US Ex Rel. Alexander Volkhoff v. Janssen Pharmaceutica N.V. ( 2020 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES ex rel. ALEXANDER No. 18-55643
VOLKHOFF, LLC,
Plaintiff-Appellant, * D.C. No.
2:16-cv-06997-
v. RGK-RAO
JANSSEN PHARMACEUTICA N.V.;
JANSSEN PHARMACEUTICALS, INC.; OPINION
JANSSEN RESEARCH AND
DEVELOPMENT, LLC; JOHNSON &
JOHNSON; ORTHO-MCNEIL,
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California
R. Gary Klausner, District Judge, Presiding
Argued and Submitted November 14, 2019
Pasadena, California
Filed January 2, 2020
*
The caption’s reference to Alexander Volkhoff, LLC as “Plaintiff-
Appellant” reflects the appeal-initiating documents. As we explain
herein, Alexander Volkhoff, LLC is neither a plaintiff in this action nor
a proper appellant of the district court order at issue on appeal.
2 U.S. EX REL. VOLKHOFF V. JANSSEN PHARMACEUTICA
Before: FERDINAND F. FERNANDEZ, MILAN D.
SMITH, JR., and ERIC D. MILLER, Circuit Judges.
Opinion by Judge Milan D. Smith, Jr.
SUMMARY **
Qui Tam / Appellate Jurisdiction
The panel dismissed for lack of jurisdiction Alexander
Volkhoff, LLC’s appeal from the dismissal of a first
amended qui tam complaint filed by relator Jane Doe
pursuant to the False Claims Act and state false claims laws.
The panel held that this court lacks jurisdiction to hear
nonparty Volkhoff’s appeal, where Volkhoff, which
substituted itself out when Jane Doe filed the first amended
complaint, chose not to participate in the district court
proceedings; and where Volkhoff failed to show that the
equities favor hearing its appeal.
The panel rejected Volkhoff’s argument that this court
should infer from the notice of appeal that Jane Doe – a party
in the district court proceedings – intended to appeal. The
panel wrote that it is not clear from the notice, as required by
Fed. R. App. P. 3(c), that Jane Doe intended to appeal. The
panel rejected the proposition that Volkhoff, an LLC, is
interchangeable with Jane Doe, a natural person; and wrote
that the record undermines Volkhoff’s argument that
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
U.S. EX REL. VOLKHOFF V. JANSSEN PHARMACEUTICA 3
Volkhoff’s failure to name Jane Doe as an appellant was an
inadvertent omission.
COUNSEL
C. Brooks Cutter (argued) and John R. Parker, Jr., Cutter
Law P.C., Sacramento, California; Audra Ibarra, Law Office
of Audra Ibarra, Palo Alto, California; Mychal Wilson, Law
Offices of Mychal Wilson, Santa Monica, California; for
Plaintiff-Appellant.
Michael A. Schwartz (argued) and Erin Colleran, Pepper
Hamilton LLP, Philadelphia, Pennsylvania; Jeffrey M.
Goldman, Pepper Hamilton LLP, Los Angeles, California;
for Defendants-Appellees.
OPINION
M. SMITH, Circuit Judge:
Alexander Volkhoff, LLC (Volkhoff) appeals the district
court’s dismissal of the qui tam complaint filed by relator
Jane Doe pursuant to the False Claims Act (FCA), 31 U.S.C.
§§ 3729–3733, and analogous state false claims laws. 1
However, Volkhoff was not a party to Jane Doe’s complaint.
Moreover, it is not clear from Volkhoff’s notice of appeal
(Notice), as required by Federal Rule of Appellate Procedure
1
In a qui tam action brought pursuant to the FCA, a private plaintiff,
referred to as a “relator,” initiates a suit on behalf of the government for
alleged fraud. See 31 U.S.C. § 3730; United States ex rel. Eisenstein v.
City of New York, 556 U.S. 928, 932 (2009). Herein, we use “relator,”
except where necessary to indicate that the parties used (or did not use)
the term “plaintiff.”
4 U.S. EX REL. VOLKHOFF V. JANSSEN PHARMACEUTICA
3(c), that Jane Doe also sought to take an appeal. Because
Volkhoff is a nonparty that cannot appeal, and Jane Doe was
not properly named as an appellant, we dismiss this appeal
for lack of appellate jurisdiction.
