Fogarty, et al v. USA Truck Inc, et al

*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this opinion should not be published and is not precedent except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.
United States Court of Appeals
Fifth Circuit
F I L E D
July 11, 2007
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 06-11151
Summary Calendar
MICHAEL L. FOGARTY; DOROTHY E. FOGARTY; APRIL M. C. FOGARTY;
Plaintiffs-Appellants,
versus
USA TRUCK, INC.; ERIC MCCONNELL, INSURANCE RISK MANAGER;
MARC T. LEVIN, ESQ.; DAVID ALBERT COLECCHIA, ESQ.;
Defendants-Appellees.
_________________________________________________________________
Appeal from the United States District Court
for the Northern District of Texas
Case No. 3:05-CV-1783
_________________________________________________________________
Before JONES, Chief Judge, and JOLLY and OWEN, Circuit Judges.
PER CURIAM:*
This case arises out of a March 1999 highway collision in
which Appellant Michael F. Fogarty rear-ended a truck while making
a delivery in Adams County, Pennsylvania, during the course of his
employment as a truck driver for Appellee USA Truck, Inc. USA
Truck terminated Fogarty shortly thereafter. In a subsequent
Pennsylvania state-court action initiated by the driver of a third
vehicle involved in the accident, Fogarty and USA Truck were

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represented by Pennsylvania attorney Marc T. Levin. Levin withdrew
from the litigation because he perceived a potential conflict of
interest in the simultaneous representation of Fogarty and USA
Truck. Fogarty then retained another Pennsylvania attorney, David
Colecchia, only to fire him later. The state-court suit was
eventually settled.
After moving to Texas, in September 2005 Fogarty filed a
pro se action on behalf of his wife, daughter, and himself in the
district court for the Northern District of Texas against Levin,
Colecchia, USA Truck, and Eric McConnell, a USA Truck Insurance
Risk Manager. Though it is difficult precisely to ascertain the
nature of the allegations Fogarty raised in his original complaint,
they ostensibly include: (1) legal malpractice and breach of
contract against attorney Colecchia; (2) legal malpractice and
“insurance bad faith” against attorney Levin; and (3) wrongful
termination, negligence per se, and “insurance bad faith” against
USA Truck and McConnell. After an independent survey of the
pleadings and record, the district court adhered to the magistrate
judge’s recommendations and dismissed all claims against Colecchia
and McConnell for lack of personal jurisdiction, and all claims
against Levin and USA Truck for failure to state a claim.
Standard of Review
Because Fogarty did not timely object to any of the
rulings below, the litigants contend that the plain-error standard

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governs our review. We do not agree. Even though a party’s
failure timely to file written objections to a magistrate judge’s
factual findings and legal conclusions typically gives rise to
plain-error review on appeal, when, as here, the district court
undertakes an independent review of the record, we review de novo.
See Guillory v. PPG Indus., Inc., 434 F.3d 303, 308 (5th Cir.
2005). This exception to the usual plain-error standard is
especially relevant in the context of pro se cases. See Douglass
v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1430 (5th Cir. 1996)
(en banc). Our review here is thus de novo. Guillory, 434 F.3d at
308. Irrespective of the standard we use, however, there was no
error below.
Claims Against Colecchia
Fogarty does not contest the magistrate judge’s findings
that personal jurisdiction over Colecchia was lacking and that
venue in the Northern District of Texas was improper. Instead,
citing Goldlawr, Inc. v. Heiman, 369 U.S. 463, 82 S. Ct. 913
(1962), Fogarty contends that the district court erred in failing
to dismiss without prejudice or transfer the case under 28 U.S.C.
§ 1404(a) or § 1406(a). This argument is meritless. Goldlawr
stands only for the proposition that a district court may transfer
a case even when it lacks personal jurisdiction over the
defendants. 369 U.S. at 466-67, 82 S. Ct. at 916. Nothing in
Goldlawr requires a district court to transfer a case, nor do any

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of the circumstances cited by the Goldlawr Court militate against
dismissal here. See id. at 466, 82 S. Ct. at 915-16. The record
reveals no reason to second-guess the district court’s decision to
dismiss all claims against Colecchia or its refusal to transfer the
action.
Claims Against Levin
Fogarty likewise argues that Goldlawr applies to the
district court’s dismissal of his claims against Levin. Those
claims, however, were not dismissed for lack of personal
jurisdiction, but instead for failure to state a claim. See FED.
R. CIV. P. 12(b)(6). Goldlawr does not apply to dismissals made
under Rule 12(b)(6). Moreover, Levin did not challenge personal
jurisdiction or venue. He relied only on Rule 12(b)(6). Fogarty
cannot simply bootstrap his jurisdiction and venue arguments
against Levin when only a Rule 12(b)(6) dismissal is at issue.
Finally, Fogarty makes only a perfunctory challenge to the
magistrate judge’s finding that he failed to plead facts sufficient
to withstand summary judgment on the malpractice and insurance bad
faith claims. No facts are pleaded to support those claims. The
district court did not err with respect to Levin.
Claims Against USA Truck & McConnell
Because Fogarty has not briefed his negligence per se and
wrongful-termination claims, they are waived. Man Roland, Inc. v.
Kreitz Motor Express, Inc., 438 F.3d 476, 481 n.7 (5th Cir. 2006);

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FED. R. APP. P. 28(a)(9)(A). Next, his argument that the district
court’s failure to transfer the USA Truck and McConnell claims was
error fails for the reasons given above in relation to the Levin
claims: Goldlawr does not apply to dismissals made under Rule
12(b)(6). As to the bad-faith insurance claim Fogarty raises, he
has pled no facts to indicate that USA Truck was obliged to provide
him with legal representation in the Pennsylvania state-court
action. Assuming arguendo the existence of such a duty, USA Truck
did initially provide Fogarty with attorney Levin’s services. Our
review of the record reveals no facts to substantiate Fogarty’s
claim that USA Truck violated a duty of good-faith due to him, if
one existed at all.
Conclusion
For the foregoing reasons, the district court’s dismissal
of all claims against Appellees is
AFFIRMED.

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