     Case: 16-20796      Document: 00514506399         Page: 1    Date Filed: 06/08/2018




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

                                                                                FILED
                                      No. 16-20796                           June 8, 2018
                                                                           Lyle W. Cayce
UNITED STATES OF AMERICA,                                                       Clerk


                                                 Plaintiff–Appellee,
v.

MICHAEL CARTER,

                                                 Defendant–Appellant.


                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No. 4:16-CV-147


Before SMITH, WIENER, and WILLETT, Circuit Judges.
PER CURIAM:*
       The United States sued Michael Carter to collect on a nearly 30-year-old
student loan. Carter insisted the loan was not his and that the signature on
the promissory note was a forgery. Unpersuaded, the district court granted
summary judgment for the Government, finding that Carter failed to produce
any evidence of forgery beyond his own affidavits repeating the denials in his
pleadings.
       We AFFIRM.




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                     No. 16-20796
                                            I
      The United States sued Michael Carter to collect on a decades-old
student loan. The Government attached to its complaint a promissory note that
it claims Carter signed in 1986 to secure a $2,500 loan from Bank IV Wichita.
At the top of the note, Carter handwrote his name and social security number.
In the field labeled “Your Address,” Carter listed an address in Houston.
       The Government also attached a certificate of indebtedness, in which a
Department of Education employee certified the following under penalty of
perjury: (1) Carter executed a promissory note on May 5, 1986 in exchange for
a $2,500 loan from Bank IV Wichita; (2) Carter defaulted on the loan on
October 16, 1987 and has made no payments since; (3) the note was assigned
to the Department of Education on January 6, 1993; and (4) the total debt as
of December 8, 2014 was $8,551.28.
       Carter filed a motion to dismiss, which the district court denied. Carter
then filed his Answer. He claimed that he had no reason to apply for the loan,
that he was living in Pasadena, Texas in 1986, 1 that the signature was a
forgery, and that, anyway, he would have been entitled to debt forgiveness
because the school he allegedly attended was a fraud. Carter attached two
affidavits to his Answer. They reasserted that the signature was a forgery and
included three current examples of his signature.
       The Government subsequently moved to strike the jury demand in
Carter’s Answer, arguing that it sought only equitable restitution from Carter
and not damages at law. The district court struck the jury demand the next
day before receiving a response from Carter.




      1 Although Carter’s counsel denied at the motion-to-dismiss hearing that Carter lived
at the address on the promissory note, Carter’s affidavits denied only that he lived at the
address in the certificate of indebtedness (which is different from the one on the note).
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                                     No. 16-20796
      The Government then moved for summary judgment, requesting the
amount set forth in the certificate of indebtedness, $550 in attorney fees, and
$75 in processing fees. In response, Carter contended that the Government’s
evidence was false and that he did not take out the loan. Carter submitted the
same two affidavits he submitted with his Answer but did not provide any
other evidence of forgery. Following a hearing, the district court entered
summary judgment for the Government in the amount of $9,176.28. After the
district court denied his motion for reconsideration, Carter timely appealed.
                                            II
      “We review a grant of summary judgment de novo, applying the same
standard as the district court.” 2 A court must enter summary judgment if
“there is no genuine dispute as to any material fact and the movant is entitled
to judgment as a matter of law.” 3
                                            A
      To recover on the promissory note, the Government was required to
demonstrate (1) Carter signed it, (2) the Government presently owns or holds
it, and (3) it is in default. 4 “If the validity of a signature is denied in the
pleadings,” as Carter did in his Answer, “the burden of establishing validity is
on the person claiming validity”—here, the Government. 5 But under Texas
law, when a party produces a signed instrument, “the signature is presumed
to be authentic and authorized.” 6 And when “a fact is ‘presumed,’ the trier of
fact must find the existence of the fact unless and until evidence is introduced
that supports a finding of its nonexistence.” 7



      2 Vela v. City of Houston, 276 F.3d 659, 666 (5th Cir. 2001).
      3 FED. R. CIV. P. 56(a).
      4 United States v. Lawrence, 276 F.3d 193, 197 (5th Cir. 2001).
      5 TEX. BUS. & COM. CODE § 3.308(a).
      6 Id.
      7 Id. § 1.206.

