IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

________________________________________

No. 98-11324 Summary Calendar ________________________________________

PAULA M. CRANK, Individually and as Next Friend of KATRINA ANN CRANK and BRITTANY RENEE CRANK, Minor Children,

Plaintiff,

JAY S. FICHTNER,

Appellant,

versus

KATHERINE W. CRANK, KAREN ARMSTRONG, and LARRY ARMSTRONG,

Defendants.

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Appeal from the United States District Court for the Northern District of Texas (3:96-CV-1844-D) ______________________________________________

September 3, 1999

Before POLITZ, WIENER, and STEWART, Circuit Judges:

Per Curiam*

This is an appeal from the district court’s grant of sanctions

under Federal Rule of Civil Procedure 11 (“Rule 11") against

counsel for Plaintiff-Appellant Paula M. Crank (“Plaintiff”). The

district court ordered Plaintiff’s attorney Jay S. Fichtner to

complete thirty (30) hours of continuing legal education and to

* Pursuant to 5th Cir. R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.

1 submit letters of apology to the Defendants-Appellees

(“Defendants”).

This is the second time these parties have been before us in

connection with a child custody dispute that was first decided

adversely to Plaintiff in state court. The federal district court

dismissed some of Plaintiff’s claims on a 12(b)(6) motion1 and

disposed of the remainder on a motion for summary judgment,2 which

we affirmed.3 Following that appeal, the district court granted

Defendants’ motion for Rule 11 sanctions on all but one claim.4

Plaintiff appeals the order; Defendants have withdrawn as parties

to the appeal.5

Defendants’ motion for sanctions under Rule 11 asserted that

each of Plaintiff’s theories of recovery was either (1) not

supported by existing law or nonfrivolous argument for extension of

the law,6 or (2) lacking evidentiary support and unlikely to have

evidentiary support even after reasonable investigation.7 District

1

(N.D. Tex. Jan. 14, 1997). 2

(N.D. Tex. Aug. 21, 1997). 3

, No. 97-11212 (5th Cir. June 4, 1998) (per curiam). 4 The district court denied sanctions on the claims for assault and battery. 5 As Defendants have withdrawn as parties to the appeal, we do not review the correctness of that portion of the decision adverse to them. Neither do we address the district court’s order of sanctions on the libel and slander claims as Plaintiff does not dispute that order on appeal. 6 Fed. R. Civ. P. 11(b)(2). 7 Fed. R. Civ. P. 11(b)(3).

2 court decisions regarding Rule 11 sanctions are reviewed for abuse

of discretion.8 As a preliminary matter, we find that the district

court did not abuse its discretion in declining to conduct an

evidentiary hearing on the Rule 11 motion.9

First, Plaintiff’s claim for malicious prosecution is

sanctionable because the state court custody case was still pending

at the time Plaintiff filed her federal court complaint. To state

a claim for malicious prosecution, a party must have prevailed in

the underlying lawsuit;10 thus, there was no evidentiary basis for

that cause of action at the time it was filed. Furthermore,

Plaintiff does not argue —— frivolously or otherwise —— for

modification or reversal of that law.

Second, Plaintiff’s persistence in attempting to identify

action “under color of” state law in support of her section 1983

claim is sanctionable. Even if we were to accept, as a legal

theory, based on but a single state court ruling on absolute

judicial immunity under state law,11 that a guardian ad litem is a

state actor for purposes of section 1983, we find no factual

evidence whatsoever of any conspiracy between such person (who was

not even named as a defendant in the original complaint) and the

named defendants, to deprive Plaintiff of constitutional rights.

8 Cooter & Gell v. Hartmarx Corp.,

(1990). 9 Merriman v. Security Ins. Co. of Hartford,

(5th Cir. 1996). 10 James v. Brown,

(Tex. 1982). 11 Delacourt v. Silverman,

(Tex. App. 1996) (cited in Appellant’s Brief).

3 Finally, the district court’s order of sanctions on the claim

for intentional infliction of emotional distress is not erroneous.

We decline to consider Plaintiff’s theory of emotional distress

resulting from “abduction or enticement,” presented for the first

time on appeal, in support of her argument that the allegations in

the complaint were warranted by existing law or nonfrivolous

argument for extension of the law.

Based on our review of the Memorandum Opinion and Order of the

district court in light of the facts revealed by the record and the

legal arguments advanced in Plaintiff’s appellate brief, we

conclude that the district court did not abuse its discretion in

ordering sanctions against Mr. Fitchner. For essentially the same

reasons set forth in the well-reasoned opinion of that court, its

order of sanctions is, in all respects,

AFFIRMED

4