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UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
LIBERTY LEGAL FOUNDATION,
JOHN DUMMETT,
LEONARD VOLODARSKY and
CREG MARONEY,
Plaintiffs-Appellants
CASE NO: 12-6634
v.NATIONAL DEMOCRATIC PARTY OF THE USA, INC.,
DEMOCRATIC NATIONAL COMMITTEE,
TENNESSEE DEMOCRATIC PARTY,
DEBBIE WASSERMAN SCHULTZ and
CHIP FORRESTER
Defendants-Appellees
RESPONSE IN OPPOSITION TO APPELLEES MOTION TO DISMISS
APPEAL
Pursuant to Federal Rules of Appellate Procedure and this Courts Rules,
Plaintiffs/Appellants submit this response in opposition to Appellees motion to
dismiss.
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MEMORANDUM
I. IntroductionThe instant appeal is a challenge to the District Courts imposition of
sanctions against Plaintiffs attorney. Imposition of sanctions is collateral to the
merits of the underlying case. Because the imposition of sanctions is collateral, the
District Courts final judgment identified both of its two final orders: the final
order issued in the underlying case and the final order issued in the collateral
matter regarding sanctions.
Because the Plaintiffs challenge the imposition of sanctions, and do not
challenge the ruling on the merits of the underlying case, the instant notice of
appeal first stated that the appeal was from the final judgment, then it noted that
one of the two final orders mentioned in the District Courts judgment related to
sanctions. The notice of appeal did not state that appeal was limited to the amount
of fees imposed. Specifically, the notice identified two documents: the final
judgment itself, and the final order issued in the collateral matter (sanctions).
Appellees instant motion now asserts that this Courtsjurisdiction is limited
to the four corners of one document, specifically the District Courts final order
issued in the collateral matter. Appellees assert that this Court cannot consider any
order of the District Court that led up to the final order on sanctions, even where
the final order itself discusses and cites those previous orders as foundations for its
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final order on sanctions. Precedent cited in Appellees motion does not support
Appellees unique assertion of law.
II. BackgroundOn June 21, 2012, the District Court for the Western District of Tennessee
entered an order granting defendants motion to dismiss. R.31, Or. Dismissing
Compl., PageID 469-488. Over two months later, the district court granted the
motion for sanctions against the plaintiffs counsel only. The district Court did not
assess an amount, instead directing the defendants to file a petition detailing their
attorneys fees and giving the plaintiffs the opportunity to respond. R.43, Or.
Dismissing 1st
Notice of Appeal, PageID 642-43. On September 11, 2012
Plaintiffs filed a first notice of appeal challenging the district courts order
granting sanctions. R.35, 1st
Ntc. Of Appeal., PageID 520.
On November 5th
this Court dismissed Plaintiffs first appeal, explaining, A
district courts order determining that sanctions are appropriate, but not the amount
of sanctions, is not a final and appealable order. R.31, Or. Dismissing Compl.,
PageID 469-488; CitingMorgan v. Union Metal Mfg., 757 F.2d 792, 795-96 (6th
Cir. 1985).
On December 4th
the district court entered judgment in accordance with the
Order Granting Defendants Motion to Dismiss entered on June 21, 2012 and the
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Order Granting In Part Defendants Petition for Reasonable Attorneys Fees entered
on December 4, 2012. R.54, Jdgmt, PageID 710.
On December 27th
the Plaintiffs filed their second notice of appeal
challenging the district courts grant of sanctions. Plaintiffs second notice of
appeal stated:
Notice is hereby given that all plaintiffs in the above-named
case hereby appeal to the United States Court of Appeals for the 6th
Circuit from a judgment entered by the United States District Court
for the Western District of Tennessee (R.54) granting in part
defendants petition for reasonable attorneys fees (R.53), entered inthis action on the 4
th day of December, 2012. R.55, 2
ndNtc. of
Appeal, PageID 711.
The December 4th
final order granting Defendants petition for fees cited as
Background the courts underlying non-final order granting sanctions and setting
forth reasons for granting sanctions. R.53, at page ID694 (citingOrder Granting
in Part, Denying in Part Defs. Mot. for Sanctions 11-12, Aug. 24, 2012 (D.E.
#32)PageID 489-501).
