     Case: 09-50415     Document: 00511075106          Page: 1    Date Filed: 04/08/2010




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

                                                  FILED
                                                                             April 8, 2010

                                       No. 09-50415                         Lyle W. Cayce
                                                                                 Clerk

PHILIP L. STOTTER, Ph.D

                                                   Plaintiff-Appellant
v.

UNIVERSITY OF TEXAS AT SAN ANTONIO; GUY BAILEY; DAVID
JOHNSON

                                                   Defendants-Appellees




                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 5:01-CV-434


Before DAVIS, WIENER, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
        Plaintiff-Appellant Philip Stotter, formerly a chemistry professor at the
University of Texas - San Antonio (UTSA), is before this court for the second
time on his 42 U.S.C. §1983 case implicating due process claims arising from the
alleged deprivation of property without notice and a reasonable opportunity to
be heard. This time he is appealing the district court’s grant of Defendant-
Appellee Guy Bailey’s Rule 50(b) Motion for a Judgment as a Matter of Law


        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
   Case: 09-50415    Document: 00511075106      Page: 2   Date Filed: 04/08/2010

                                     No. 09-50415

(JMOL) following a jury verdict favorable to Stotter at the conclusion of the trial
that followed our remand of this aspect of Stotter’s original appeal.
      We affirm the judgment of the district court based on its determination
that Stotter had no protectable property interest in various notebooks that are
alleged to have been lost or destroyed following the cleaning of Stotter’s office
and laboratory at Bailey’s behest.
                        I. FACTS AND PROCEEDING
      Stotter, a tenured chemistry professor at UTSA, was employed there from
1974 to 2002 as a research professor. UTSA provided Stotter with laboratory
space, equipment, and other resources. On several occasions beginning in 1998,
Stotter was informed that his laboratory and office space posed safety hazards
and were otherwise not kept in good order. As early as October 31, 2000, he was
informed in writing that he must address these concerns or his lab would be
closed. Then, on the same day in January 2001, Stotter received two letters, one
advising that his lab would be closed and that UTSA would have it cleaned out,
and the other informing him that such action was being taken on instructions
from Bailey in his capacity as Provost. That action then took place on February
26, 2001.
      Stotter filed suit in state court in May of that year. After Stotter’s suit
was removed to the district court, summary judgment was granted in favor of all
defendants, which judgment was affirmed on appeal except as to Stotter’s due
process claim against Bailey, which was remanded for further disposition. A
jury trial on that claim followed.
      At the close of Stotter’s case and again at the close of the evidence, Bailey
made motions for a JMOL pursuant to Rule 50(a), asserting that Stotter did not
have a protectable interest in any of the property lost in the cleanup. Those
motions were denied, and the jury found that Bailey had violated Stotter’s right
to notice, that Stotter had a property interest in various items in his lab, and

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                                  No. 09-50415

that he was entitled to $175,000 for the loss of his research notebooks, but was
entitled to nothing for the alleged loss of the chemicals, glassware, and the like.
Following the jury’s verdict, Bailey renewed his JMOL motion, this time under
Rule 50(b), which motion was granted by the district court, and judgment was
rendered in favor of Bailey.
                                 II. ANALYSIS
      As a threshold matter, Stotter argues that the district court erred in
considering Bailey’s Rule 50(b) motion because it so differed in content from his
earlier Rule 50(a) motions as to constitute waiver. After hearing oral argument
by able counsel for both parties, considering the applicable law as presented in
the parties’ briefs, and reviewing the record on appeal, we are satisfied that
Bailey’s Rule 50(b) motion was sufficiently reflective of his Rule 50(a) motions
as to avoid waiver. The district court was, therefore, entitled to consider and
rule on Bailey’s quest for a JMOL under his Rule 50(b) motion.
      Likewise, our de novo review of the district court’s ruling on Bailey’s
JMOL motion satisfies us that it was providently granted. Stotter failed to
present sufficient evidence to establish that he had a protectable property
interest in the subject notebooks. Accordingly, no reasonable jury could have
found the presence of such an interest when, as here, the law does not allow it.
Stotter’s argument that his notebooks fall under the “scholarly or educational
materials” exception in UTSA’s IP policy is not borne out by the evidence. That
exception would apply only if the materials at issue were published or either
copyrighted or “copyrightable,” yet Stotter’s evidence was not sufficient to
demonstrate that the notebooks in question contained material other than
research data. Accordingly, the district court’s JMOL reversing the jury award
to Stotter is
AFFIRMED.



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