Hoai v. Vo

• Decision Date: 19 November 1991
• Docket Number: No. 90-7170,90-7170
• Parties: , 19 Fed.R.Serv.3d 1306 Thanh Vong HOAI, et al., Appellants, v. Thanh Van VO, et al., Appellees.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 308

935 F.2d 308

290 U.S.App.D.C. 142, 19 Fed.R.Serv.3d 1306

Thanh Vong HOAI, et al., Appellants, v. Thanh Van VO, et al., Appellees.

No. 90-7170.

United States Court of Appeals, District of Columbia Circuit.

Argued May 13, 1991.

Decided June 11, 1991.

Rehearing En Banc Denied

Aug. 6, 1991.

Rehearing Denied Nov. 19, 1991.

Appeal from the United States District Court for the District of Columbia.

Laurence A. Elgin, with whom John D. Hemenway was on the brief, Washington, D.C., for appellants.

J. Gordon Forester, Jr., with whom Stephen H. Abraham was on the brief, Washington, D.C., for appellees Sun Refining and Marketing Co., J. Gordon Forester, Jr., Jeffrey Wagner and Joseph D. Zulli.

Brian P. Maschler, of the bar of the Supreme Court of California, pro hac vice, by special leave of the court, with whom Francis X. Markey was on the brief, Washington, D.C., for appellees Jones, Day, Reaves & Pogue, Millard F. Ottman, Jr., and David C. Roseman.

Robert J. Pleshaw, Washington, D.C. entered an appearance for appellee Thanh Van Vo.

Before EDWARDS, BUCKLEY and RANDOLPH, Circuit Judges.

Opinion for the Court filed by Circuit Judge HARRY T. EDWARDS.

HARRY T. EDWARDS, Circuit Judge:

This case arises from the claim of the appellants, Thanh Vong Hoai, David Hemenway and John Hemenway, that they were deprived of their civil rights in violation of 42 U.S.C. Sec. 1983 (1988) and 42 U.S.C. Sec. 1985 (1988) during the course of prior litigation involving Mr. Hoai's right to operate a gas station franchise. Named as defendants in the appellants' suit are Thanh Van Vo, competing claimant to the franchise, Sun Refining and Marketing Company ("Sunoco"), owner of the franchise, and attorneys representing them, including the law firm of Jones, Day, Reavis and Pogue ("Jones, Day") (collectively, the "appellees"). The District Court dismissed the appellants' case for failure to state a claim upon which relief can be granted. See Hoai v. Vo, Civ. Action No. 89-2397 (D.D.C. Oct. 2, 1990), reprinted in Joint Appendix ("J.A.") 778.

We agree with the District Court that the appellants' civil rights claim is fatally flawed. Specifically, the appellants' complaint alleges no facts to support a finding that the appellees, all private parties, acted "under color of" law for purposes of section 1983. Nor do the appellants allege the existence of a conspiracy motivated by a class-based, invidiously discriminatory animus, as required by section 1985(3). Accordingly, we affirm the District Court dismissal of the action.

I. BACKGROUND

This case arises from a long-standing, and thoroughly litigated, dispute between Hoai and Vo over the right to a Sunoco gas station franchise located in Washington, D.C. The merits of that dispute are not now before the court. Rather, the appellants' civil rights claim focuses on the conduct of the appellees during previous litigation involving the franchise. The course of the relevant legal proceedings is therefore charted briefly below.

In August 1986, Vo initiated legal action in connection with the franchise by filing suit against Hoai and Sunoco in the Superior Court of the District of Columbia ("D.C." or "District"). Also named as defendants were John Hemenway, who had been acting as Hoai's attorney, and his son, David Hemenway, who had been acting as Hoai's agent. Vo was represented before the D.C. Superior Court by attorneys from Jones, Day.

In essence, Vo alleged that Hoai first transferred the Sunoco franchise to him and then, with the aid of the Hemenways, wrongfully evicted him from the gas station. See Amended Verified Complaint, reprinted in J.A. 138. In response, Hoai claimed that he was the rightful owner of the franchise, and that he had signed his interest over to Vo only under duress, including threats of violence. See Answer, Counter-Claim and Third Party Claims, reprinted in J.A. 164. After holding an evidentiary hearing, the Superior Court granted Vo's motion for a temporary restraining order ("TRO") reinstating Vo in the gas station, removing Hoai from the station, and directing Sunoco to continue supplying the station with gasoline. See Vo v. Hoai, Civ. Action No. 7075-86 (D.C.Sup.Ct. Aug. 29, 1986), reprinted in J.A. 82.

