Brown v. PRC, Incorporated ( 1996 )


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  • UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    ERROLL D. BROWN; KIRK ASHLEY
    WILDER,
    Appellants,
    and
    TAMMIE DAVIS,
    No. 95-1725
    Plaintiff,
    v.
    PRC, INCORPORATED; DAVE AULT;
    JEFF ATKINSON,
    Defendants-Appellees.
    Appeal from the United States District Court
    for the Eastern District of Virginia, at Alexandria.
    Leonie M. Brinkema, District Judge.
    (CA-94-938-A)
    Argued: June 5, 1996
    Decided: July 22, 1996
    Before ERVIN, HAMILTON, and LUTTIG, Circuit Judges.
    _________________________________________________________________
    Dismissed by unpublished per curiam opinion.
    _________________________________________________________________
    COUNSEL
    ARGUED: Erroll D. Brown, LAW OFFICES OF ERROLL D.
    BROWN, Landover, Maryland, for Appellant. Stephen William Rob-
    inson, MCGUIRE, WOODS, BATTLE & BOOTHE, McLean, Vir-
    ginia, for Appellee. ON BRIEF: Kirk A. Wilder, LAW OFFICES OF
    ERROLL D. BROWN, Landover, Maryland, for Appellant.
    _________________________________________________________________
    Unpublished opinions are not binding precedent in this circuit. See
    Local Rule 36(c).
    _________________________________________________________________
    OPINION
    PER CURIAM:
    Appellants, Erroll D. Brown and Kirk Ashley Wilder, two of plain-
    tiff Tammie Davis's three co-counsel, appeal from the district court's
    amended order imposing sanctions against them under Federal Rule
    of Civil Procedure 11 for refiling a frivolous Title VII suit. Because
    appellants failed to comply with Federal Rule of Appellate Procedure
    4(a)(4) concerning the time for filing a notice of appeal, we lack juris-
    diction to hear their challenge to the district court's amended order,
    and therefore dismiss this appeal.
    Davis's initial complaint contained five counts brought under Title
    VII and the Equal Pay Act. After a September 1994 hearing, the dis-
    trict court granted defendant's motion to dismiss; dismissing three
    claims with prejudice as being either time-barred or exceeding the
    scope of plaintiff's EEOC charge, and dismissing the two remaining
    claims, both alleging racial discrimination, without prejudice.
    Although the district court granted Davis leave to amend her com-
    plaint, the district court cautioned plaintiff's counsel that, "I do
    strongly suggest you look carefully at what the facts are and make
    sure that you have got a substantial basis to refile." Transcript at 15.
    Despite the district court's explicit admonition, plaintiff's counsel
    filed an amended complaint which did not appear to be based on any
    further investigation into the merits or factual bases of the racial dis-
    crimination claims. Defendant, PRC, Incorporated, moved for sum-
    mary judgment, which was granted by the district court. PRC then
    2
    moved for attorney's fees pursuant to 42 U.S.C.§§ 1988, 2000e-5(k)
    and for Rule 11 sanctions against plaintiff's counsel for filing and
    pursuing patently frivolous claims. On February 10, 1995, the district
    court, pursuant to 
    42 U.S.C. §§ 1981
    (a), 1988, granted in part PRC's
    motion for fees and sanctions, awarding $30,000 of the $84,000
    requested by PRC because plaintiff's counsel had"refil[ed] and pur-
    su[ed] a race discrimination complaint that had no evidentiary basis."
    J.A. at 543. The district court ordered that the $30,000 be paid in
    equal parts by plaintiff and each of her three attorneys.
    On February 24, 1995, one of plaintiff's counsel not a party to this
    appeal, Wanda M. Johnson, and plaintiff herself petitioned the district
    court pursuant to Rule 59(e) to reconsider its order awarding attor-
    ney's fees against them, contending that they were not aware that the
    district court had cautioned against filing an amended complaint with-
    out further inquiry into the merits. On March 10, 1995, before the dis-
    trict court could decided the Rule 59(e) motion, plaintiff's two other
    attorneys, appellants herein, noted an appeal from the district court's
    initial order granting PRC partial attorney's fees. On March 24, 1995,
    the district court granted the motion to reconsider, and amended its
    earlier order. The amended order clarified that the sanctions were
    awarded pursuant to Rule 11 rather than the attorney's fee provisions
    of Title 42 as the original order had stated, and also vacated the award
    against plaintiff, decreased Johnson's sanction to $2,000, and
    increased appellants' sanctions to $14,000 each. On April 7, 1995,
    appellants filed a motion to reconsider which the district court treated
    as being brought pursuant to Rule 60(b) and denied on April 25, 1995.
    J.A. at 648-52.1
    In their brief and at oral argument before this court, appellants
    clearly challenged the March 24 Amended Order imposing $28,000
    in sanctions under Rule 11, despite the fact that appellants' notice of
    appeal, filed March 10, sought relief only from the initial order grant-
    _________________________________________________________________
    1 Appellants failed to specify the procedural authority for their Motion
    to Reconsider The Order of Court Dated 24 March 1994, but the district
    court treated it as being brought under Federal Rule of Civil Procedure
    60(b) because it was the only rule under which the motion was not
    untimely. J.A. at 650.
    3
    ing appellee partial attorney's fees. Federal Rule of Appellate Proce-
    dure 4(a)(4) clearly provides that:
    If any party files a timely motion of a type specified imme-
    diately below, the time for appeal for all parties runs from
    the entry of the order disposing of the last such motion out-
    standing. This provision applies to a timely motion under
    the Federal Rules of Civil Procedure:
    ...
    (C) to alter or amend the judgment under Rule 59;
    ...
    (F) for relief under Rule 60 if the motion is filed no
    later than 10 days after the entry of judgment.
    A notice of appeal filed after announcement or entry of the
    judgment but before disposition of any of the above motions
    is ineffective to appeal from the judgment or order, or part
    thereof, specified in the notice of appeal, until the entry of
    the order disposing of the last such motion outstanding.
    Appellate review of an order disposing of any of the above
    motions requires the party, in compliance with Appellate
    Rule 3(c), to amend a previously filed notice of appeal. A
    party intending to challenge an alteration or amendment of
    the judgment shall file a notice, or amended notice, of
    appeal within the time prescribed by this Rule 4 measured
    from the entry of the order disposing of the last such motion
    outstanding.
    (emphasis added). Appellants' notice of appeal was filed before the
    court's amended order granting Davis's and Johnson's Rule 59(e)
    motion and before the district court's disposition of appellants' Rule
    60(b) motion and is thus "ineffective to appeal from the judgment or
    order." Appellants failed to amend their original notice of appeal or
    to file a new notice of appeal as is plainly required by Rule 4(a)(4)
    in order to appeal the district court's amended order imposing
    4
    Rule 11 sanctions. Accordingly, we lack jurisdiction to review the
    district court's March 24 Amended Order and dismiss this appeal for
    want of jurisdiction.
    DISMISSED2
    _________________________________________________________________
    2 The district court's opinion denying appellants' motion for reconsid-
    eration made clear that the original order erroneously referred to Title 42
    as the basis of the $30,000 reward rather than Rule 11 as the court
    intended. J.A. at 650.
    5
    

Document Info

Docket Number: 95-1725

Filed Date: 7/22/1996

Precedential Status: Non-Precedential

Modified Date: 4/18/2021