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

                                                 FILED
                                                                         November 23, 2009

                                     No. 09-40431                      Charles R. Fulbruge III
                                   Summary Calendar                            Clerk



ERIC VON DRAKE,

                                                   Plaintiff-Appellant
v.

ST PAUL TRAVELERS INSURANCE CO; BYRNE, MEAD, &
SMITHERMAN LAW FIRM; LIBERTY MUTUAL AUTOMOTIVE
INSURANCE COMPANY; SEDGWICK, DETERT, MORGAN & ARNOLD
LAW FIRM; MARK TILLMAN; ALICA TATUM ANDREWS; JESSICA
SETTLER; HARTFORD INSURANCE CO; ABBASS SEKHAVAT; JOAN
BAZAR; LISA DEAN HULL; LEDINE SANCHEZ; TERESA G GRAY;
SPENCER BROWNE; HEYGOOD, REYES, ET AL LAW FIRM; MARTIN
HOFFMAN; GREG GRIFFITH; MARTIN, DISIERE, JEFFERSON &
WISDOM; LEVON G HOVATANIAN; MOLLY MEREDITH FRANCIS;
JAMES A MOSELEY; VALENCIA NASH; JESSICA STETTLER,

                                                   Defendants-Appellees




     Appeal from the United States District Court for the Eastern District of
                                    Texas
                                 6:08-CV-301


Before DAVIS, SMITH, and DENNIS, Circuit Judges.
PER CURIAM:*


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 09-40431

      Plaintiff-Appellant Eric Drake, proceeding pro se, filed multiple suits
arising from two alleged automobile accidents against St. Paul Travelers
Insurance Company, the Byrne, Mead, & Smitherman law firm, Liberty Mutual
Automotive Insurance Company, the Sedgwick, Detert, Morgan, & Arnold law
firm, Mark Tillman, Alicia Tatum Andrews, Jessica Settler, Hartford Insurance
Company, Abbass Sekhavat, Joan Bazar, Lisa Dean Hull, Ledine Sanchez,
Teresa G. Gray, Spencer Browne, the Heygood, Reyes law firm, Judge Martin
Hoffman, Greg Griffith, the Martin, Disiere, Jefferson, & Wisdom law firm,
Levon G. Hovatanian, Justice Molly Meredith Francis, Justice James A.
Moseley, Judge Valencia Nash, and Jessica Stettler (collectively “the
defendants”). In the most recent suit filed by Drake, the district court adopted
the Report and Recommendations of U.S. Magistrate Judge John D. Love, and
granted the defendants’ motions to dismiss the suit and denied as moot Drake’s
motions for evidentiary hearings. The district court also denied Drake’s Motion
for Default Judgment against two of the defendants. The district court also
denied the defendants’ Motions for Entry of Vexatious Litigant Order. For the
following reasons, we AFFIRM the judgment of the district court.


                                        I.
      We recite the thorough facts of Magistrate Judge Love:
            Plaintiff was involved in an automobile accident with
      Defendant Alice Tatum Andrews, in Dallas County, Texas in May
      2004. Thereafter, Plaintiff filed a lawsuit against Andrews and
      Plaintiff’s insurance carrier Liberty Mutual Automotive Insurance
      Company, in the 44th Judicial Court of Dallas County; Drake
      represented himself in the lawsuit. On August 30, 2004, Visiting
      Judge Kent Sims entered an order in that case declaring Drake to
      be a vexatious litigant and ordering Drake to post security or have
      his lawsuit dismissed. In response, Drake filed a notice of nonsuit
      in which he asserted that he would re-file his lawsuit in another
      court with additional defendants.


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                            No. 09-40431