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       As a result of the signature-validity presumption, the Government
established the prima facie elements of its case by producing the promissory
note bearing Carter’s signature. The burden then shifted to Carter to produce
evidence sufficient for a jury to find that the signature is a forgery. 8
       Carter has not met his burden. His only summary-judgment evidence
consisted of two affidavits, in which Carter himself was the affiant, and a letter
from his attorney. The affidavits simply recycled Carter’s denial that the
signature was his. “Such self-serving allegations”—vague and conclusory
allegations resubmitted without more—“are not the type of significant
probative evidence required to defeat summary judgment.” 9 More problematic,
Carter’s reuse of these bare allegations is circular. Under Texas’s burden-
shifting framework, Carter’s original allegation that the signature is a forgery
shifted the burden to the Government. But Texas’s presumption of signature
validity sent the burden of introducing competent evidence of invalidity back
to Carter. To the extent Carter’s summary-judgment evidence consisted of
restating the denials in the pleadings, Carter merely reinitiated the argument
cycle while “fail[ing] to make a sufficient showing on an essential element of
[his] case with respect to which [he] has the burden of proof.” 10
       In one affidavit, Carter provided three current examples of his signature
to demonstrate that the signature on the note is a forgery. But in light of
Texas’s presumption that a signature is authentic, merely producing more
signatures and claiming them to be different was insufficient to create a


       8  See id.; see also 10A CHARLES ALAN WRIGHT & ARTHUR R. MILLER, Federal Practice
and Procedure § 2727.2 (4th ed. 2016) (“If the summary-judgment movant makes out a prima
facie case . . . summary judgment will be granted unless the opposing party offers some
competent evidence that could be presented at trial showing that there is a genuine dispute
as to a material fact.”); id. (“[T]he nonmoving party simply is required to show specific facts,
as opposed to general allegations, that present a genuine issue worthy of trial.”).
        9 Lawrence, 276 F.3d at 197 (internal quotation marks omitted).
        10 Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

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                                       No. 16-20796
genuine issue of material fact. 11 Perhaps the situation would be different had
Carter submitted, for example, an affidavit from a writing analyst, but he
instead provided only a statement from his attorney that the signatures in the
affidavit were “clearly different in several ways.” The situation may also have
been different had Carter submitted signatures produced before this litigation
commenced. But Carter’s attorney conceded at the summary-judgment hearing
that he had failed to respond to multiple discovery requests from the
Government for driver’s licenses, pay stubs, and other objective examples of
Carter’s signature.
       Moreover, Carter produced no evidence disputing that either the social
security number or the address on the note was his. 12 And although the
Government requested Carter’s residential address history, Carter again
failed to respond.
       In sum, faced with the presumptively valid note and a sworn certificate
of indebtedness, Carter failed to produce competent evidence to support his
contention that the signature was a forgery. Self-serving affidavits may
serve as competent summary-judgment evidence, 13 and to the extent the
Government argues otherwise, we reject this contention. But in light of


       11  See Orthopedic & Sports Injury Clinic v. Wang Labs., Inc., 922 F.2d 220, 225 (5th
Cir. 1991) (noting that “unsupported affidavits setting forth ultimate or conclusory facts and
conclusions of law are insufficient to either support or defeat a motion for summary
judgment” (cleaned up)).
        12 Counsel claimed at the summary-judgment hearing that Carter never lived at the

address on the note. But a statement from counsel at a hearing is not evidence in the
summary-judgment record. Counsel also stated, however, that one of Carter’s family
members “may” have lived at the address on the note.
        13 See, e.g., Heinsohn v. Carabin & Shaw, P.C., 832 F.3d 224, 245 (5th Cir. 2016)

(holding that “the magistrate judge and district court erred in rejecting [one party’s
summary-judgment] statements as self-serving”); C.R. Pittman Const. Co. v. Nat’l Fire Ins.
Co. of Hartford, 453 F. App’x 439, 443 (5th Cir. 2011) (noting that “[a] party’s own testimony
is often ‘self-serving,’ but we do not exclude it as incompetent for that reason alone” (citing
Rushing v. Kan. City S. Ry., 185 F.3d 496, 513 (5th Cir. 1999), superseded on other grounds
by FED. R. EVID. 103(a))).
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                                        No. 16-20796
Texas’s applicable presumptions and burden-shifting framework, Carter’s
say-so and a handful of untimely signatures are not enough. 14
                                               B
       Carter also challenges the damages award. He first contends that the
Government provided no evidence of the interest rate on the note. Carter did
not present this argument to the district court and cannot raise it for the first
time on appeal. 15
       Second, Carter challenges the award of $550 in attorney fees. We review
his challenge to the availability of pre-filing attorney fees de novo and to the
amount for abuse of discretion. 16 Carter’s argument seems to be that because
the amount awarded represents fees incurred before the case was filed, he
cannot owe those fees. We reject Carter’s argument that the district court could
not award pre-filing attorney fees and find no error in its decision to do so. 17
Moreover, opposing counsel submitted an affidavit detailing the pre- and post-
filing work required to prosecute the case as a foundation for the district court’s
award amount.
       Third, Carter contends that the district court should not have awarded
$75 in process-server fees because the Government never requested a waiver
of service. Federal Rule of Civil Procedure 4(d), however, provides only that a




       14  See, e.g., Lawrence, 276 F.3d at 197 (noting that where “the government produced
sufficient evidence to satisfy its summary judgment burden, the burden shifted to [the
nonmovant] to ‘set forth specific facts showing that there is a genuine issue for trial,’ not just
to ‘rest upon the mere allegations or denials of the adverse party’s pleading.’” (citation
omitted)).
        15 See, e.g., SCA Promotions, Inc. v. Yahoo!, Inc., 868 F.3d 378, 384 (5th Cir. 2017).
        16 See Finger Furniture Co. v. Commonwealth Ins. Co., 404 F.3d 312, 315 (5th Cir.

