Dave Campbell v. Baylard, Billington, Dempsey ( 2018 )

United States Court of Appeals
For the Eighth Circuit
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No. 18-1664
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Dave Campbell; Catrenia Dawn Campbell
lllllllllllllllllllllPlaintiffs - Appellants
v.
Baylard, Billington, Dempsey & Jensen, P.C.; David Lawrence Baylard, in his
individual and professional capacity
lllllllllllllllllllllDefendants - Appellees
P. Daniel Billington; Michael C. Dempsey; Christopher W. Jensen
lllllllllllllllllllllDefendants
Damian Robert Struzzi, in his individual and professional capacity; Woodland
Lakes Trusteeship, Inc.; Woodland Lakes Community Neighborhood Watch, also
known as Property Owner's Association; Deborah Ann Clutter; Linda Nolen;
Crystal Michelle Kallansrud; Law Office of Gary G. Matheny; Gary Glen
Matheny; Robert Murphy; Wendy Lynn Wexler-Horn; Douglas R. Bader; Cheryl
Davis; Laura Thielmeier Roy; Washington County Sheriffs Department; Thomas
Leon Colyott; Linda Mantia; Cynthia Borgard; Lance E. Wood; Arthur Hurlburt;
Craig Kinneman; Francis Oscar Darian, Jr.; Russell Richards; Lawrence Deis;
James Moldovan; Michael Frank; David Vilcek; Michael Bernheisel; John
Buhmann; Bryan Griffith; Dora Rulo, "Gidget"; Darin Carter; Thomas Larue
Smith, Jr.; William David Mitchell
lllllllllllllllllllllDefendants - Appellees
Alias Washington County Deputy; Unknown Woodland Lakes Trustees; The
McClatchy Company; Anonymous Topix Posters
lllllllllllllllllllllDefendants
Lonnie Evertt Barton; Anonymous Internet Posters
lllllllllllllllllllllDefendants - Appellees
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Appeal from United States District Court
for the Eastern District of Missouri - St. Louis
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Submitted: October 9, 2018
Filed: October 17, 2018
[Unpublished]
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Before GRUENDER, KELLY, and GRASZ, Circuit Judges.
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PER CURIAM.
In this pro se interlocutory appeal, Dave and Catrenia Dawn Campbell
challenge district court1 orders denying their motions seeking recusal in their 42
U.S.C. § 1983 action. We conclude that the orders at issue are not immediately
appealable, see Scarrella v. Midwest Fed. Sav. & Loan, 536 F.2d 1207, 1210 (8th Cir.
1976) (per curiam) (“A determination by a district judge not to disqualify himself is
reviewable by appeal only from a final judgment in the cause in which the motion for
1
The Honorable John A. Ross, United States District Judge for the Eastern
District of Missouri.
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disqualification was filed.”), and that appellants’ reliance on the collateral order
doctrine is misplaced, see Mischler v. Bevin, 887 F.3d 271, 271 (6th Cir. 2018) (per
curiam) (holding that “an order denying recusal is not immediately appealable under
the collateral order doctrine”); United States v. Brakke, 813 F.2d 912, 913 n.3 (8th
Cir. 1987) (per curiam) (concluding that an order denying recusal did not fall within
the collateral order exception to the final judgment rule). Accordingly, we dismiss
the appeal for lack of jurisdiction, and we deny as moot appellants’ pending motion.2
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2
We note that since this appeal was filed, the district court entered a final
judgment. This does not affect our analysis. See Dieser v. Cont’l Cas. Co., 440 F.3d
920, 924 (8th Cir. 2006) (concluding that Fed. R. App. P. 4(a)(2) does not permit a
notice of appeal from a clearly interlocutory decision to serve as an effective notice
of appeal from a subsequent entry of final judgment); State ex rel. Nixon v. Coeur
D’Alene Tribe, 164 F.3d 1102, 1106-07 (8th Cir. 1999) (“To prevent parties from
using frivolous appeals to delay or interrupt proceedings in the district court, that
court does not normally lose jurisdiction to proceed with the case when one party
appeals a non-appealable order.”). Appellants have not appealed the entry of
judgment in appellees’ favor, and the time for doing so has passed. See Fed. R. App.
P. 4(a)(1)(A) (appeal in civil case must be filed with the district court within 30 days
after the entry of judgment or the order appealed from).
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