On September 8, 1986, the Superior Court accepted a voluntary consent agreement between Vo and Sunoco, pursuant to which the terms of the TRO as to Vo and Sunoco were extended for up to an additional seven months, or until there was a prior resolution of the dispute between Vo and Hoai. See Vo v. Hoai, Civ. Action No. 7075-86 (D.C.Sup.Ct. Sept. 8, 1986), reprinted in J.A. 85. The consent order was negotiated by Vo's attorneys and by attorneys representing Sunoco. Hoai and his counsel were not notified of the consent agreement until after it was accepted by the court.

Hoai appealed the Superior Court's acceptance of the consent agreement; however, while this appeal was still pending, the consent agreement expired on March 31, 1987, and the D.C. Court of Appeals subsequently ruled the appeal moot. The case was then remanded to the Superior Court for a trial on the merits of Vo's claim against Hoai. See Hoai v. Vo, No. 86-1323 (D.C. Mar. 4, 1988), reprinted in J.A. 162. The case before the Superior Court, which was stayed on the motion of Hoai while he pursued several related suits, is still pending. ¹

In August 1989, Hoai and the Hemenways filed the civil rights action underlying this appeal. At the heart of the appellants' claim are alleged abuses of the D.C. Superior Court process by Vo, Sunoco and their respective attorneys. In essence, the appellants allege that they were deprived of their civil rights in violation of sections 1983 and 1985 when the appellees lied to the court in order to obtain the initial TRO and then impermissibly excluded Hoai and his attorney from proceedings resulting in an extension of that TRO. See Complaint, reprinted in J.A. 1.

On October 2, 1990, the District Court dismissed the action, holding that the appellants had failed to allege facts sufficient to support either a finding that the appellees acted under color of law for purposes of section 1983, or a finding that they acted with a class-based, invidiously discriminatory animus as required by section 1985(3). See Hoai, mem. op. at 3-7, reprinted in J.A. 780-84. In response to outstanding motions for sanctions filed by some of the appellees, the District Court also ordered the appellants to show cause why sanctions should not be imposed. See id. at 7-8, reprinted in J.A. 784-85.

On November 1, 1990, the appellants filed with the District Court both notice of appeal of the October 2 order and, pursuant to Rule 60(b) of the Federal Rules of Civil Procedure, a motion for reconsideration and correction of the order. See Rule 60(b) Motion of Plaintiffs, reprinted in J.A. 981. On December 28, 1990, two months after the notice of appeal had been filed, the appellants moved to amend their complaint, in part by adding several new causes of action. See Plaintiffs' Motion to Amend, Hoai, Civ. Action No. 89-2397 (filed Dec. 28, 1990). The District Court heard argument on the appellants' motions, as well as on the question of sanctions, on February 1, 1991. No rulings had issued as of May 13, 1991, the date of oral argument in this appeal.

II. ANALYSIS

A. Appellate Review

We begin by addressing the question, raised for the first time at oral argument, whether the Rule 60(b) motion for reconsideration pending before the District Court bars appellate review of the order dismissing the appellants' action. We find that it does not. It is true that some post-trial motions, including a timely motion to amend or alter a judgment under Rule 59(e), ² render ineffective any notice of appeal filed before their disposition. See FED.R.APP.P. 4(a)(4); Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 103 S.Ct. 400, 74 L.Ed.2d 225 (1982). A Rule 60(b) motion for relief from judgment is not, however, among the post-trial motions that operate to preclude appellate review during their pendency. See FED.R.APP.P. 4(a)(4). ³

Therefore, the pendency of the appellants' Rule 60(b) motion in no way affects our jurisdiction over this case. Rather, when both a Rule 60(b) motion and an appeal are pending simultaneously, appellate review may continue uninterrupted. At the same time, the District Court may consider the 60(b) motion and, if the District Court indicates that it will grant relief, the appellant may move the appellate court for a remand in order that relief may be granted. See Reuber v. United States, 750 F.2d 1039, 1051 n. 16 (D.C.Cir.1984) (as amended Jan. 23, 1985); Greater Boston Television Corp. v. FCC, 463 F.2d 268, 280 n. 22 (D.C.Cir.1971), cert. denied, 406 U.S. 950, 92 S.Ct. 2042, 32 L.Ed.2d 338 (1972). Here, the District Court has not indicated any willingness to grant the appellants' motion, and remand is thus unwarranted.

Accordingly, we reach the merits of the case before us. Our review is, of course, limited to the District Court dismissal order of October 2, 1990, the judgment from which appeal was taken on November 1, 1990. See Notice of Appeal, Hoai, Civ. Action No. 89-2397 (filed Nov. 1, 1990). The appellants' motion to amend, filed after issuance of the judgment and notice of appeal, is not before this court.

B. Section 1983

Count I of the appellants' complaint alleges a violation of section 1983, which holds liable

[e]very person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, [another person] to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws....

42 U.S.C. Sec. 1983. To state a claim under section 1983, a plaintiff must allege both (1) that he was deprived of a right secured by the Constitution or laws of the United States, and (2) that the defendant acted "under color of" the law of a state,...