       Drake filed a second lawsuit against Andrews in the United
States District Court for the Eastern District of Texas—Texarkana
Division against many of the defendants named in the present
lawsuit, including Liberty Mutual Automotive Insurance Company,
Alice Andrews, Lisa D. Hull, Jessica Settler, Hartford Insurance
Company, Abass Sekhavat, and Joan Bazar. He alleged a variety
of claims, including racial discrimination arising from the denial of
an insurance claim. Plaintiff later voluntarily dismissed those
claims. Less than two weeks later, Defendant Spencer Browne of
Defendant law firm Heygood Reyes filed a similar suit on Drake’s
behalf in the 68th Judicial District Court, Dallas, Texas, naming
Alice Andrews and Liberty Mutual Automotive Insurance Co. as
defendants. Mr. Browne later withdrew as Plaintiff’s attorney.
Andrews moved to have Plaintiff declared a vexatious litigant.
Defendant Judge Martin Hoffman denied the motion finding that
Chapter 11 of the Texas Civil Practice & Remedies Code did not
apply because, although Plaintiff was proceeding pro se by the time
of the hearing, he had been represented by counsel when the suit
was initially filed.
       Andrews hired Defendants Greg Griffith, Levon Hovnatanian
and the law firm of Martin, Diseire, Jefferson & Wisdom to
represent her in a mandamus action seeking to reverse Judge
Hoffman's ruling on the vexatious litigant motion. The Fifth Court
of Appeals, in an opinion authored by Defendant Justice Molly
Francis and joined by Defendant Justice James Moseley, found that
Chapter 11 of the Texas Civil Practice & Remedies Code applied to
pro se litigants who were represented at the initial filing of the suit.
Thereafter, Judge Hoffman declared Plaintiff a vexatious litigant.
Plaintiff’s lawsuit was subsequently dismissed with prejudice after
he failed to provide the required bond.
       In April 2008, Plaintiff filed essentially the same lawsuit in
Small Claims Court, Dallas County, Texas. That case was
dismissed by Defendant Judge Valencia Nash on June 12, 2008 for
failure to comply with the terms of the vexatious litigant order.
       On June 9, 2008, Plaintiff filed a Verified Petition to
Perpetuate Testimony in the Eastern District of Texas, Marshall
Division, that sought the depositions of Alice Andrews, Greg
Griffith, Jessica Stettler, and Levon Hovnatanian. All four of these
individuals are defendants in this lawsuit. Judge Ward transferred
the action sua sponte to the Northern District of Texas, Dallas
Division. The case was assigned to Magistrate Judge Stickney who


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      sent Plaintiff a detailed questionnaire on August 1, 2008 seeking
      additional information about Plaintiff’s allegations. Subsequently
      and without responding to the questionnaire, Plaintiff withdrew
      his request for discovery and that withdrawal was filed on August
      15, 2008.
             In September 2008, after filing the present suit, Drake
      petitioned the United States District Court for the Western District
      of Texas–Austin Division for permission to take the oral depositions
      of Hovnatanian and Andrews, claiming he “anticipated” being a
      party to a lawsuit against Andrews and her attorneys for fraud,
      possible conspiracy to commit fraud, libel/slander, consumer fraud,
      deceptive trade practices, and other similar violations of civil law.
      In its order dismissing Drake’s case, the court stated “Essentially
      [Drake] appears to be attempting to circumvent the state court’s
      determination that he is a vexatious litigant.”
             A second accident is also involved in this lawsuit. Plaintiff
      claims that he was involved in a second accident on May 31, 2005 in
      Dallas County, Texas. Plaintiff claims that an entity called
      “Travelers”, Teresa Gray, Shannon Smitherman and the law firm of
      Byrne Mead & Smitherman, the outside counsel hired by Travelers,
      violated his civil rights when they denied his claim for benefits
      under an automobile policy he claims was issued by Travelers. St.
      Paul Travelers Insurance Co. has answered in this lawsuit,
      although it claims that it is not the Travelers entity referenced in
      Plaintiff’s complaint.
             In addition to the entities mentioned above, Plaintiff alleges
      that Defendants Hartford Insurance Co., Lisa Hull, Mark Tillman
      of law firm Sedgwick, Detert, Morgan & Arnold are somehow
      involved in his claims against Liberty Mutual Automotive Insurance
      Co. He claims that Ledine Sanchez and Teresa Gray are somehow
      involved in his claims against Alice Andrews, Judge Hoffman,
      Justice Francis, and Justice Moseley. He claims that Defendant
      Joan Bazar violated HIPAA by giving out his personal information
      to Abbass Sekhavat because of his race. Finally, Plaintiff claims
      that Jessica Settler and Jessica Stettler are attorneys somehow
      involved in one of the cases in which Plaintiff was declared a
      vexatious litigant.

Report and Recommendation of United States Magistrate Judge, at 2–4
(citations omitted).



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                                 No. 09-40431

                                        II.
      In reviewing the facts, the Magistrate Judge divided the defendants into
three categories: Andrews, the Judges, and all of the remaining defendants. The
Magistrate Judge recommended the claims be dismissed against each category
of defendant for the following reasons.


