IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 99-10405 Summary Calendar

BOB W. MCDANIEL, doing business as Ballinger E.M.S., Inc.; MCDANIEL MEDICAL,

Plaintiffs-Appellants,

versus

RUNNELS COUNTY, TEXAS; ET AL,

Defendants,

WILLIAM POLLAN, D.O.; KAREN RIGHTMIRE, D.O.,

Defendants-Appellees.

-------------------- Appeal from the United States District Court for the Northern District of Texas USDC No. 6:98-CV-69-C -------------------- January 18, 2000

Before KING, Chief Judge, and WIENER and BARKSDALE, Circuit Judges.

PER CURIAM:*

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

sanctions under Fed. R. Civ. P. 11 against Bob W. McDaniel, d/b/a

Ballinger E.M.S., Inc. and McDaniel Medical (“McDaniel”), and his

counsel, Gerald K. Fugit (“Fugit”). Defendants-Appellees, Dr.

William Pollan (“Pollan”) and Dr. Karen Rightmire (“Rightmire”),

argue that McDaniel’s and Fugit’s appeal is frivolous and seek

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. No. 99-10405 -2-

damages and costs in connection with same under Fed. R. App. P.

38.

“[A]n appellate court should apply an abuse-of-discretion

standard in reviewing all aspects of a district court’s Rule 11

determination.” Cooter & Gell v. Hartmarx Corp.,

(1990). The review is “necessarily deferential” because the

“‘the district court is better situated than the court of appeals

to marshal the pertinent facts and apply the fact-dependant legal

standard mandated by Rule 11.’” Lulirama Ltd. v. Axcess Broad.

Serv., Inc.,

, 884 (5th Cir. 1997) (citing Cooter &

Gell,

)).

The district court concluded that McDaniel’s complaint

violated Rule 11(b)(3) because the allegations and factual

contentions against Pollan and Rightmire did not have evidentiary

support. McDaniel’s and Fugit’s appeal, which rests largely on

our opinion in Smith v. Our Lady of the Lake Hosp., Inc.,

(5th Cir. 1992), asserts that the imposition of

sanctions was improper because no discovery had taken place in

this case, and as such, the causes of action against Pollan and

Rightmire could not yet be factually developed.

The facts and context of Smith are distinguishable from this

case. In Smith, we noted that the lawyers could cite specific

facts obtained from their prefiling inquiry which supported the

claim they filed.

. The discovery process could

therefore be used to prove or disprove the facts learned in their

prefiling inquiry. In this case, Fugit cannot point to even one

fact obtained from his so-called prefiling inquiry which supports No. 99-10405 -3-

McDaniel’s claims against Pollan and Rightmire or that would

support those claims if discovery were allowed to progress. As

noted by the district court, McDaniel had numerous opportunities

to provide evidentiary support for his claims against Pollan and

Rightmire, but he failed to do so. Accordingly, the district

court did not abuse its discretion in imposing Rule 11 sanctions

against McDaniel and Fugit.

Rule 38 provides that “[i]f a court of appeals shall

determine that an appeal is frivolous, it may, . . . award just

damages and single or double costs to the appellee.” Although

McDaniel’s and Fugit’s chances of success on this appeal were

slim, indeed very slim, we do not find their appeal to be so

devoid of legal merit that it justifies damages and costs under

Rule 38. Campbell v. Teledyne Movible Offshore, Inc.,

(5th Cir. 1983); Edwards v. Cass County, Texas,

(5th Cir. 1990). Pollan’s and Rightmire’s motion for

damages and costs under Rule 38 is therefore DENIED.

AFFIRMED.