LLF - TN - Appeal - 2013-04-01 - LLF Opp to Motion to Dismiss

7/28/2019 LLF - TN - Appeal - 2013-04-01 - LLF Opp to Motion to Dismiss

1/14

1 of 14

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

LIBERTY LEGAL FOUNDATION,

JOHN DUMMETT,

LEONARD VOLODARSKY and

CREG MARONEY,

Plaintiffs-Appellants

CASE NO: 12-6634

v.NATIONAL DEMOCRATIC PARTY OF THE USA, INC.,

DEMOCRATIC NATIONAL COMMITTEE,

TENNESSEE DEMOCRATIC PARTY,

DEBBIE WASSERMAN SCHULTZ and

CHIP FORRESTER

Defendants-Appellees

RESPONSE IN OPPOSITION TO APPELLEES MOTION TO DISMISS

APPEAL

Pursuant to Federal Rules of Appellate Procedure and this Courts Rules,

Plaintiffs/Appellants submit this response in opposition to Appellees motion to

dismiss.

Case: 12-6634 Document: 006111639851 Filed: 04/01/2013 Page: 1


2/14

2 of 14

MEMORANDUM

I. IntroductionThe instant appeal is a challenge to the District Courts imposition of

sanctions against Plaintiffs attorney. Imposition of sanctions is collateral to the

merits of the underlying case. Because the imposition of sanctions is collateral, the

District Courts final judgment identified both of its two final orders: the final

order issued in the underlying case and the final order issued in the collateral

matter regarding sanctions.

Because the Plaintiffs challenge the imposition of sanctions, and do not

challenge the ruling on the merits of the underlying case, the instant notice of

appeal first stated that the appeal was from the final judgment, then it noted that

one of the two final orders mentioned in the District Courts judgment related to

sanctions. The notice of appeal did not state that appeal was limited to the amount

of fees imposed. Specifically, the notice identified two documents: the final

judgment itself, and the final order issued in the collateral matter (sanctions).

Appellees instant motion now asserts that this Courtsjurisdiction is limited

to the four corners of one document, specifically the District Courts final order

issued in the collateral matter. Appellees assert that this Court cannot consider any

order of the District Court that led up to the final order on sanctions, even where

the final order itself discusses and cites those previous orders as foundations for its



3/14

3 of 14

final order on sanctions. Precedent cited in Appellees motion does not support

Appellees unique assertion of law.

II. BackgroundOn June 21, 2012, the District Court for the Western District of Tennessee

entered an order granting defendants motion to dismiss. R.31, Or. Dismissing

Compl., PageID 469-488. Over two months later, the district court granted the

motion for sanctions against the plaintiffs counsel only. The district Court did not

assess an amount, instead directing the defendants to file a petition detailing their

attorneys fees and giving the plaintiffs the opportunity to respond. R.43, Or.

Dismissing 1st

Notice of Appeal, PageID 642-43. On September 11, 2012

Plaintiffs filed a first notice of appeal challenging the district courts order

granting sanctions. R.35, 1st

Ntc. Of Appeal., PageID 520.

On November 5th

this Court dismissed Plaintiffs first appeal, explaining, A

district courts order determining that sanctions are appropriate, but not the amount

of sanctions, is not a final and appealable order. R.31, Or. Dismissing Compl.,

PageID 469-488; CitingMorgan v. Union Metal Mfg., 757 F.2d 792, 795-96 (6th

Cir. 1985).

On December 4th

the district court entered judgment in accordance with the

Order Granting Defendants Motion to Dismiss entered on June 21, 2012 and the



4/14

4 of 14

Order Granting In Part Defendants Petition for Reasonable Attorneys Fees entered

on December 4, 2012. R.54, Jdgmt, PageID 710.