                                        A.
      The Magistrate Judge recommended the claim against Andrews be
dismissed under the Rooker-Feldman doctrine. See Rooker v. Fidelity Trust Co.,
263 U.S. 413 (1923); District of Columbia Court of Appeals v. Feldman, 460 U.S.
462 (1983). In 2005, the U.S. Supreme Court held that application of the Rooker-
Feldman doctrine “is confined to cases . . . brought by state-court losers
complaining of injuries caused by state-court judgments rendered before the
district court proceedings commenced and inviting district court review and
rejection of those judgments.” Exxon Mobil Corp. v. Saudi Basic Indus. Corp.,
544 U.S. 280, 284 (2005).
      This case does not meet the narrow set of cases governed by Rooker-
Feldman. In his present complaint, Drake is not inviting the district court to
review and reject the judgment of the Texas state courts. Instead, Drake is
seeking damages for Andrews’ allegedly fraudulent statements. Thus, Rooker-
Feldman is inapplicable in this case.
      Though Rooker-Feldman is inapplicable, we find that the district court did
not err in dismissing Drake’s claim against Andrews as the court lacked subject
matter jurisdiction. Drake asserts subject matter jurisdiction based on diversity
and 42 U.S.C. §§ 1981 and 1983. None of these are applicable. Drake and
Andrews are both Texas domiciliaries, thus there is no diversity jurisdiction.
Sec. 1981 is inapplicable, among other reasons, because Drake failed to allege
any facts that indicate Andrews intended to discriminate against him based on

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                                  No. 09-40431

his race. See Arguello v. Conoco, Inc., 330 F.3d 355, 358 (5th Cir. 2003). Finally,
§ 1983 is inapplicable to Andrews because Andrews is not a state actor.
Therefore, this court lacks subject matter jurisdiction over the claim against
Andrews.


                                        B.
      The Magistrate Judge recommended the claims against the Judges be
dismissed based on judicial immunity. Drake argues the Judges are not entitled
to judicial immunity because their actions were outside the scope of their judicial
employment.     We find no merit to Drake’s argument.           Absolute judicial
immunity extends to all judicial acts which are not performed in the clear
absence of all jurisdiction. Stump v. Sparkman, 435 U.S. 349 (1978). Applying
the Adams v. McIlhany factors to this case, as the Magistrate Judge did, it is
clear that the acts performed by the Judges were judicial acts. See 764 F.2d 294,
297 (5th Cir. 1985). Moreover, none of these actions were performed in the clear
absence of all jurisdiction.


                                        C.
      The Magistrate Judge recommended the claims against the remaining
defendants be dismissed because of Drake’s failure to state a basis for subject
matter jurisdiction. Drake asserts subject matter jurisdiction based on diversity
and 42 U.S.C. §§ 1981, 1983, 1985, and 1986. None of these grant this court
subject matter jurisdiction.
      Drake has not alleged the domicile of all of the remaining defendants. The
defendants whose domicile Drake has alleged are not diverse. As such, diversity
jurisdiction is inapplicable.
      Jurisdiction under the Civil Rights statutes is also inapplicable. None of
the remaining defendants are state actors, therefore they may not be sued under

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                                   No. 09-40431

§ 1983. Drake has failed to allege any facts that support his belief that the
defendants engaged in their conduct because of his race, a requirement under
§§ 1981 and 1985. See Arguello, 330 F.3d at 358; McLellan v. Mississippi Power
& Light Co., 545 F.2d 919, 923 (5th Cir. 1977). This court has held that a valid
§ 1985 claim is a prerequisite to a § 1986 claim. Bryan v. City of Madison, 213
F.3d 267, 276 (5th Cir. 2000). Because Drake does not have a valid § 1985 claim,
he does not have a valid § 1986 claim.


                                        III.
         In addition to dismissing all claims against the defendants, the district
court denied as moot Drake’s Motions for Evidentiary Hearings. The district
court also denied Drake’s Motion for Default Judgment as to defendants Bazar
and Sekhavat because both defendants filed motions within days of being served.
We find the district court did not err in denying these motions.
         Finally, the district court denied the defendants’ Motions for Entry of a
Vexatious Litigant Order. We find the district court did not abuse its broad
discretion in denying this motion.


                                  CONCLUSION
         For the reasons stated above, we AFFIRM the judgment of the district
court.




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