United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT February 20, 2004

Charles R. Fulbruge III Clerk No. 02-30971 Summary Calendar

BRENT ROBINS; KIM ROBINS,

Plaintiffs-Appellants,

versus

BRIAN JARREAU; ET AL.,

Defendants,

BRIAN JARREAU; KIM JARREAU; FOREMOST SIGNATURE INSURANCE COMPANY,

Defendants-Appellees.

* * * * * * * * * * * * * * * *

Consolidated with

No. 03-30013

BRENT ROBINS; KIM ROBINS,

Plaintiffs-Counter Defendants-Appellants Cross-Appellees,

versus

BRIAN JARREAU; ET AL.,

Defendants,

BRIAN JARREAU; KIM JARREAU;

Defendants-Counter Claimants-Appellees-Cross-Appellants, FOREMOST SIGNATURE INSURANCE COMPANY, Defendant-Cross-Appellant.

Appeal from the United States District Court for the Middle District of Louisiana USDC No. 02-CV-159-D

Before JONES, BENAVIDES and CLEMENT, Circuit Judges.

PER CURIAM:*

In February 2002, Brent and Kim Robins (collectively “the

Robins”) tried to make a federal case out of their ongoing feud

with their neighbors, Brian and Kim Jarreau (“the Jarreaus”), by

filing a civil rights action against them. The Robins amended the

complaint to add as a defendant the Jarreaus’ personal liability

insurer, Foremost Signature. The district court dismissed the

complaint because there was no allegation of state action, the

claims were prescribed, and there was no cause of action based on

Kim Robins’ conviction because there was no allegation that those

criminal proceedings had been terminated in her favor. The

district court found in favor of the Jarreaus on their counterclaim

against the Robins and awarded the Jarreaus $2,500 in attorneys’

fees.

The Robins contend that the district court erred in

denying their second motion to amend the complaint to add as a

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.

2 defendant a state employee whose letter to the defendants allegedly

“precipitated” criminal charges against Kim Robins; that the

district court erred in dismissing the complaint pursuant to Heck

v. Humphrey,

(1994), on the basis that there was no

state action; and that the district court erred in determining that

the defendants were a “prevailing party” and in awarding attorneys’

fees to them. These arguments are without legal or factual basis

and are frivolous. The Robins’ appeal is frivolous and is

DISMISSED. 5TH CIR. R. 42.2.

On cross-appeal, the Jarreaus and Foremost Signature

argue that the district court erred in awarding less attorneys’

fees than they had incurred based on the Robins’ unsupported

assertions regarding their financial condition. The Jarreaus and

Foremost Signature are correct. See Alizadeh v. Safeway Stores,

Inc.,

, 239 n.7 (5th Cir. 1990). We VACATE the award

of only $2,500 in attorneys’ fees and REMAND to the district court

for further proceedings. See Forbush v J.C. Penny Co.,

(5th Cir. 1996).

The Jarreaus and Foremost Signature move in this court

for award of appellate costs and attorneys’ fee sanctions pursuant

to FEDERAL RULE OF APPELLATE PROCEDURE 38. Because the Robins’ appeal is

frivolous, we GRANT the appellees’ motion and AWARD attorneys’ fees

and double costs to them. FED. R. APP. P. 38.

3 We ORDER the appellants’ attorney, Clarence T. Nalls, to

show cause, within ten days of this order, why this court should

not impose sanctions against him pursuant to

. If

Nalls does not comply with this order, we DIRECT the clerk to

assess against Nalls personally the excess costs, expenses, and

attorneys’ fees reasonably incurred by the appellees.

The Jarreaus and Foremost Signature are DIRECTED to file

a bill of costs together with an affidavit setting forth expenses

and attorneys’ fees reasonably incurred by them in connection with

this appeal. See FED. R. APP. P. 39; 5TH CIR. R. 39 and 47.8.1.

Appeal Nos. 02-30971 and 03-30013 are DISMISSED AS

FRIVOLOUS; award of $2,500 in attorneys’ fees is VACATED and

REMANDED; Appellees’ Motion for Damages and Attorneys’ Fees is

GRANTED; Appellants’ attorney ORDERED to show cause why SANCTIONS

should not be imposed against him pursuant to

.

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