Vesco v. Snedecker , 80 F. App'x 657 ( 2003 )


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  •                                                                          F I L E D
    United States Court of Appeals
    Tenth Circuit
    UNITED STATES COURT OF APPEALS
    NOV 14 2003
    FOR THE TENTH CIRCUIT
    PATRICK FISHER
    Clerk
    MICHAEL P. VESCO,
    Plaintiff,
    v.                                                  No. 02-2181
    (D.C. No. CIV-00-1805-WJ/LCS)
    PAT SNEDECKER, Chief of Security,                    (D. N.M.)
    LCCF; JOE WILLIAMS, Chief
    Warden, LCCF; WACKENHUT
    CORRECTIONS CORPORATION;
    NEW MEXICO DEPARTMENT OF
    CORRECTIONS; ROBERT PERRY,
    Secretary of Corrections; JOHN
    SHANKS, Director of Adult Prisons;
    MICHAEL SOLIZ, Captain, LCCF;
    SHANNON MANNING, Sgt., LCCF;
    LEA COUNTY, NM; LAWRENCE
    TAFOYA, Warden, SNMCF; LUPE
    MARSHALL, Associate Warden,
    SNMCF; KATHLEEN HODGES,
    Mental Health Svcs. Dir., SNMCF,
    Defendants-Appellees,
    PAUL LIVINGSTON,
    Attorney-Appellant.
    ORDER AND JUDGMENT           *
    *
    This order and judgment is not binding precedent, except under the
    doctrines of law of the case, res judicata, and collateral estoppel. The court
    generally disfavors the citation of orders and judgments; nevertheless, an order
    (continued...)
    Before MURPHY , HARTZ , and McCONNELL , Circuit Judges.
    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.
    Appellant Paul Livingston, an attorney at law representing himself on
    appeal, challenges the district court’s order denying his motion for sanctions and
    attorney fees. He also appeals the order denying reconsideration. The only
    defendants-appellees involved in this appeal are employees, officials, or agencies
    of the State of New Mexico; they will be referred to as “the State defendants.”
    Because Mr. Livingston lacks standing to bring this appeal, the appeal is
    dismissed.
    Mr. Livingston represented plaintiff Michael Vesco in the underlying case
    wherein Mr. Vesco, an inmate, alleged that his civil rights were violated by prison
    personnel. During the course of those proceedings, Mr. Vesco informed the trial
    court, some of the defendants, and Mr. Livingston that he wanted Mr. Livingston
    to cease representing him. At one point, Mr. Vesco relented and consented to
    *
    (...continued)
    and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
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    have Mr. Livingston represent him at some of the proceedings. The record is
    unclear as to what and when those proceedings were. Nevertheless, Mr. Vesco
    again requested Mr. Livingston to withdraw, but Mr. Livingston refused to do so
    until alternate counsel was appointed for Mr. Vesco. Aplee. Supp. App., Vol. II
    at 488-89. The State defendants filed motions to dismiss and for summary
    judgment seeking to dispose of all of Mr. Vesco’s claims. The State defendants
    served copies of all motions on Mr. Livingston, but not on Mr. Vesco. Neither
    Mr. Vesco nor Mr. Livingston responded to the motions. The district court
    dismissed the case by granting the motion to dismiss for failure to exhaust
    administrative remedies.   Id. at 494.
    Mr. Livingston then filed a motion under Rule 11 of the Federal Rules of
    Civil Procedure requesting an “award of sanctions, including attorney’s fees, for
    the cost, expense, and damage caused by [the State] Defendants’ abusive filing of
    unnecessary, burdensome, and vexatious motions and memoranda.” Aplt. App.
    at 8. Mr. Livingston claimed that the State defendants’ motions to dismiss and
    for summary judgment should have been served on Mr. Vesco and that the sheer
    number and complexity of those motions was unnecessarily burdensome.
    The State defendants then filed their motion for fees and costs to be
    assessed against Mr. Livingston. The district court held a hearing on June 4,
    2002. At its conclusion, the court imposed sanctions against Mr. Livingston in
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    the form of attorney fees and expenses incurred by the State defendants.           Vesco v.
    Snedecker , 
    236 F. Supp. 2d 1272
    , 1278 (D.N.M. 2002),           appeal dismissed
    (10th Cir. Nov. 4, 2002). The district court denied Mr. Livingston’s Rule 11
    motion and his motion to reconsider. He appeals both orders.
    The State defendants challenge Mr. Livingston’s standing to appeal.
    Standing is a jurisdictional issue.      Vt. Agency of Natural Res. v. United States
    ex rel. Stevens , 
    529 U.S. 765
    , 771 (2000). An attorney has standing to appeal
    orders that directly affect him, but he does not have standing to appeal orders that
    affect only his client.   Weeks v. Indep. Sch. Dist. No. I-89    , 
    230 F.3d 1201
    , 1213
    (10th Cir. 2000).
    Mr. Livingston’s Rule 11 motion sought attorney fees to be paid to him,
    and sanctions to be imposed against the attorneys representing the State
    defendants. “An order awarding or denying attorney fees is an order applicable to
    the client, not the client’s counsel.”     
    Id.
     Therefore, Mr. Livingston does not have
    standing to challenge the order denying the request for attorney fees.       See 
    id.
    We also hold that Mr. Livingston lacks standing to challenge the order
    denying sanctions. Generally, an attorney does not have standing to bring
    a Rule 11 motion on his own behalf (as opposed to on behalf of his client-party).
    See N.Y. News, Inc. v. Kheel , 
    972 F.2d 482
    , 486 (2d Cir. 1992) (rejecting
    non-party’s request to intervene seeking to protect judicial process against abuse);
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    see also Nyer v. Winterthur Int’l , 
    290 F.3d 456
    , 459 (1st Cir. 2002) (reciting
    general rule that non-party may not bring Rule 11 motion for sanctions; collecting
    cases); Westlake N. Prop. Owners Ass’n v. City of Thousand Oaks      , 
    915 F.2d 1301
    , 1307 (9th Cir. 1990) (holding attorney for party cannot bring Rule 11
    motion for sanctions on his own behalf).
    APPEAL DISMISSED.
    Entered for the Court
    Michael W. McConnell
    Circuit Judge
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