     Case: 13-40646      Document: 00512592283         Page: 1    Date Filed: 04/10/2014




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

                                                                                FILED
                                    No. 13-40646                              April 10, 2014
                                  Summary Calendar                           Lyle W. Cayce
                                                                                  Clerk

FREDDIE L. WALKER, SR., doing business as Walker’s Empire Professional
Janitorial Service,

                                                 Plaintiff-Appellant

v.

WEBCO INDUSTRIES, INCORPORATED; SALLY ALLEN; PATTI JORDAN;
MIKE HOWARD; LAURA BREWER; CHRISTY RAY,

                                                 Defendants-Appellees


                   Appeal from the United States District Court
                        for the Eastern District of Texas
                             USDC No. 1:11-CV-521


Before DAVIS, SOUTHWICK and HIGGINSON, Circuit Judges.
PER CURIAM: *
       Freddie L. Walker, Sr., doing business as Walker’s Empire Professional
Janitorial Service (WEPJS), proceeding pro se and in forma pauperis, filed a
complaint asserting several claims against Webco Industries, Inc. (Webco) and
several employees of Webco.            The complaint was the result of Webco
terminating a contract with WEPJS for janitorial services due to allegedly


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 13-40646

fraudulent invoices.   After granting Walker the opportunity to file a first
amended complaint, the district court granted the defendants’ motion to
dismiss for failure to state a claim upon which relief could be granted. Walker
timely appeals the district court’s dismissal.
      A district court’s grant of a motion to dismiss for failure to state a claim
under Federal Rule of Civil Procedure 12(b)(6) is subject to de novo review. In
re Katrina Canal Breaches Litigation, 495 F.3d 191, 205 (5th Cir. 2007). A
plaintiff fails to state a claim when the complaint does not contain “‘enough
facts to state a claim to relief that is plausible on its face.’” Id. (quoting Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).” A claim has facial
plausibility when the pleaded factual content allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The district court is not required
to accept as true a legal conclusion presented as a factual allegation. Twombly,
550 U.S. at 555. The court may not go outside the complaint, but it may
consider documents attached to the complaint. Kennedy v. Chase Manhattan
Bank USA, NA, 369 F.3d 833, 839 (5th Cir. 2004).
      Walker reasserts that Webco is liable for breach of contract because it
failed to perform a number of duties under the janitorial service contract.
Accepting as true the facts asserted in Walker’s first amended complaint, it is
clear that he sought to bring claims on behalf of his company, WEPJS, “a Texas
corporation.” Further, it is clear from the record that Webco contracted with
the business, not with Walker for janitorial services. Any damage suffered by
Walker was derivative of the injury done to his incorporated janitorial
business. Walker is not a lawyer and therefore cannot appear in federal court
representing WEPJS for breach of contract. See Southwest Express Co., Inc. v.
Interstate Commerce Comm’n, 670 F.2d 53, 55-56 (1982); Rowland v. California



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                                 No. 13-40646

Men’s Colony, 506 U.S. 194, 202 & n.5 (1993). Accordingly, the district court
did not err in dismissing Walker’s breach of contract claim for failure to state
a claim upon which relief could be granted. See Southwest Express, 670 F.2d
at 55-56.
      Walker reasserts his claim that Webco racially discriminated against
him and WEPJS in violation of Title VII. He further asserts that, in violation
of Title VII, Webco retaliated against him when he filed a complaint with the
Equal Employment Opportunity Commission alleging discrimination on the
part of Webco. Title VII prohibits an employer from “discharging[ing] an
individual, or otherwise discriminat[ing] against any individual . . . because of
such individual’s race.” 42 U.S.C. § 2000e-2(a)(1). Title VII also prohibits
retaliation by employers against employees who have filed a charge of
discrimination. § 2000e-3(a).
      The district court noted that Walker was not terminated, but rather
WEPJS. The district court once again concluded that Walker could not pursue
claims on WEPJS’s behalf without counsel, since WEPJS was a corporation
that could not proceed pro se in federal court.      The district court further
determined that, even if Walker himself could pursue the instant Title VII
claims, he was not entitled to relief since neither WEPJS or Walker was an
employee of Webco. Because Walker does not challenge the district court’s
reasons for dismissing his Title VII claims, he has abandoned the claims on
appeal. See Brinkmann v. Dallas County Deputy Sheriff Abner, 813 F.2d 744,
748 (5th Cir. 1987).
      Walker contends that the district court erred in granting the defendant’s
motion to dismiss as to his defamation claim, as well as his statute of frauds
claim. However, Walker never asserted a defamation claim or a statute of
frauds claim before the district court in his first amended complaint.



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                                  No. 13-40646

Accordingly, this court will not consider the claims. See Stewart Glass &
Mirror, Inc. v. U.S. Auto Glass Discount Cntrs., Inc., 200 F.3d 307, 316-17 (5th
Cir. 2000).
      Before this court, Walker does not raise the following claims that he
raised before the district court in his first amended complaint: (1) bad faith;
(2) intentional misrepresentation; (3) negligent misrepresentation; (4)
intentional interference with business relations; (5) negligence; (6) infliction of
emotional distress; and (7) a violation of 42 U.S.C. § 1983. Also, Walker does
not challenge the district court’s order striking his pleading that was construed
as an attempt to file a second amended complaint. By failing to raise the above
claims in his brief before this court, Walker has abandoned the claims on
appeal. See Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993).
      Accordingly, the judgment of the district court is AFFIRMED.




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