FACTUAL AND PROCEDURAL BACKGROUND
On September 16, 2016, shortly after its incorporation as
a Delaware limited liability company, Volkhoff filed a qui
tam complaint (the Original Complaint) in federal district
court. The Original Complaint named Volkhoff as the
relator and alleged violations of the FCA and various states’
false claims laws by Defendants Janssen Pharmaceutica
N.V., Janssen Pharmaceuticals, Inc., Janssen Research &
Development, LLC, Johnson & Johnson, and Ortho-McNeil
(Defendants). In particular, the Original Complaint alleged
that Defendants fraudulently and unlawfully marketed their
medications. Neither the United States nor any state elected
to intervene, allowing Volkhoff to proceed with the Original
Complaint. 2
Following Defendants’ motion to dismiss the Original
Complaint, Volkhoff did not oppose the motion. Instead,
Volkhoff’s counsel filed a First Amended Complaint (FAC).
The FAC alleged the same claims as those Volkhoff alleged
in the Original Complaint. The FAC, however, removed
2
FCA suits are subject to certain procedural requirements, including
the government’s sole right to intervene, generally within 60 days of the
suit’s filing. See 31 U.S.C. § 3730; Eisenstein, 556 U.S. at 932. Like
the FCA, the state false claims laws invoked by the Original Complaint
provide their respective state governments with an opportunity to
intervene. See, e.g., Cal. Gov’t Code §§ 12650–12656; Colo. Rev. Stat.
§§ 25.5-4-303.5–25.5-4-310. Because we dismiss this appeal for lack of
appellate jurisdiction, we do not reach any other procedural issues
relating to qui tam suits that are raised on appeal.
U.S. EX REL. VOLKHOFF V. JANSSEN PHARMACEUTICA 5
Volkhoff as the relator and named Jane Doe, an anonymous
natural person, as the only relator.
The FAC did not mention Volkhoff or its relationship to
Jane Doe. In filings before the district court and our court,
Jane Doe and Volkhoff acknowledge that the replacement of
Volkhoff by Jane Doe was a tactical decision aimed at
avoiding the dismissal of the Original Complaint’s FCA
employment retaliation claim. The change responded to
Defendants’ first motion to dismiss, which argued that
Volkhoff, as a limited liability company, lacked standing to
assert an FCA retaliation claim.
Defendants moved to dismiss Jane Doe’s FAC. The
district court dismissed the FAC on April 19, 2018. In
relevant part, the district court dismissed Jane Doe’s FCA
claims for lack of subject matter jurisdiction based on the so-
called “first-to-file bar,” which prevents private third parties
from intervening in or filing similar FCA qui tam lawsuits
after an initial relator has filed one. See 31 U.S.C.
3730(b)(5); United States ex rel. Lujan v. Hughes Aircraft
Co., 243 F.3d 1181, 1187 (9th Cir. 2001). In concluding that
the first-to-file bar applied, the district court found that Jane
Doe was not a party to the Original Complaint that Volkhoff
had filed, and that she and Volkhoff were distinct legal
persons. The district court dismissed Jane Doe’s FCA
employment retaliation claim because she failed to
demonstrate a need for proceeding anonymously. Finally,
the court declined to exercise supplemental jurisdiction over
Jane Doe’s remaining state law claims and dismissed those
claims without prejudice.
Within thirty days of the dismissal, Volkhoff filed the
Notice challenging the district court’s order. Fed. R. App.
P. 4. The Notice names Volkhoff as the sole relator and
plaintiff. It does not mention Jane Doe, nor refer to any other
6 U.S. EX REL. VOLKHOFF V. JANSSEN PHARMACEUTICA
relator, plaintiff, or appellant. The “Representation
Statement” filed concurrently with the Notice, and
subsequent papers filed with this court, designate Volkhoff
variously as the only relator, plaintiff, or appellant. On
appeal, Volkhoff contends that Jane Doe is Volkhoff’s sole
owner.
JURISDICTION AND STANDARD OF REVIEW
Generally, we have jurisdiction over appeals “from all
final decisions of the district courts of the United States,”
28 U.S.C. § 1291, such as the district court’s final decision
dismissing Jane Doe’s FAC.
However, whether a nonparty has the ability to appeal is
a jurisdictional question, see Cal. Dep’t of Toxic Substances
Control v. Com. Realty Projects, Inc., 309 F.3d 1113, 1121
(9th Cir. 2002), and a failure to comply with the filing and
content requirements of the Federal Rules of Appellate
Procedure may “present a jurisdictional bar to appeal.” Le
v. Astrue, 558 F.3d 1019, 1021, 1024 (9th Cir. 2009). As a
result, our inquiry into whether this appeal is proper is
jurisdictional. “We have jurisdiction to determine our own
jurisdiction.” Havensight Capital LLC v. Nike, Inc., 891 F.3d
1167, 1171 (9th Cir. 2018) (quoting Agonafer v. Sessions,
859 F.3d 1198, 1202 (9th Cir. 2017)). We review whether
we have appellate jurisdiction de novo. Le, 558 F.3d at 1021
(citing Perez-Martin v. Ashcroft, 394 F.3d 752, 756 (9th Cir.
