Wright v. Compgeeks.Com , 357 F. App'x 979 ( 2009 )

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
December 23, 2009
FOR THE TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
JASON WRIGHT,
Plaintiff,
v. No. 09-4020
(D.C. No. 2:08-CV-00409-DB)
COMPGEEKS.COM, a California (D. Utah)
corporation, doing business as
Computer Geeks,
Defendant-Appellee,
______________________________
RUSSELL A. CLINE,
Attorney-Appellant.
ORDER AND JUDGMENT *
Before KELLY, PORFILIO, and O’BRIEN, Circuit Judges.
Plaintiff Jason Wright and appellant Russell A. Cline, his attorney, filed
this appeal to challenge the district court’s November 6, 2009, order dismissing
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
Mr. Wright’s suit and the court’s February 13, 2009, order imposing attorneys’
fees jointly and severally against Mr. Wright and Mr. Cline under
Fed. R. Civ. P. 11. Appellee Compgeeks.com (“Computer Geeks”) filed a motion
in this court for sanctions against Mr. Wright and Mr. Cline, arguing that the
appeal is frivolous on the merits and should be dismissed for that reason. Upon
consideration, we have determined that we lack jurisdiction over this appeal, and
it is therefore dismissed. We deny the motion for sanctions.
Although Mr. Wright was initially a party to this appeal, he settled with
appellee and was dismissed from this appeal on June 10, 2009. At that point, we
lost jurisdiction to consider the district court’s November 6 merits decision
because Mr. Cline is not directly affected by it and lacks standing to appeal it on
his own behalf. See Weeks v. Indep. Sch. Dist., 230 F.3d 1201, 1213 (10th Cir.
2000). Mr. Cline has standing to appeal the district court’s February 13 order
imposing attorneys’ fees against him under Rule 11 because he is directly affected
by that order, see Weeks, 230 F.3d at 1213, but the district court has not yet
determined the amount of attorneys’ fees to be imposed. As a result, Mr. Cline’s
notice of appeal was fatally premature as to the attorneys’ fees issue, and we lack
jurisdiction to review it. It is settled law in this circuit that “[a]n award of
attorneys’ fees is not final and appealable within the meaning of 28 U.S.C. § 1291until it is reduced to a sum certain.” Am. Soda LLP v. U.S. Filter Wastewater
Group, Inc., 428 F.3d 921, 924 (10th Cir. 2005); see also N. Am. Specialty Ins.
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Co. v. Britt Paulk Ins. Agency, Inc., 579 F.3d 1106, 1108 n.2 (10th Cir. 2009).
This is not a situation where the premature notice of appeal would ripen, because
the district court has more left to do than just enter judgment. The Supreme Court
has held that Fed. R. App. P. “‘4(a)(2) permits a notice of appeal from a nonfinal
decision to operate as a notice of appeal from the final judgment only when a
district court announces a decision that would be appealable if immediately
followed by the entry of judgment.’” Judd v. Univ. of N.M., 204 F.3d 1041, 1043
(10th Cir. 2000) (quoting FirsTier Mortgage Co. v. Investors Mortgage Ins. Co.,
498 U.S. 269, 276 (1991)).
As for Computer Geeks’s motion asking us to impose sanctions against
Mr. Wright and Mr. Cline because this appeal is frivolous on the merits, “in the
absence of . . . jurisdiction we do not decide whether [the appellant’s] arguments
are frivolous or well taken.” Okon v. Comm’r, 26 F.3d 1025, 1027 (10th Cir.
1994) (quotation omitted). Failure to promptly raise jurisdictional issues causes
inconvenience for both the court and counsel. We lament counsel’s failure to be
sufficiently attentive to fundamentals.
The only basis for sanctioning Mr. Cline would be to punish him for
pursuing the appeal in the absence of jurisdiction, but that failure was not raised
as a ground for sanctions in Computer Geeks’s motion for fees and costs. As a
result, if we were to impose sanctions, it would have to be sua sponte, and that
cannot be done without providing Mr. Cline notice and an opportunity to be heard
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on the ground for sanctions. See White v. Gen. Motors Corp., Inc., 908 F.2d 675,
686 (10th Cir. 1990) (stating that “an adequate opportunity to respond to an
attorney’s fee request requires that the persons to be sanctioned be provided
enough detail concerning the basis of the requested fees to permit an intelligent
analysis”); Braley v. Campbell, 832 F.2d 1504, 1515 (10th Cir. 1987) (holding
that “[o]n those occasions when the court intends to consider . . . sanctions sua
sponte, due process is satisfied by issuance of an order to show cause why a
sanction should not be imposed and by providing a reasonable opportunity for
filing a response”). Although we think the jurisdictional issue is obvious, the
failure of both sides to recognize it militates against granting the motion for
sanctions under this court’s precedent. See Okon, 26 F.3d at 1027.
This appeal is DISMISSED, and appellee’s motion for sanctions is denied.
Entered for the Court
John C. Porfilio
Circuit Judge
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