III. Appeal from a Specified Final Order Includes Review of UnderlyingNon-Final Orders
Defendant/Appellees motion contends that this Courts jurisdiction is
limited to the four-corners of a single document because the Appellants notice of
appeal mentions one of the two final orders identified in the District Courts
judgment. Appellees assertion is contrary to well-established precedent.
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This Court has recently confirmed that it has jurisdiction to consider
underlying non-final orders even when the notice of appeal specifically limited the
appeal to a related final order.Norwest Bank Wisconsin v. Malachi Corp., 245 Fed.
Appx. 488 491-92 (6th
Cir. 2007); discussing Peabody Coal Co. v. Local Union
Nos. 1734, 1508 and 1548, 484 F.2d 78, 81 (6th
Cir. 1973) (notice of appeal
specified denial of motion to reconsider, but Court found jurisdiction to review
underlying contempt order); also quoting Lumbermens Mut. Ins. Co. v. Mass.
Bonding & Ins. Co., 310 F.2d 627, 629 (4th Cir. 1962).
It is true that this Court has stated that where a notice of appeal specifies a
particular order, only the specified issues related to that order may be raised on
appeal. Caldwell v. Moore, 968 F.2d 595, 598 (6th
Cir. 1992); citing Wilson v.
Firestone Tire & Rubber Co., 932 F.2d 510 (6th
Cir. 1991). However, the Caldwell
Court went on to explain that its statement of law from Wilson does not prevent
review of underlying non-final orders that relate directly to a final order specified
in the notice of appeal. Caldwell, 968 F.2d at 598; see also Williams v. Guzzardi,
875 F.2d 46, 49 (3rd
Cir. 1989) (We have appellate jurisdiction over orders not
specified in the notice of appeal if there is a connection between the specified and
unspecified order, the intention to appeal the unspecified order is apparent and the
opposing party is not prejudiced and has full opportunity to brief the issues.)
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It is also well-established that an appeal of a final order imposing an amount
of attorneys fees necessarily includes appeal of the underlying determination of
liability regarding sanctions. Morgan v. Union Metal Manufacturing, 757 F.2d
792, 795 (6th
Cir. 1985).
In the instant case the notice of appeal identifies a final order establishing an
amount of attorney fees, pursuant to an earlier non-final order that established
liability regarding sanctions. R.55, 2nd
Ntc. of Appeal, PageID 711;see also R.53,
at page ID694 (citing Order Granting in Part, Denying in Part Defs. Mot. for
Sanctions 11-12, Aug. 24, 2012 (D.E. #32)PageID 489-501). The final order cites
as Background the earlier order on liability forsanctions: In its August 24, 2012
order, the Court granted Defendants motion but only in part. The Court concluded
that Defendants were entitled to reasonable attorneys fees only for their motion to
dismiss for lack of standing and only pursuant to 1927. R.53, Or. Granting in
Part Attorneys Fees, at PageID 694; citing R.32, Order Granting in Part Defs.
Mot. for Sanctions, PageID 489-501.
This Court undeniably has jurisdiction to review non-final orders that
directly underlie a specified final order. Norwest Bank, 245 Fed. Appx. At 491-92
Peabody Coal, 484 F.2d at 81; Caldwell, 968 F.2d at 598; Morgan, 757 F.2d at
795;Lumbermens Mut. Ins., 310 F.2d at 629. Therefore the Appellees motion to
dismiss must be DENIED.
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IV. Specifying Review of One Collateral Issue Does Not Limit the Depthof Review Related to that Collateral Issue
Final judgments often specify that they are in accordance with more than
one previously-entered order. Often, as in the instant case, the previously-entered
orders cited in the judgment represent a final order on the case in chief, as well as a
final order regarding a collateral issue that arose during the case. In such instances
each of the final orders represent separately-appealable matters. Such judgments
represent closure of essentially two separate matters that arose from one initial
lawsuit.
When such a judgment cites two final orders, a notice of appeal specifying
one of those final orders may limit the breadth of the appeal to either the case-in-
chieforthe specified collateral issue. However, specifying one of the final orders
in such a judgment cannot limit the depth of appeal as it relates to the selected
issue.
If this were not the true, then any time such a judgment identified final
orders in a case-in-chief and a collateral matter, and the notice of appeal specified
only one of these orders, the appeal would be limited to the four corners of the
final order entered in that case. This would be true even if the final order was one
sentence that referenced a previously-filed non-final order discussing the reasons
for the final order.