2005)).
ANALYSIS
Volkhoff argues both that it and Jane Doe appealed the
district court’s dismissal, and that, under either
circumstance, the appeal is proper. However, Volkhoff and
Jane Doe each face distinct jurisdictional problems that
U.S. EX REL. VOLKHOFF V. JANSSEN PHARMACEUTICA 7
foreclose this appeal. First, Volkhoff’s appeal violates the
general rule that only parties to a lawsuit may appeal it.
Second, because Volkhoff’s Notice does not name Jane Doe
or otherwise refer to her, Jane Doe’s purported appeal does
not conform to Federal Rule of Appellate Procedure 3(c).
We discuss each jurisdictional defect in turn.
I. Volkhoff’s Nonparty Appeal
Volkhoff claims that it may appeal the dismissal of Jane
Doe’s FAC even though it was not a party to her lawsuit.
“The rule that only parties to a lawsuit, or those that properly
become parties, may appeal an adverse judgment, is well
settled.” Marino v. Ortiz, 484 U.S. 301, 304 (1988) (per
curiam) (citing United States ex rel. Louisiana v. Jack,
244 U.S. 397, 402 (1917); Fed. R. App. P. 3(c)). This rule
echoes the requirements of standing. See Raley v. Hyundai
Motor Co., Ltd., 642 F.3d 1271, 1274 (10th Cir. 2011)
(“After all, it is usually only parties who are sufficiently
aggrieved by a district court’s decision that they possess
Article III and prudential standing to be able to pursue an
appeal of it.” (emphasis added) (citations omitted)). But
while the rule is sometimes described as “standing to
appeal,” it is distinct from the requirements of constitutional
standing. See United States v. Kovall, 857 F.3d 1060, 1068–
69 (9th Cir. 2017); In re Proceedings Before Fed. Grand
Jury, 643 F.2d 641, 642–643, 642 n.1 (9th Cir. 1981).
As required by this rule, we hear nonparties’ appeals
only in “exceptional circumstances.” S. Cal. Edison Co. v.
Lynch, 307 F.3d 794, 804 (9th Cir. 2002) (quoting Citibank
Int’l v. Collier-Traino, Inc., 809 F.2d 1438, 1441 (9th Cir.
1987)). “We have allowed such an appeal only when (1) the
appellant, though not a party, participated in the district court
proceedings, and (2) the equities of the case weigh in favor
of hearing the appeal.” Hilao v. Estate of Marcos, 393 F.3d
8 U.S. EX REL. VOLKHOFF V. JANSSEN PHARMACEUTICA
987, 992 (9th Cir. 2004) (citation and internal quotation
marks omitted); see also United States v. Badger, 930 F.2d
754, 756 (9th Cir. 1991).
The cases in which we have applied this test illustrate the
level and nature of participation in the district court
proceedings that is required for a nonparty to be permitted to
appeal. We have allowed nonparties to appeal when they
were significantly involved in the district court
proceedings—often because they were compelled to
participate by one of the parties or the court. Commodity
Futures Trading Comm’n v. Topworth Int’l, Ltd., 205 F.3d
1107, 1113–14 (9th Cir. 1999), as amended (9th Cir. 2000)
(nonparty “participated in the proceedings below to the full
extent possible” and “participated for several years, rather
than coming in at the end of the proceedings” (citation
omitted)); Keith v. Volpe, 118 F.3d 1386, 1389–91 (9th Cir.
1997) (after objecting, nonparty responded to order to show
cause filed by party, filed memorandum of points and
authorities at court’s request, and participated in oral
argument); S.E.C. v. Wencke, 783 F.2d 829, 834–35 (9th Cir.
1986) (nonparty appeared in the district court to contest the
same issues it was asserting on appeal, the district court
accepted nonparty’s briefs, and it allowed him to cross-
examine witnesses). This requirement is in accordance with
the Supreme Court’s admonition in Marino that “the better
practice is for . . . a nonparty to seek intervention for
purposes of appeal.” 484 U.S. at 304; see also Fed. R. Civ.
