Ferraris Medical v. Azimuth Corporation , 90 F. App'x 553 ( 2004 )

Not for publication in West's Federal Reporter
Citation Limited Pursuant to 1st Cir. Loc. R. 32.3
United States Court of Appeals
For the First Circuit
No. 03-1514
GEORGE E. KERSEY,
Appellant.
_____________________
FERRARIS MEDICAL, INC.,
Plaintiff.
______________________
RUSCH, INC.,
Plaintiff, Appellee,
v.
AZIMUTH CORPORATION,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Steven J. McAuliffe, U.S. District Judge]
Before
Boudin, Chief Judge,
Torruella and Howard, Circuit Judges.
George Kersey on brief pro se.
Anne S. Mason on brief for appellee Azimuth Corporation.
January 9, 2004
Per Curiam. Plaintiff Ferraris Medical, Inc., the original
plaintiff below, brought this action against defendant Azimuth
Corporation alleging trade-dress infringement and related claims.
The district court ruled in Azimuth's favor on all counts and later
granted Azimuth's motion for attorney's fees, in an amount to be
determined following further proceedings. With Ferraris having
been replaced as plaintiff by its successor-in-interest Rusch,
Inc., the parties then agreed to the amount of attorney's fees to
be paid by Rusch to Azimuth. As part of that settlement, Rusch
agreed to forgo its right to appeal from the fees award and from
the decision on the merits. The instant appeal is instead brought
by Attorney George Kersey, who represented Ferraris below before
being suspended from the practice of law. Describing himself as a
real party in interest, Kersey seeks to appeal from the district
court's rulings on his own behalf. We find that he lacks standing
to do so and accordingly dismiss for want of jurisdiction.
The general rule is that "[c]ounsel have standing to appeal
from orders issued directly against them, but not from orders
applicable only to their clients." Uselton v. Commercial Lovelace
Motor Freight, Inc., 9 F.3d 849, 854 (10th Cir. 1993) (internal
citations omitted). For example, we have held that "an attorney
lacks separate standing to appeal from a judgment awarding or
denying fees to a party, since such concessions are granted to
parties, not their attorneys." Pontarelli v. Stone, 978 F.2d 773,
-2-
775 (1st Cir. 1992); accord, e.g., Benitez v. Collazo-Collazo, 888
F.2d 930, 933 (1st Cir. 1989). By contrast, when a monetary
sanction is assessed against an attorney personally, only the
attorney "possess[es] standing to appeal from the order," DCPB,
Inc. v. City of Lebanon, 957 F.2d 913, 919 (1st Cir. 1992); the
client ordinarily has "no pecuniary or . . . other sufficient
interest in the award to confer standing to appeal," Marshak v.
Tonetti, 813 F.2d 13, 21 (1st Cir. 1987). This framework fails to
endow Kersey with the requisite standing, since neither the order
awarding attorney's fees nor the parties' settlement made any
mention of Kersey being personally responsible for the payment
thereof.
At the same time, we have recognized the possibility that
"special circumstances" or "an idiosyncratic set of facts" might
serve to "deflect the rule's accustomed sweep." DCPB, Inc., 957
F.2d at 919 (internal quotation marks omitted). Kersey seeks to
invoke such an exception by contending, for the first time in his
reply brief, that Rusch has sought reimbursement of the fees award
from him. We find the eleventh-hour nature of this assertion to be
troubling. Kersey's explanation for omitting any discussion of
standing from his opening brief--that he was "not aware" that such
an issue would arise--strikes us as unpersuasive, given that
Azimuth sought to dismiss an earlier appeal by Kersey on that very
ground and, in jettisoning that appeal, we expressly left the
-3-
standing question unresolved. As a result of this omission and
related inaction on Kersey's part,1 Azimuth has been deprived of
the opportunity for rebuttal.
Even apart from the question of timing, however, Kersey's
reimbursement rationale proves unavailing. For purposes of
standing, "injury-in-fact must involve an invasion of a legally-
protected interest which is (a) concrete and particularized; and
(b) actual or imminent, not conjectural or hypothetical." Sea
Shore Corp. v. Sullivan, 158 F.3d 51, 55 (1st Cir. 1998) (internal
quotation marks omitted). Kersey's contention cannot pass muster
under this test. He has provided no particulars concerning the
nature of Rusch's alleged demand for reimbursement. He has not
suggested that he has made any such payment, nor has he identified
any perceived obligation (much less announced any intention) to do
so. And because he has not described the legal basis if any for
Rusch's demand, we have no way of gauging the likelihood that such
reimbursement will be forthcoming or at least actively pursued.
Under these circumstances, Kersey's allegation is too conclusory,
and the anticipated injury-in-fact too conjectural, to endow him
with standing to appeal.
1
His assertion that he "never received a copy" of Azimuth's
motion to dismiss the instant appeal for lack of standing is also
problematic. Kersey was listed in the motion's certificate of
service with the correct address. Moreover, even after supposedly
learning about the motion from Azimuth's brief, Kersey still filed
no response thereto. We note that in Kersey's earlier appeal, a
motion to dismiss filed by Azimuth likewise went unanswered.
-4-
Dismissed.
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