UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 00-10002

RUSSELL B. CANFIELD; PEGGY A. CANFIELD,

Plaintiffs-Counter Defendants-Appellants,

VERSUS

AMERICAN EUROCOPTER CORPORATION; DAN HAGLER; CHRISTIAN GRAS; LINDA BURKETT,

Defendants-Counter Claimants-Appellees.

Appeal from the United States District Court For the Northern District of Texas, Fort Worth (4:99-CV-145-Y) August 16, 2000 Before KING, Chief Judge, REYNALDO G. GARZA and PARKER, Circuit Judges. PER CURIAM:* Plaintiffs Russell B. Canfield and Peggy A. Canfield appeal the dismissal of their claims against defendants American Eurocopter Corporation, Dan Hagler, Christian Gras and Linda Burkett and the award of attorney fees to the defendants. We

* 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 R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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 affirm. FACTS AND PROCEDURAL HISTORY On December 13, 1995, American Eurocopter terminated Peggy Canfield’s employment. On January 3, 1996, Peggy Canfield executed a release of claims against American Eurocopter and its employees related to her employment, including Title VII of the 1964 Civil Rights Act, 42 U.S.C. § 2000e (1994)(“Title VII”) and the Age Discrimination in Employment Act,

(1994)(“ADEA”) in exchange for an enhanced severance package. On August 29, 1997, Peggy Canfield filed a complaint in

federal court alleging that American Eurocopter, Hagler, Gras, and

Jerry Motsinger violated the ADEA and Title VII in decisions

related to her termination. The district court dismissed all of

her claims with prejudice and on July 28, 1998, the Fifth Circuit

affirmed the dismissal. See Canfield v. American Eurocopter Corp.,

No. 98-10072 (5th Cir. July 28, 1998)(unpublished)(“Canfield I”).

On January 19, 1999, Peggy Canfield, now joined by her husband

Russell Canfield, filed the present lawsuit in state court.

Defendants removed it to federal court. Plaintiffs filed an

amended complaint alleging violations of ADEA and the Older Workers

Benefit Protection Act,

(f)(1)(1994)(“OWBPA”), state

statutory and common law fraud, civil conspiracy, and violation of

fiduciary duty. The district court granted summary judgment for

the defendants holding, “plaintiffs’ claims in this cause are

barred by the doctrine of res judicata or, alternatively,

collateral estoppel. Additionally, plaintiffs were not ‘consumers’

2 of goods and services, as required for claims under the Texas

Deceptive Trade Practices and Consumer Protection Act. Finally,

plaintiff Russell Canfield does not have standing to bring this

suit.” The final judgment, entered May 24, 1999, dismissed all of

plaintiffs’ claims with prejudice and ordered plaintiffs to bear

all costs. Approximately one month later, the court granted the

defendants’ motion to set aside the final judgment and reopened the

case to consider defendants’ counterclaim for attorney fees and

request for sanctions. On January 19, 2000, the court entered a

final judgment awarding defendants $30,000 in attorney fees. The

district court further enjoined plaintiffs from filing any lawsuits

against defendant based on Peggy Canfield’s employment with

American Eurocopter.

DISCUSSION

Plaintiffs appeared pro se in the district court and on

appeal. Therefore, we are required to construe their pleadings

liberally. See Pena v. United States,

(5th Cir.

1997).

Plaintiffs first challenge the district court’s denial of

their motion to remand. In reviewing a district court’s denial of

a plaintiff’s motion to remand a case from federal court to state

court, we apply a de novo standard of review. See Sherrod v.

American Airlines,

(5th Cir. 1998). Under

(a), except as otherwise expressly provided by an act

3 of Congress, any civil action filed in state court may be removed

to federal court when the district court would have original

jurisdiction. See

. Because plaintiffs assert causes

of action under the ADEA and the OWBPA, the district court had

jurisdiction over their claims and did not err in denying their

motion for remand.

Plaintiffs also challenge the district court’s order denying

their motion to amend their pleadings and the order staying

discovery. We review these decisions for abuse of discretion. See

Ashe v. Corley,

(5th Cir. 1993)(denial of leave

to amend reviewed for abuse of discretion); Munoz v. Orr,

(5th Cir. 2000)(discovery rulings are reviewed for abuse

of discretion). Plaintiffs sought to amend their complaint to add

claims under

and 1988. Because plaintiffs

asserted no state action and because defendants are not state

actors, the district court concluded that the additional claims

were futile and denied the motion to amend. The district court’s

denial of plaintiffs’ motion to amend was not an abuse of

discretion. The defendants moved to stay discovery pending

resolution of their motion for summary judgment. The district

court granted the motion in part, specifically permitting discovery

to go forward “as to issues related to Plaintiffs’ execution of the

Release and the enforceability of the Release.” The district court

did not abuse its discretion in so limiting discovery.

4 Plaintiffs next challenge the district court’s grant of

summary judgment for defendants, reurging their a claim for relief

pursuant to the OWBPA as interpreted by Oubre v. Entergy

Operations, Inc.,

(1998). We review the summary

judgment order de novo, employing the same standard for summary

judgment applied by the district court. Armstrong v. City of

Dallas,

(5th Cir. 1993). We specifically rejected

this claim in Canfield I, holding “[t]he release, and [Peggy

Canfield’s] acknowledgment of same, complied with the requirements

of a release set out in the Older Workers Benefit Protection Act

(“OWBPA”),

(f)(1),” citing Oubre. Canfield I, at

*2. The district court did not err in rejecting plaintiffs’ claim

in the present suit that defendants violated Peggy Canfield’s

rights under the OWBPA.

Finally, plaintiffs challenge the district court’s grant of

defendants’ counterclaim for $30,000 in attorney fees as sanctions.

Defendants moved for summary judgment on their counterclaim,

alleging that plaintiffs violated Chapter Ten of the Texas Civil

Practice and Remedies Code by signing a pleading that 1) was

brought for an improper purpose; 2) was not warranted by existing

law or by a nonfrivolous argument for the extension, modification,

or reversal of existing law or the establishment of new law; and 3)

contained allegations and factual contentions that plaintiffs knew

had no evidentiary support even after a reasonable opportunity for

5 investigation. TEX. CIV. PRAC. & REM. CODE ANN. § 10 (Vernon Supp.

1999). Defendants further alleged that plaintiffs violated Chapter

Nine of the Texas Civil Practice and Remedies Code by signing a

pleading that was groundless and brought in bad faith, for the

purpose of harassment and for the improper purpose of imposing

additional litigation costs upon defendants. TEX. CIV. PRAC. & REM.

CODE ANN. § 9 (Vernon Supp. 1999). Defendants submitted extensive

documentary evidence to support their factual allegations.

Plaintiffs responded that the remedies requested by defendants were

unconstitutional, but did not refute defendants’ factual

allegations. We find no error in the district court’s grant of

summary judgment for defendants on the issue of attorney’s fees.

CONCLUSION

Based on the foregoing, we affirm the decisions of the

district court. Appellants’ motion to supplement the record with

Peggy Canfield’s medical records is denied.

Motion to supplement DENIED. AFFIRMED.

6