P. 24.
In contrast, we have denied nonparties the right to appeal
when they choose not to meaningfully involve themselves in
the district court proceedings. In Citibank, we dismissed a
nonparty’s appeal from a judgment when the nonparty “was
well-apprised of the proceedings” but “chose not to
U.S. EX REL. VOLKHOFF V. JANSSEN PHARMACEUTICA 9
intervene, join or make an appearance to contest jurisdiction
[in district court], even though it had actual knowledge of the
proceedings and their substance.” 809 F.2d at 1441; see also
Washoe Tribe v. Greenley, 674 F.2d 816, 818–19 (9th Cir.
1982) (concluding that nonparty state could not appeal
where, by deciding not to intervene in the district court, it
avoided waiving its immunity).
We conclude that Volkhoff’s participation in the district
court proceedings cannot serve as the basis for a right to
appeal. Its activity in the case all but ceased with the filing
of the FAC. The substitution of Jane Doe in place of
Volkhoff was a strategic choice. See Citibank, 809 F.2d
at 1441. Although Volkhoff, in what appears to be a
scrivener’s error, was listed as the only relator in the
opposition to Defendants’ motion to dismiss the FAC, the
district court’s order dismissing the FAC explicitly noted
that Volkhoff had been substituted out of the lawsuit by Jane
Doe. Moreover, the district court’s application of the first-
to-file bar to dismiss the FAC was premised upon on its
finding that Volkhoff, the initial sole relator, had been
completely replaced by Jane Doe, the second sole relator.
Like the nonparty in Citibank, Volkhoff “chose not to
participate” in the district court proceedings and instead
substituted itself out when Jane Doe filed the FAC. Id.We also find that Volkhoff fails to show that the equities
favor hearing its appeal. The equities will support a
nonparty’s appeal “when a party has haled the non-party into
the proceeding against his will, and then has attempted to
thwart the nonparty’s right to appeal by arguing that he lacks
standing or when judgment has been entered against the
nonparty.” Hilao, 393 F.3d at 992 (citations and internal
quotation marks omitted); see also Commodity Futures
Trading Comm’n, 205 F.3d at 1114 n.1 (nonparty was
10 U.S. EX REL. VOLKHOFF V. JANSSEN PHARMACEUTICA
“brought into the proceedings by the Receiver’s notice
indicating that [nonparty] would forfeit his right to recover
anything . . . unless he filed a claim, and by the later schedule
requiring him to file a written objection or waive it”); Keith,
118 F.3d at 1391; Badger, 930 F.2d at 756.
Here, Volkhoff was not haled into court by one of the
parties or the court. Instead, its participation ceased after it
made the tactical decision to substitute Jane Doe for itself.
See Washoe, 674 F.2d at 818–819 (concluding that equities
did not favor appeal of party that avoided appearing in
district court). Moreover, the district court’s judgment is
against Jane Doe, not Volkhoff. At most, Volkhoff
concludes, with little support, that its appeal is not
inequitable to Defendants, which does not meet its burden as
a nonparty appellant to demonstrate that the equities are in
its favor. See S. Cal. Edison Co., 307 F.3d at 804. 3 Thus,
we conclude that we lack jurisdiction to hear nonparty
Volkhoff’s appeal of the district court’s dismissal of Jane
Doe’s FAC.
II. Jane Doe’s Purported Appeal
Alternatively, Volkhoff argues that we should infer from
the Notice that Jane Doe, a party in the district court
proceedings, intended to appeal. Federal Rule of Appellate
3
Volkhoff briefly raises the possibility that Defendants might later
argue, in a subsequent lawsuit, that the district court’s dismissal of Jane
Doe’s FAC has a preclusive effect against Volkhoff. The cases that
Volkhoff relies on to argue that this consideration should affect our
analysis are inapposite. American Games, Inc. v. Trade Products, Inc.
concerned an intervenor. 142 F.3d 1164, 1166 (9th Cir. 1998). Wencke,
described above, involved a nonparty that was extensively involved at
the district court. 783 F.2d 829, 834–835. Furthermore, we do not see
how the possibility of future legal arguments regarding issue or claim
preclusion tips the balance of equities in Volkhoff’s favor.
U.S. EX REL. VOLKHOFF V. JANSSEN PHARMACEUTICA 11
Procedure 3(c) governs the required contents of a notice of
appeal. Smith v. Barry, 502 U.S. 244, 247–48 (1992). Rule
3(c) requires that the notice “specify the party or parties
taking the appeal by naming each one in the caption or body
of the notice, but an attorney representing more than one
party may describe those parties with such terms as ‘all
plaintiffs,’ ‘the defendants,’ ‘the plaintiffs A, B, et al.,’ or
‘all defendants except X.’” Fed. R. App. P. 3(c)(1)(A).
