Case: 12-6634

Document: 006111639851

Filed: 04/01/2013

Page: 1

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

CASE NO: 12-6634 v.

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.

Fr

ie

nd s

of

Th e
1 of 14

Fo

NATIONAL DEMOCRATIC PARTY OF THE USA, INC., DEMOCRATIC NATIONAL COMMITTEE, TENNESSEE DEMOCRATIC PARTY, DEBBIE WASSERMAN SCHULTZ and CHIP FORRESTER

gb

ow

Plaintiffs-Appellants

.c o

LIBERTY LEGAL FOUNDATION, JOHN DUMMETT, LEONARD VOLODARSKY and CREG MARONEY,

Case: 12-6634

Document: 006111639851

Filed: 04/01/2013

Page: 2

MEMORANDUM I. Introduction

sanctions against Plaintiffs attorney. Imposition of sanctions is collateral to the

District Courts final judgment identified both of its two final orders: the final

matter regarding sanctions.

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

judgment itself, and the final order issued in the collateral matter (sanctions).

Fr

ie

nd s

Appellees instant motion now asserts that this Courts jurisdiction 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

of

of fees imposed. Specifically, the notice identified two documents: the final

Th e
2 of 14

Fo

Because the Plaintiffs challenge the imposition of sanctions, and do not

gb

order issued in the underlying case and the final order issued in the collateral

ow

merits of the underlying case. Because the imposition of sanctions is collateral, the

.c o

The instant appeal is a challenge to the District Courts imposition of

Case: 12-6634

Document: 006111639851

Filed: 04/01/2013

Page: 3

final order on sanctions. Precedent cited in Appellees motion does not support

II.

Background

On June 21, 2012, the District Court for the Western District of Tennessee

Compl., PageID 469-488. Over two months later, the district court granted the

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

Fr

ie

nd s

of sanctions, is not a final and appealable order. R.31, Or. Dismissing Compl., PageID 469-488; Citing Morgan 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

of

Th e
3 of 14

Fo

gb

motion for sanctions against the plaintiffs counsel only. The district Court did not

ow

entered an order granting defendants motion to dismiss. R.31, Or. Dismissing

.c o

Appellees unique assertion of law.

Case: 12-6634

Document: 006111639851

Filed: 04/01/2013

Page: 4

Order Granting In Part Defendants Petition for Reasonable Attorneys Fees entered

challenging the district courts grant of sanctions. Plaintiffs second notice of

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 (citing Order Granting in Part, Denying in Part Defs. Mot. for Sanctions 11-12, Aug. 24, 2012 (D.E.

Fr

ie

nd s

III.

Appeal from a Specified Final Order Includes Review of Underlying Non-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.

of

#32)PageID 489-501).

Th e
4 of 14

Fo

Notice is hereby given that all plaintiffs in the above -named case hereby appeal to the United States Court of Appeals for the 6 th 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 in this action on the 4th day of December, 2012. R.55, 2nd Ntc. of Appeal, PageID 711.

gb

ow

appeal stated:

.c o

On December 27th the Plaintiffs filed their second notice of appeal

on December 4, 2012. R.54, Jdgmt, PageID 710.

Case: 12-6634

Document: 006111639851

Filed: 04/01/2013

Page: 5

This Court has recently confirmed that it has jurisdiction to consider underlying non-final orders even when the notice of appeal specifically limited the

Appx. 488 491-92 (6th Cir. 2007); discussing Peabody Coal Co. v. Local Union

specified denial of motion to reconsider, but Court found jurisdiction to review

Bonding & Ins. Co., 310 F.2d 627, 629 (4th Cir. 1962).

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

in the notice of appeal. Caldwell, 968 F.2d at 598; see also Williams v. Guzzardi,

Fr

ie

nd s

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.)

of

review of underlying non-final orders that relate directly to a final order specified

Th e
5 of 14

Fo

It is true that this Court has stated that where a notice of appeal specifies a

gb

underlying contempt order); also quoting Lumbermens Mut. Ins. Co. v. Mass.

ow

Nos. 1734, 1508 and 1548, 484 F.2d 78, 81 (6th Cir. 1973) (notice of appeal

.c o

appeal to a related final order. Norwest Bank Wisconsin v. Malachi Corp., 245 Fed.

Case: 12-6634

Document: 006111639851

Filed: 04/01/2013

Page: 6

It is also well-established that an appeal of a final order imposing an amount

792, 795 (6th Cir. 1985).

amount of attorney fees, pursuant to an earlier non-final order that established

at page ID694 (citing Order Granting in Part, Denying in Part Defs. Mot. for

as Background the earlier order on liability for sanctions: 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 fo r their motion to dismiss for lack of standing and only pursuant to 1927. R.53, Or. Granting in

Mot. for Sanctions, PageID 489-501.

Fr

ie

nd s

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.

of

Part Attorneys Fees, at PageID 694; citing R.32, Order Granting in Part Defs.

Th e
6 of 14

Fo

Sanctions 11-12, Aug. 24, 2012 (D.E. #32)PageID 489-501). The final order cites

gb

liability regarding sanctions. R.55, 2nd Ntc. of Appeal, PageID 711; see also R.53,

ow

In the instant case the notice of appeal identifies a final order establishing an

.c o

liability regarding sanctions. Morgan v. Union Metal Manufacturing, 757 F.2d

of attorneys fees necessarily includes appeal of the underlying determination of

Case: 12-6634

Document: 006111639851

Filed: 04/01/2013

Page: 7

IV.

