                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
                                                              April 14, 2003

                 UNITED STATES COURT OF APPEALS          Charles R. Fulbruge III
                      FOR THE FIFTH CIRCUIT                      Clerk

                     _______________________

                     Nos. 02-10421, 02-10956
                     _______________________


                       TUONG B. VAN, M.D.,
                                               Plaintiff-Appellant,

                             versus

           ALLAN ANDERSON, M.D., JACK SCHWADE, M.D.,
                  MEDICAL CITY DALLAS HOSPITAL,

                                               Defendants-Appellees,


                       TUONG B. VAN, M.D.,

                              Plaintiff-Appellant-Cross-Appellee,

                             versus

            ALLAN ANDERSON, M.D., JACK SCHWADE, M.D.,
                   MEDICAL CITY DALLAS HOSPITAL

                           Defendants-Appellees-Cross-Appellants.
_________________________________________________________________

          Appeals from the United States District Court
       for the Northern District of Texas, Dallas Division
                          3:99-CV-311-P
_________________________________________________________________


Before REAVLEY, JOLLY, and JONES, Circuit Judges.




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PER CURIAM:*

           Appellant Tuong B. Van appeals the district court’s

grant of summary judgment in favor of appellees Allan Anderson,

M.D., Jack Schwade, M.D., and Medical City Dallas Hospital

(collectively “Appellees”).   Van also appeals the district

court’s award of costs to Appellees pursuant to 28 U.S.C. § 1920

(2000).   Appellees cross-appeal the district court’s denial of

their motion for attorneys’ fees.     Finding no error in the

district court’s judgment, except as to one element of costs, we

affirm the judgment as amended.

           On February 12, 1999, Van filed suit against Medical

City, Anderson, and Schwade under 42 U.S.C. § 1981 (2000).      He

also brought claims for breach of contract against the hospital

and defamation and tortious interference claims against Anderson

and Schwade.   Pertinent to section 1981, Van alleges that

Appellees interfered with his ability to make and enforce certain

contracts based upon his race and national origin as well as the

race and national origin of his patients.     Specifically, Van

alleges that appellees interfered with his contracts with Medical

City for hospital privileges, his contracts with his current and

prospective patients and their insurance carriers, his license


     *
      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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with the Texas Board of Medical Examiners, and a contract between

himself and Medical City consisting of the medical staff’s

bylaws.   Van’s breach of contract and tortious interference

claims arise from these same alleged contracts.    Van’s defamation

claims against Anderson and Schwade stem from alleged comments

made to third parties that Van provided inappropriate care to one

or more of his patients.

            We agree with the district court that Van’s section

1981 claims, breach of contract claims, and tortious interference

claims all fail as a matter of law.    The district court correctly

found that neither the medical staff bylaws nor his business

relationship with his patients could constitute a contractual

relationship upon which liability could be predicated.

Furthermore, Van’s claims for loss of his hospital privileges

cannot survive summary judgment because Van’s privileges with the

hospital were not involuntarily terminated; instead, his term

expired and he failed to reapply for privileges with the

hospital.    And on appeal, Van no longer suggests that appellees

interfered with his medical license.    Finally, we agree with the

district court that Van’s defamation claims against Anderson and

Schwade must fail because they are both immune from civil

liability under the Health Care Quality Improvement Act, 42

U.S.C. § 11111(a) (2000) (“HCQIA”).



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          The district court also correctly declined to adopt

Van’s constitutional challenges to HCQIA and the Texas Peer

Review Statute.   Van argues that the HCQIA is unconstitutional

because it is outside of Congress’s authority under the Commerce

Clause and violates Van’s rights to equal protection and due

process under the Fifth Amendment.    The Fourth Circuit has

addressed this very argument and held that the HCQIA was well

within Congress’s Commerce Clause power.    Freilich v. Upper

Chesapeake Health, Inc., 313 F.3d 205, 213 (4th Cir. 2002).     The

court in Freilich also held that the statute did not violate the

Fifth Amendment’s equal protection and due process guarantees.

Id. at 211-12.    Since the district court’s judgment with respect

to the defamation claims can be affirmed without addressing the

constitutionality of the Texas Peer Review Statute, we need not

address the issue, nor was it error for the district court to

decline to do so.

          Van next challenges the district court’s refusal to

reopen discovery for the purpose of obtaining and authenticating

a letter from the Texas Board of Medical Examiners dated December

7, 2001, which stated that the Board had examined Van’s medical

practice at the hospital and found no evidence that Van had

engaged in practices violating the Texas Medical Practice Act.

Van believes this evidence is relevant to his claims.   While this

letter may be relevant to establishing discrimination or that the

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peer review procedure was a sham and a pretext, the district

court did not abuse its discretion in failing to reopen

discovery.   This evidence does not save Van’s claims from the

failure to establish the necessary contractual relationships or

to overcome the immunity provided by the HCQIA.

          Finally, Van appeals the district court’s award of

Appellees’ costs pursuant to 28 U.S.C. § 1920 (2000) related to

copying documents, document retrieval, record searches, obtaining

certified documents, obtaining deposition transcripts, and

videotapes of depositions.    We affirm the district court’s award

of costs in all respects except as to the award of $937.50 for

videotapes of depositions.    This court has previously held that

section 1920 does not authorize recovery of costs for the

videotapes of depositions.    Migis v. Pearl Vision, Inc., 135 F.3d

1041, 1049 (5th Cir. 1998).   Thus, we amend the order of the

district court to allow the recovery of $66,313.05 of taxable

costs.

          With respect to Appellees’ cross-appeal regarding the

denial of attorneys’ fees, we hold that the district court did

not abuse its discretion in denying an award of fees.   Appellees

moved for attorneys’ fees under 42 U.S.C. § 1988 (2000), 42

U.S.C. § 11113 (2000), and Tex. Occ. Code Ann. § 160.008 (West

2000).   Appellees requested the district court to award $568,857

in attorneys’ fees.   Appellees concede that to recover attorneys’

                                  5
fees under any of these three statutes, they must show that Van’s

claims were unreasonable, frivolous, or brought in bad faith.

The district court noted that Van’s claims were lacking in merit

and that the factors this court enunciated in United States v.

Mississippi, 921 F.2d 604, 609 (5th Cir. 1991) for determining

whether a case is frivolous weighed in favor of awarding fees.

The district court held, nevertheless, that fee-shifting was not

appropriate because Van “raised serious issues of discrimination”

at the Hospital, even though he lost his case on other grounds.

Having reviewed the record, we hold that the district court did

not abuse its discretion so concluding.

           Appellees also seek to recover fees pursuant to Tex.

Civ. Prac. & Rem. Code § 37.009 (West 1997), which provides that

courts equitably may shift fees in declaratory judgment actions.

This argument is without merit.   A party may not rely on Section

37.009 to authorize attorneys' fees in a diversity case because

this Texas statute articulates procedural rather than substantive

law.   Utica Lloyd's v. Mitchell, 138 F.3d 208, 210 (5th Cir.

1998).

           Having found no error as to the grant of summary

judgment, the denial of the motion to reopen evidence, the denial

of attorneys’ fees, or in the award of taxable costs, except as

to that portion of the award related to deposition videotapes, we

affirm as amended the judgment of the district court.

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AFFIRMED AS AMENDED.




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