Rule 3(c), however, instructs us not to dismiss an appeal
“for failure to name a party whose intent to appeal is
otherwise clear from the notice [of appeal].” Fed. R. App.
P. 3(c)(4). The Advisory Committee Note to the 1993
amendment to Rule 3(c) makes clear that its current version
aims “to prevent the loss of a right to appeal through
inadvertent omission[s]” of party names on the notice of
appeal, but also that it still requires that it be “objectively
clear that a party intended to appeal.”
In interpreting Rule 3(c), the Supreme Court has
instructed that “[a]lthough courts should construe Rule 3
liberally when determining whether it has been complied
with, noncompliance is fatal to an appeal.” Le, 558 F.3d
at 1022 (quoting Smith, 502 U.S. at 248) (brackets in
original). In particular, we interpret Rule 3(c)(1)(A)’s
appellant-naming requirements strictly, following the
Supreme Court’s decision in Torres v. Oakland Scavenger
Co., 487 U.S. 312 (1988), superseded by statute as
recognized in Retail Flooring Dealers of America, Inc. v.
Beaulieu of America, LLC, 339 F.3d 1146, 1148 (9th Cir.
2003).
In Torres, the Court dismissed an appeal pursuant to
Rule 3(c) because the appellant was not named in the notice
of appeal. Torres, 487 U.S. at 314−18. Although the 1993
amendments to Rule 3(c) responded to Torres by allowing
12 U.S. EX REL. VOLKHOFF V. JANSSEN PHARMACEUTICA
appellants more flexibility in meeting its requirements,
Retail Flooring, 339 F.3d at 1148, Torres nevertheless
continues to guide our interpretation of Rule 3(c). Le,
558 F.3d at 1022 (“[T]he ‘failure to name a party in a notice
of appeal is more than excusable “informality,”’ but rather
‘it constitutes a failure of that party to appeal.’” (quoting
Torres, 487 U.S. at 314)); Argabright v. United States,
35 F.3d 472, 474 (9th Cir. 1994) (applying Torres to dismiss
appeals of appellants not named or implicitly indicated
through the use of “et al.” or “plaintiffs” in the notice of
appeal), superseded by statute on other grounds as
recognized in Hinck v. United States, 550 U.S. 501, 504
(2007); see also West v. United States, 853 F.3d 520, 522–
24 (9th Cir. 2017) (contrasting our court’s liberal
interpretation of Rule 3(c)(1)(B) with the Supreme Court’s
“narrow application of Rule 3(c)(1)(A)” in Torres (citing Le,
558 F.3d at 1022)).
We are not alone in relying on Torres to find that the
failure to name an appellant in a notice of appeal can result
in dismissal. The Tenth Circuit relied on Torres in
dismissing an appeal in a case that we find to be on point. In
Raley, the initial plaintiff, Misty Raley, asked the district
court to substitute her for the entity BancFirst as the sole
plaintiff in the case. 642 F.3d at 1273–74. The court granted
the requested substitution. Id. Defendant Hyundai prevailed
at trial, but the district court’s judgment erroneously
identified Raley as the losing plaintiff. Id. at 1274. After
Raley appealed the judgment in her name, the district court
entered an amended judgment identifying only BancFirst as
the losing party. Id. Raley filed another notice of appeal,
again in her name, to appeal the amended judgment. Id.The Tenth Circuit, quoting Torres for the proposition
that Rule 3(c) was part of a “jurisdictional threshold” to
U.S. EX REL. VOLKHOFF V. JANSSEN PHARMACEUTICA 13
appellate review, dismissed the appeal. 642 F.3d at 1274,
1276 (quoting 487 U.S. at 315). The Tenth Circuit refused
to look beyond the notice of appeal to determine whether
BancFirst intended to appeal. Id. at 1277. Because the
notice specified only Raley as the appellant and did not “use
terms that objectively and clearly encompass[ed]”
BancFirst, the court would not infer that BancFirst intended
to appeal. Id. Although the court noted the apparent
harshness of the result, it emphasized that “[t]hroughout
most of the briefing of [the] appeal it was unclear whether
BancFirst wanted to pursue an appeal,” creating an unfair
situation for Hyundai, which “ha[d] to write its briefs and
prepare its arguments without any way of being sure who
[was], and who [was] not, seeking to undo its district court
victory.” Id. at 1278.