2005).
        17 See id. (“If a party is not entitled to attorney’s fees until a complaint is filed, a

plaintiff would never be entitled to fees incurred in researching and drafting a complaint.”).
The Government told the district court that it would not request fees for the summary-
judgment hearing.
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                                        No. 16-20796
plaintiff “may” request a waiver; it does not mandate that a plaintiff “shall”
seek one. 18 We thus find no error.
                                               C
       Carter also rejects the Government’s contention that it was pursuing
only an equitable remedy, a contention the Government made in its motion to
strike Carter’s jury demand.
       First, Carter claims that the Government abandoned its breach-of-
contract claim when it argued that it was seeking only equitable restitution.
According to Carter, this “failure to prosecute” resulted in the automatic
dismissal of the case under Federal Rule of Civil Procedure 41(b). As a result,
Carter says, the district court lacked subject-matter jurisdiction. 19 But
“Federal Rule 41(b) only provides for such dismissal on a defendant’s motion.” 20
Carter filed no such motion. And although a trial court may dismiss a case sua
sponte for failure to prosecute, 21 the court simply did not do so here. Nothing
in Rule 41 calls that decision into question. Thus, the case was not dismissed—
automatically, by motion, or otherwise—and the district court properly
exercised jurisdiction when it ruled on the motion for summary judgment.
       Second, Carter argues that, alternatively, the Government should be
estopped from pursuing its breach-of-contract claim because it effectively




       18  See FED. R. CIV. P. 4(d)(1); see also 4A WRIGHT & MILLER, supra, § 1092.1
(“[P]laintiffs are under no obligation to utilize this process.”).
        19 While Carter did not raise this particular argument in the district court, a dismissal

renders a case moot and terminates the court’s jurisdiction. See U.S.D.I.D. Corp. v.
Windstream Commc’ns, Inc., 775 F.3d 128, 134 (2d Cir. 2014) (involving voluntary dismissal
under Rule 41(a)). Thus, we must consider this challenge to the court’s jurisdiction, even if it
has been raised for the first time on appeal. See United States v. Cotton, 535 U.S. 625, 630
(2002).
        20 Nat. Gas Pipeline Co. of Am. v. Energy Gathering, Inc., 2 F.3d 1397, 1407 (5th Cir.

1993) (citing Link v. Wabash R.R. Co., 370 U.S. 626, 629–32 (1962)).
        21 See Martinez v. Johnson, 104 F.3d 769, 772 (5th Cir. 1997).

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                                       No. 16-20796
abandoned the claim in its motion to strike. Carter never raised this argument
in the district court, so we will not consider it on appeal. 22
                                              D
       Next, Carter argues that the district court erred by striking his jury
demand. Because the district court properly granted summary judgment, any
such error was harmless. 23
                                              E
       Finally, Carter asks that the case be reassigned to a different district
judge on remand. As an initial matter, because we affirm the district court’s
final judgment, this request is moot. To the extent further proceedings are
necessary, Carter’s request lacks merit. The district court’s comments were
perhaps pointed at times, but they provide no basis for “an objective observer
to question [the judge’s] impartiality” and thus provide no basis for
reassignment. 24
                                             III
       For these reasons, we AFFIRM the judgment of the district court.




       22 See, e.g., SCA Promotions, 868 F.3d at 384.
       23 See Laskaris v. Thornburgh, 733 F.2d 260, 264 (3d Cir. 1984); cf. JPMorgan Chase
Bank, N.A. v. Classic Home Fin., Inc., 548 F. App’x 205, 210 n.4 (5th Cir. 2013) (“Because we
affirm the district court’s grant of summary judgment . . . , we conclude that the challenge to
the district court’s striking of the jury demand is moot.”).
       24 See Test Masters Educ. Servs., Inc. v. Robin Singh Educ. Servs., Inc., 799 F.3d 437,

455 (5th Cir. 2015) (brackets in original) (quoting In re DaimlerChrysler Corp., 294 F.3d 697,
701 (5th Cir. 2002)), cert. denied, 137 S. Ct. 499 (2016).
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