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This clearly absurd result is prevented because it is well settled that an
appeal from a final judgment draws into question all prior non-final rulings and
orders.McLaurin v. Fischer, 768 F.2d 98, 101 (6th
Cir. 1985). While a notice of
appeal specifying a particular order limits the breadth of appeal to the issues
related to that order, it is also understood that issues related to that order must
be considered by the appellate court. Caldwell v. Moore, 968 F.2d 595, 598 (6th
Cir. 1992).
The misapplication of law proposed by the Appellees motion is clearly
illustrated by their attempt to apply it to the instant appeal. This Courts opinion in
Morgan clarified that that an appeal of a final order imposing an amount of
attorneys fees necessarily includes appeal of the underlying determination of
liability regarding sanctions. Morgan v. Union Metal Manufacturing, 757 F.2d
792, 795 (6th
Cir. 1985). Naming the final order on amount of fees imposed in a
notice of appeal automatically specifies all documents of record leading to the
finding of liability on sanctions.Id.
Appellees instant motion would have this Court establish a new rule
preventing review of non-final orders establishing liability, even where the lower
courts final order explicitly referenced the non-final order as the foundation for its
final order on amounts or damages. To prevent establishment of such an illogical
rule, the Appellees motion to dismiss must be DENIED.
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V. Precedent Cited by Appellees Does Not Support their Proposed NewRule
The Appellees motion cites four cases as their primary support for their new
rule. See Appellees Mot. at 7, citing JGR, Inc. v. Thomasville Furniture
Industries, Inc., 550 F.3d 529, 533 (6th
Cir. 2008);Bonner v. Perry, 564 F.3d 424,
429 (6th
Cir. 2009); Caldwell v. Moore, 968 F.2d 595, 598 (6th
Cir. 1992); and
United States v. Pickett, 941 F.2d 411, 415 n.3 (6th
Cir. 1991). However, none
these cases prevent this Court from considering underlying non-final orders related
to an appealed final order. Nor do any of these cases change the rule that appeal of
a final order imposing an amountof attorneys fees necessarily includes review of
the underlying determination on liability regarding sanctions.
InJGR this Court held that it lacked jurisdiction to vacate a specific category
of damages because both parties notices of appeal specifically challenged other
categories of damages, and because neither party briefed the issue of the omitted
category of damages. 550 F.3d at 533. JGR does not support the Appellees
proposed new rule.
In Bonner this Court found a prematurely-filed notice of appeal to be
effective. 564 F.3d at 429. However, the Court held that the notice did not grant
appellate jurisdiction over orders of the District Court that were entered after the
date of the prematurely-filed notice of appeal.Id. TheBonnerCourt also held that
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it lacked jurisdiction over the later-filed District Court orders because those orders
related to parties that were not named in the prematurely-filed notice of appeal.Id.
By contrast, the instant appeal does not involve orders filed by the lower
court after the notice of appeal was filed, nor does it involve parties that were not
named in the notice of appeal. Bonner does not support the Appellees proposed
new rule.
In Caldwell this Court rejected the contention that Rule 3(c) of Federal
Appellate Procedure prevents the Court from reviewing underlying non-final
orders when such orders are not specified in the notice of appeal. 968 F.2d at 598.
In fact, this Courts ruling in Caldwellis directly opposite to the assertion made by
Appellees in their citation to Caldwell. The citation in Appellees motion at page 7
is a quote taken out of context, where the CaldwellCourt is stating the general rule
from Federal Appellate Procedure 3(c). However, the Caldwell opinion then
immediately rejects the contention that Rule 3(c) prevents this Court from
reviewing underlying non-final orders, even when such orders were not specified
in the notice of appeal. Id. In other words, Caldwell establishes that appeal of a
final order necessarily requires review of related underlying non-final orders. Id.
Appellees quotation from Caldwell misrepresents that Courts use of the words
quoted by the Appellees. The CaldwellCourt explicitly found the quoted Rule to
notbe applicable in the manner asserted in the Appellees motion.Id.
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Finally, Appellees citation toPickettquotes a purely dicta footnote in which
the Court concludes that Picketts appeal should notbe limited due to any defects
in his notice of appeal. United States v. Pickett, 941 F.2d 411, 415 n.3 (6th
Cir.