Specifying Review of One Collateral Issue Does Not Limit the Depth of 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-inchief or the 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

Fr

ie

nd s

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.

of

Th e
7 of 14

Fo

gb

ow

.c o

Case: 12-6634

Document: 006111639851

Filed: 04/01/2013

Page: 8

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

appeal specifying a particular order limits the breadth of appeal to the issues

be considered by the appellate court. Caldwell v. Moore, 968 F.2d 595, 598 (6th

The misapplication of law proposed by the Appellees motion is clearly

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

finding of liability on sanctions. Id.

Fr

ie

nd s

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.

of

notice of appeal automatically specifies all documents of record leading to the

Th e
8 of 14

Fo

illustrated by their attempt to apply it to the instant appeal. This Courts opinion in

gb

Cir. 1992).

ow

related to that order, it is also understood that issues related to that order must

.c o

orders. McLaurin v. Fischer, 768 F.2d 98, 101 (6th Cir. 1985). While a notice of

Case: 12-6634

Document: 006111639851

Filed: 04/01/2013

Page: 9

V.

Precedent Cited by Appellees Does Not Support their Proposed New Rule 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,

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 amount of attorneys fees necessarily includes review of the underlying determination on liability regarding sanctions. In JGR 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

Fr

ie

nd s

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. The Bonner Court also held that

of

Th e
9 of 14

Fo

gb

ow

429 (6th Cir. 2009); Caldwell v. Moore, 968 F.2d 595, 598 (6th Cir. 1992); and

.c o

Case: 12-6634

Document: 006111639851

Filed: 04/01/2013

Page: 10

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.

court after the notice of appeal was filed, nor does it involve parties that were not

new rule.

Appellate Procedure prevents the Court from reviewing underlying non-final

In fact, this Courts ruling in Caldwell is 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 Caldwell Court is stating the general rule from Federal Appellate Procedure 3(c). However, the Caldwell opinion then

reviewing underlying non-final orders, even when such orders were not specified

Fr

ie

nd s

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 Caldwell Court explicitly found the quoted Rule to

not be applicable in the manner asserted in the Appellees motion. Id.

of

immediately rejects the contention that Rule 3(c) prevents this Court from

Th e
10 of 14

Fo

orders when such orders are not specified in the notice of appeal. 968 F.2d at 598.

gb

In Caldwell this Court rejected the contention that Rule 3(c) of Federal

ow

named in the notice of appeal. Bonner does not support the Appellees proposed

.c o

By contrast, the instant appeal does not involve orders filed by the lower

Case: 12-6634

Document: 006111639851

Filed: 04/01/2013

Page: 11

Finally, Appellees citation to Pickett quotes a purely dicta footnote in which

1991). Like the other cases cited by the Appellees, Pickett does not support the

Because none of the authority cited by Appellees supports the new rule of

VI.

Appellees Were Not Prejudiced by the Notice of Appeal

For 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

Fr

ie

nd s

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); citing Foman 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
11 of 14

of

Th e

Fo

gb

law proposed in their motion, Appellees motion to dismiss must be DENIED.

ow

Appellees proposed new rule.

.c o

in his notice of appeal. United States v. Pickett, 941 F.2d 411, 415 n.3 (6th Cir.

the Court concludes that Picketts appeal should not be limited due to any defects

Case: 12-6634

Document: 006111639851

Filed: 04/01/2013

Page: 12

States v. Arizona, 346 U.S. 907 (1953); Hoiness v. United States, 335 U.S. 297,

citing Smith v. Barry, 502 U.S. 244, 248 (1992).

have not been prejudiced in any way. Appellees were on notice that the Appellants

sanctions when the Appellants filed their first notice of appeal with this Court.

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

the legal standard. Specifically, the District Court sanctioned appellants attorney

Fr

ie

nd s

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.)

of

contained material factual errors, applied the wrong legal standard, and misapplied

Th e
12 of 14

Fo

R.35, Ntc. Of Appeal, PageID 520.

gb

intended to appeal the District Courts underlying finding of liability regarding

ow

In the instant case the Appellees make no assertion of prejudice because they

.c o

Inc. v. Thomasville Furniture Industries, Inc., 550 F.3d 529, 532 (6th Cir. 2008);

300-01 (1948). [A] notice of appeal should be given a liberal construction. JGR,

Case: 12-6634

Document: 006111639851

Filed: 04/01/2013

Page: 13

Appellees were further on notice that the Appellants intended to appeal the

Because the Appellees have not been prejudiced by any technical error in the

Fischer, 768 F.2d 98, 102 (6th Cir. 1985); Foman v. Davis, 371 U.S. 178, 181

More importantly, because the instant case involves sanctions against an

Constitutional rights, this case should be decided on the merits. Therefore, the Appellees motion to dismiss must be DENIED. VII. Conclusion

For all of the reasons stated herein, the Appellees motion to dismiss must be DENIED.

nd s

Submitted on the 19th Day of Aviv, in the year of our Lord 2013 (a.k.a. April

1, 2013).

of

Fr

ie

Th e
13 of 14

Fo

attorney for advocating an issue of first impression in a case asserting

_s/Van R. Irion_________________ Van R. Irion (TNBPR#024519) Liberty Legal Foundation 9040 Executive Park Drive, Ste. 200 Attorney for Plaintiffs (423) 208-9953

gb

(1962).

ow

notice of appeal, the Appellees motion to dismiss must be DENIED. McLaurin v.

.c o

Brief with this Court. Appellants Br., Doc.006111595016.

District Courts underlying imposition of sanctions when the Appellants filed their

Case: 12-6634

Document: 006111639851

Filed: 04/01/2013

Page: 14

Fr

ie

nd s

of

Th e
14 of 14

Fo

gb

_s/Van R. Irion_________________ Van R. Irion Liberty Legal Foundation 9040 Executive Park Drive, Ste. 200 Attorney for Plaintiffs (423) 208-9953

ow

.c o

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.