On December 27th

the Plaintiffs filed their second notice of appeal

challenging the district courts grant of sanctions. Plaintiffs second notice of

appeal stated:

Notice is hereby given that all plaintiffs in the above-named

case hereby appeal to the United States Court of Appeals for the 6th

Circuit from a judgment entered by the United States District Court

for the Western District of Tennessee (R.54) granting in part

defendants petition for reasonable attorneys fees (R.53), entered inthis action on the 4

th day of December, 2012. R.55, 2

ndNtc. of

Appeal, PageID 711.

The December 4th

final order granting Defendants petition for fees cited as

Background the courts underlying non-final order granting sanctions and setting

forth reasons for granting sanctions. R.53, at page ID694 (citingOrder Granting

in Part, Denying in Part Defs. Mot. for Sanctions 11-12, Aug. 24, 2012 (D.E.

#32)PageID 489-501).

III. Appeal from a Specified Final Order Includes Review of UnderlyingNon-Final Orders

Defendant/Appellees motion contends that this Courts jurisdiction is

limited to the four-corners of a single document because the Appellants notice of

appeal mentions one of the two final orders identified in the District Courts

judgment. Appellees assertion is contrary to well-established precedent.



5/14

5 of 14

This Court has recently confirmed that it has jurisdiction to consider

underlying non-final orders even when the notice of appeal specifically limited the

appeal to a related final order.Norwest Bank Wisconsin v. Malachi Corp., 245 Fed.

Appx. 488 491-92 (6th

Cir. 2007); discussing Peabody Coal Co. v. Local Union

Nos. 1734, 1508 and 1548, 484 F.2d 78, 81 (6th

Cir. 1973) (notice of appeal

specified denial of motion to reconsider, but Court found jurisdiction to review

underlying contempt order); also quoting Lumbermens Mut. Ins. Co. v. Mass.

Bonding & Ins. Co., 310 F.2d 627, 629 (4th Cir. 1962).

It is true that this Court has stated that where a notice of appeal specifies a

particular order, only the specified issues related to that order may be raised on

appeal. Caldwell v. Moore, 968 F.2d 595, 598 (6th

Cir. 1992); citing Wilson v.

Firestone Tire & Rubber Co., 932 F.2d 510 (6th

Cir. 1991). However, the Caldwell

Court went on to explain that its statement of law from Wilson does not prevent

review of underlying non-final orders that relate directly to a final order specified

in the notice of appeal. Caldwell, 968 F.2d at 598; see also Williams v. Guzzardi,

875 F.2d 46, 49 (3rd

Cir. 1989) (We have appellate jurisdiction over orders not

specified in the notice of appeal if there is a connection between the specified and

unspecified order, the intention to appeal the unspecified order is apparent and the

opposing party is not prejudiced and has full opportunity to brief the issues.)



6/14

6 of 14

It is also well-established that an appeal of a final order imposing an amount

of attorneys fees necessarily includes appeal of the underlying determination of

liability regarding sanctions. Morgan v. Union Metal Manufacturing, 757 F.2d

792, 795 (6th

Cir. 1985).

In the instant case the notice of appeal identifies a final order establishing an

amount of attorney fees, pursuant to an earlier non-final order that established

liability regarding sanctions. R.55, 2nd

Ntc. of Appeal, PageID 711;see also R.53,

at page ID694 (citing Order Granting in Part, Denying in Part Defs. Mot. for

Sanctions 11-12, Aug. 24, 2012 (D.E. #32)PageID 489-501). The final order cites

as Background the earlier order on liability forsanctions: In its August 24, 2012

order, the Court granted Defendants motion but only in part. The Court concluded

that Defendants were entitled to reasonable attorneys fees only for their motion to

dismiss for lack of standing and only pursuant to 1927. R.53, Or. Granting in

Part Attorneys Fees, at PageID 694; citing R.32, Order Granting in Part Defs.

Mot. for Sanctions, PageID 489-501.

This Court undeniably has jurisdiction to review non-final orders that

directly underlie a specified final order. Norwest Bank, 245 Fed. Appx. At 491-92

Peabody Coal, 484 F.2d at 81; Caldwell, 968 F.2d at 598; Morgan, 757 F.2d at

795;Lumbermens Mut. Ins., 310 F.2d at 629. Therefore the Appellees motion to

dismiss must be DENIED.



