defendants, its conclusion was more along the lines of a decision under Rule 12(b)(6)
that Plaintiffs’ complaint failed to state a claim against the defendants. While a district court
can make such a ruling sua sponte, it usually must give the opposing party notice and an
opportunity to respond, neither of which was done in this case. See Carroll v. Fort James
Corp., 470 F.3d 1171, 1177 (5th Cir. 2006). Again, though, Plaintiffs waived any argument
on this ground by failing to brief it.


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