1991). Like the other cases cited by the Appellees, Pickettdoes not support the
Appellees proposed new rule.
Because none of the authority cited by Appellees supports the new rule of
law proposed in their motion, Appellees motion to dismiss must be DENIED.
VI. Appellees Were Not Prejudiced by the Notice of AppealFor all the reasons set forth supra, the Appellants respectfully submit that the
notice of appeal in the instant case contained no error, and is sufficient to challenge
the imposition of sanctions, as set forth in Appellants Brief. However, even if the
notice of appeal was too specific, the Appellees motion to dismiss should be
denied because Appellees have not been prejudiced.
In considering the impact of technical errors upon the sufficiency of a
notice of appeal, the Supreme Court has repeatedly emphasized that absent a
showing of prejudice such errors are to be treated as harmless.McLaurin v.
Fischer, 768 F.2d 98, 102 (6th
Cir. 1985); citingFoman v. Davis, 371 U.S. 178,
181 (1962)(It is contrary to the spirit of the Federal Rules of Civil Procedure for
decisions on the merits to be avoided on the basis of mere technicalities); State
Farm Mutual Automobile insurance Co. v. Palmer, 350 U.S. 944 (1956); United
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States v. Arizona, 346 U.S. 907 (1953); Hoiness v. United States, 335 U.S. 297,
300-01 (1948). [A] notice of appeal should be given a liberal construction.JGR,
Inc. v. Thomasville Furniture Industries, Inc., 550 F.3d 529, 532 (6th
Cir. 2008);
citing Smith v. Barry, 502 U.S. 244, 248 (1992).
In the instant case the Appellees make no assertion of prejudice because they
have not been prejudiced in any way. Appellees were on notice that the Appellants
intended to appeal the District Courts underlying finding of liability regarding
sanctions when the Appellants filed their first notice of appeal with this Court.
R.35, Ntc. Of Appeal, PageID 520.
Appellees were further on notice that the Appellants intended to appeal the
District Courts underlying imposition of sanctions when the Appellants filed a
statement of issues with this Court. Stmt. of Issues, Doc.006111557789, (The
Order entered by the District Court sanctioning the plaintiff/appellants attorney
contained material factual errors, applied the wrong legal standard, and misapplied
the legal standard. Specifically, the District Court sanctioned appellants attorney
for arguing an issue of first impression, in a case raising issues of constitutional
law, despite well established precedent prohibiting such sanctions for arguing issue
of first impression. Also, the District Courts order erroneously concluded that
appellants complaint did not contain certain factual allegations when said facts
were plead.)
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Appellees were further on notice that the Appellants intended to appeal the
District Courts underlying imposition of sanctions when the Appellants filed their
Brief with this Court. Appellants Br., Doc.006111595016.
Because the Appellees have not been prejudiced by any technical error in the
notice of appeal, the Appellees motion to dismiss must be DENIED.McLaurin v.
Fischer, 768 F.2d 98, 102 (6th
Cir. 1985); Foman v. Davis, 371 U.S. 178, 181
(1962).
More importantly, because the instant case involves sanctions against an
attorney for advocating an issue of first impression in a case asserting
Constitutional rights, this case should be decided on the merits. Therefore, the
Appellees motion to dismiss must be DENIED.
VII. ConclusionFor all of the reasons stated herein, the Appellees motion to dismiss must be
DENIED.
Submitted on the 19th
Day of Aviv, in the year of our Lord 2013 (a.k.a. April
1, 2013).
_s/Van R. Irion_________________
Van R. Irion (TNBPR#024519)
Liberty Legal Foundation
9040 Executive Park Drive, Ste. 200
Attorney for Plaintiffs
(423) 208-9953
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CERTIFICATE OF SERVICE
It is hereby certified that on 19th
Day of Aviv, Year of our Lord 2013 (a.k.a.
April 1, 2013), a copy of Response in Opposition to Appellees Motion to
Dismiss Appeal was filed electronically. Parties may access this filing through the
Courts electronic filing system. A copy of this motion will also be served upon the
Defendants via mail.
_s/Van R. Irion_________________
Van R. Irion
Liberty Legal Foundation
9040 Executive Park Drive, Ste. 200
Attorney for Plaintiffs
(423) 208-9953
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