Case: 17-20671      Document: 00514631703         Page: 1    Date Filed: 09/06/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                      United States Court of Appeals
                                                                               Fifth Circuit

                                      No. 17-20671                           FILED
                                                                     September 6, 2018
                                                                        Lyle W. Cayce
E.V. DRAKE,                                                                  Clerk

              Plaintiff - Appellant

v.

COSTUME ARMOUR, INCORPORATED; CHRISTO VAC; DRAKE LOEB,
P.L.L.C.,

              Defendant - Appellees




                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:16-CV-3607


Before SMITH, CLEMENT, and COSTA, Circuit Judges.
PER CURIAM: *
       Plaintiff E.V. Drake ordered costumes and props, including a Roman
crown of thorns, from Defendants Costume Armour, Inc. and Christo Vac
(hereafter the “Costume Defendants”). He sent them a deposit of $1,600 as a
50% down payment. Defendants contend this down payment was just for the
construction of a prototype of the crown of thorns; Drake believes it was also



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                      No. 17-20671
for the cost of molds for Roman costumes. When he received the crown of
thorns prototype, Drake complained that it was “poorly crafted.” The Costume
Defendants did not refund his deposit. Drake has been declared a vexatious
litigant in Texas state courts, which means an administrative judge must
authorize any state court lawsuit he files. TEX. CIV. PRAC. & REM. CODE §
11.101. So Drake had to try and make a federal case out of this dispute.
       Drake’s complaint asserts a number of federal and state claims. The
magistrate judge, in a report adopted by the district court, recommended that
the federal claims be dismissed under Rule 12(b)(6) for failure to state a claim.
The magistrate judge explained that the wire and mail fraud claims failed
because there is no private right of action that allows an individual to bring
those claims as stand alone civil claims (they can be used as predicate acts
supporting civil RICO claims). The claim under the Magnuson-Moss Warranty
Act failed because a federal cause of action exists under that statute only when
at least $50,000 is in dispute. 15 U.S.C. § 2310(d). And the discrimination
claims under 42 U.S.C. § 1981 relied solely on speculative and conclusory
allegations. 1
       The magistrate judge next considered whether the state claims that
remained supported diversity jurisdiction.            The parties are from different
states, but the court found that Drake did not meet his burden of establishing
the $75,000 amount-in-controversy requirement. The court noted that the
dispute centers on a $1,600 deposit and Drake’s “wish list” of additional
damages is “largely frivolous.”




       1The magistrate judge’s report rejected law firm defendant Drake Loeb P.L.L.C.’s
motion to dismiss on personal jurisdiction grounds. The claims against Drake Loeb were
nonetheless dismissed for the reasons discussed above that also applied to the claims against
the Costume Defendants.
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                                          No. 17-20671
       We agree with the district court that the federal claims fail and that the
state claims do not involve $75,000.                  As an example of Drake’s baseless
attempts to establish the amount-in-controversy requirement, he seeks to
include attorneys’ fees in that calculation even though he is proceeding pro se.
       There was one step missing, however, in the trial court’s analysis.
Because the federal claims were dismissed under Rule 12(b)(6) for failure to
state a claim rather than under Rule 12(b)(1) for lack of federal question
jurisdiction, supplemental jurisdiction existed over the state claims even if
there was not independent diversity jurisdiction. Arbaugh v. Y&H Corp., 

, 514 (2006) (“[W]hen a court grants a motion to dismiss for failure to
state a federal claim, the court generally retains discretion to exercise
supplemental jurisdiction, pursuant to 28 U.S.C. § 1367, over pendent state-
law claims.”). 2 So the court should have decided whether it would exercise its
discretion to continue with the state law claims under its supplemental
jurisdiction. 28 U.S.C. § 1367(c).
       Ordinarily we would have the district court make that determination in
the first instance. But here there are no good reasons for retaining the state
law claims in this federal suit. The federal claims were dismissed early in the
suit before discovery. That alone supports dismissal of the state claims as
“[o]ur general rule is to dismiss state claims when the federal claims to which
they are pendent are dismissed.” Parker & Parsley Petroleum Co. v. Dresser
Indus., 

, 585 (5th Cir. 1992); see also Carnegie-Mellon Univ. v.




       2 A claim that purports to rely on federal law “may be dismissed for want of subject-
matter jurisdiction if it is not colorable, i.e., if it is ‘immaterial and made solely for the purpose
of obtaining jurisdiction’ or is ‘wholly insubstantial and frivolous.’” 

n.10 (quoting
Bell v. Hood, 

, 682–83 (1946)). That may be true of some or all of Drake’s federal
claims in this case, but the district court rejected them for failure to state a claim under Rule
12(b)(6) rather than for lack of subject matter jurisdiction. That results in the supplemental
jurisdiction question discussed above.
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Cohill, 

, 351 (1988) (explaining that when federal claims are
dismissed at an “early stage” of the litigation, the district court has a “powerful
reason to choose not to continue to exercise jurisdiction”); Brookshire Bros.
Holding, Inc. v. Dayco Products, Inc., 

(5th Cir. 2009) (“The
general rule is that a court should decline to exercise [supplemental]
jurisdiction over remaining state-law claims when all federal-law claims are
eliminated before trial. . . .”).
      Yet there is more: the federal claims were weak if not wholly groundless;
Drake’s attempt to turn this small-dollar dispute into a federal case seeks to
evade the state court’s finding that he is a vexatious litigant; and the
outlandish attacks he has made on the district court in this case (see below)
reveal this suit to be more of the same. See Enochs v. Lampasas Cty., 

, 159 (5th Cir. 2011) (citing the statutory factors in 28 U.S.C. § 1367(c) as
well as “common law factors of judicial economy, convenience, fairness, and
comity” that are considered in deciding whether to exercise jurisdiction over
supplemental claims).       As there was no sound basis for the exercise of
supplemental jurisdiction over the remaining claims, we affirm the dismissal
of the suit. See 

(holding that it was not appropriate for federal
court to retain jurisdiction over supplemental claims when “at the time the
federal claims were deleted hardly any federal judicial resources, let alone a
significant amount of resources, had been devoted to the district court’s
consideration of the Texas state law claims (or to any claims)”).
      After the dismissal, Drake sought reconsideration in the district court
arguing that the magistrate judge’s involvement in the suit was unlawful and
that both the magistrate judge and district judge should be recused. As for the
former allegation, Drake’s consent was not necessary for the magistrate judge
to make recommendations about the case that were subject to full review by
the district court. The recusal motion relied on baseless and absurd attacks on
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the court. The district court did not err in rejecting these frivolous arguments.
Nor did it abuse its discretion in denying Drake’s delayed amendment request.
See Marucci Sports, L.L.C. v. Nat’l Collegiate Athletic Ass’n, 

, 378
(5th Cir. 2014) (“The district court is entrusted with the discretion to grant or
deny a motion to amend and may consider a variety of factors including undue
delay, bad faith or dilatory motive . . ., repeated failure to cure deficiencies by
amendments previously allowed, undue prejudice to the opposing party and
futility of the amendment” (cleaned up)).
      AFFIRMED.




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