The defects in Volkhoff’s Notice are akin to those in
Raley’s notice of appeal. It is not clear from the Notice that
Jane Doe intended to appeal the district court’s dismissal.
As already discussed, the Notice does not mention Jane Doe
or her alleged ownership of Volkhoff, and instead designates
Volkhoff as the only relator, plaintiff, and appellant.
Perhaps in light of this notable absence, Volkhoff urges
us to view “Alexander Volkhoff, LLC” and “Jane Doe” as
interchangeable. We do not accept the proposition that an
LLC is interchangeable with a natural person. See, e.g.,
6 Del. Code tit. 6, §§ 18-201(b), 18-303(a); In re Carlisle
Etcetera LLC, 114 A.3d 592, 605 (Del. Ch. 2015) (observing
that the “core attributes of the LLC” include “its separate
legal existence . . . and limited liability for its members”
(citation omitted)). Moreover, the alleged unity of identity
between Volkhoff and Jane Doe is not clear from the Notice.
Volkhoff also argues that Rule 3(c), as amended in 1993,
precludes dismissal because the Notice mistakenly named
14 U.S. EX REL. VOLKHOFF V. JANSSEN PHARMACEUTICA
Volkhoff as the relator. The record undermines this
argument. Before the district court, Jane Doe indicated that
she changed the relator’s name from “Alexander Volkhoff
LLC” to “Jane Doe” to maintain the FAC’s FCA
employment retaliation claim, which could only be brought
by an individual. In its appeal, Volkhoff acknowledges that
the decision to switch relators in the FAC was tactical. In
the shadow of this tactical choice, Volkhoff filed the Notice,
which failed to designate Jane Doe as an appellant. That
omission has been repeated in subsequent filings since the
Notice. We cannot accept that Volkhoff’s failure to name
Jane Doe as an appellant was an “inadvertent omission” that
Rule 3(c) requires us to overlook. Fed. R. App. P. 3(c)
advisory committee’s note to 1993 amendment.
Finally, Volkhoff relies on Rule 3(c)(4), which instructs
us not to dismiss an appeal “for failure to name a party whose
intent to appeal is otherwise clear from the notice.” But Jane
Doe’s intent to appeal is not clear from the Notice, nor would
it be any clearer even if we were permitted to look beyond
the Notice. The lack of identity between Doe and Volkhoff
was the central merits problem before the district court. The
fact that Volkhoff is not Doe, and vice versa, is precisely
why the district court dismissed Doe’s FCA claim in the first
place—and even before that, why Volkhoff voluntarily
substituted itself out of the case so that Doe could pursue her
retaliation claim. Under these circumstances, we cannot find
that Jane Doe’s intent to appeal was clear when Volkhoff,
and only Volkhoff, filed a Notice.
The cases on which Volkhoff relies that invoke Rule
3(c)(4) involve attorneys who mistakenly appealed sanctions
orders in the names of their parties, when the attorneys
signed and were otherwise named in the filings. See
Detabali v. St. Luke’s Hosp., 482 F.3d 1199, 1204 (9th Cir.
U.S. EX REL. VOLKHOFF V. JANSSEN PHARMACEUTICA 15
2007) (attorney “prepared, signed, and filed Detabali’s
notice of appeal” challenging sanctions order); Retail
Flooring, 339 F.3d at 1149 (notice directly challenged
sanctions against counsel, counsel’s name appeared on the
notice as the attorney, and counsel signed and filed the notice
of appeal); Aetna Life Ins. Co. v. Alla Med. Servs., Inc.,
855 F.2d 1470, 1473 (9th Cir. 1988) (attorney listed on
notice of appeal, where only appealable order was that
imposing sanctions against attorney). None of the
considerations that underlie these cases’ applications of Rule
3(c)(4) applies here. Jane Doe is not serving as Volkhoff’s
attorney, is not otherwise mentioned on the Notice, and
Volkhoff is not appealing a sanctions order against Jane Doe
entered by the district court.
We are mindful of Rule 3(c)’s goal of avoiding
dismissals of appeals solely due to matters of form.
However, Volkhoff has failed to establish that Rule 3(c)
forecloses dismissal of this appeal for lack of jurisdiction.
Because Volkhoff, a nonparty, and Jane Doe, a purported
appellant not named in the Notice, both fail to meet the
requirements of appellate jurisdiction, we DISMISS this
appeal.
APPEAL DISMISSED.