7/14

7 of 14

IV. Specifying Review of One Collateral Issue Does Not Limit the Depthof Review Related to that Collateral Issue

Final judgments often specify that they are in accordance with more than

one previously-entered order. Often, as in the instant case, the previously-entered

orders cited in the judgment represent a final order on the case in chief, as well as a

final order regarding a collateral issue that arose during the case. In such instances

each of the final orders represent separately-appealable matters. Such judgments

represent closure of essentially two separate matters that arose from one initial

lawsuit.

When such a judgment cites two final orders, a notice of appeal specifying

one of those final orders may limit the breadth of the appeal to either the case-in-

chieforthe specified collateral issue. However, specifying one of the final orders

in such a judgment cannot limit the depth of appeal as it relates to the selected

issue.

If this were not the true, then any time such a judgment identified final

orders in a case-in-chief and a collateral matter, and the notice of appeal specified

only one of these orders, the appeal would be limited to the four corners of the

final order entered in that case. This would be true even if the final order was one

sentence that referenced a previously-filed non-final order discussing the reasons

for the final order.



8/14

8 of 14

This clearly absurd result is prevented because it is well settled that an

appeal from a final judgment draws into question all prior non-final rulings and

orders.McLaurin v. Fischer, 768 F.2d 98, 101 (6th

Cir. 1985). While a notice of

appeal specifying a particular order limits the breadth of appeal to the issues

related to that order, it is also understood that issues related to that order must

be considered by the appellate court. Caldwell v. Moore, 968 F.2d 595, 598 (6th

Cir. 1992).

The misapplication of law proposed by the Appellees motion is clearly

illustrated by their attempt to apply it to the instant appeal. This Courts opinion in

Morgan clarified that that an appeal of a final order imposing an amount of

attorneys fees necessarily includes appeal of the underlying determination of

liability regarding sanctions. Morgan v. Union Metal Manufacturing, 757 F.2d

792, 795 (6th

Cir. 1985). Naming the final order on amount of fees imposed in a

notice of appeal automatically specifies all documents of record leading to the

finding of liability on sanctions.Id.

Appellees instant motion would have this Court establish a new rule

preventing review of non-final orders establishing liability, even where the lower

courts final order explicitly referenced the non-final order as the foundation for its

final order on amounts or damages. To prevent establishment of such an illogical

rule, the Appellees motion to dismiss must be DENIED.



9/14

9 of 14

V. Precedent Cited by Appellees Does Not Support their Proposed NewRule

The Appellees motion cites four cases as their primary support for their new

rule. See Appellees Mot. at 7, citing JGR, Inc. v. Thomasville Furniture

Industries, Inc., 550 F.3d 529, 533 (6th

Cir. 2008);Bonner v. Perry, 564 F.3d 424,

429 (6th

Cir. 2009); Caldwell v. Moore, 968 F.2d 595, 598 (6th

Cir. 1992); and

United States v. Pickett, 941 F.2d 411, 415 n.3 (6th

Cir. 1991). However, none

these cases prevent this Court from considering underlying non-final orders related

to an appealed final order. Nor do any of these cases change the rule that appeal of

a final order imposing an amountof attorneys fees necessarily includes review of

the underlying determination on liability regarding sanctions.

InJGR this Court held that it lacked jurisdiction to vacate a specific category

of damages because both parties notices of appeal specifically challenged other

categories of damages, and because neither party briefed the issue of the omitted

category of damages. 550 F.3d at 533. JGR does not support the Appellees

proposed new rule.

In Bonner this Court found a prematurely-filed notice of appeal to be

effective. 564 F.3d at 429. However, the Court held that the notice did not grant

appellate jurisdiction over orders of the District Court that were entered after the

date of the prematurely-filed notice of appeal.Id. TheBonnerCourt also held that



10/14

10 of 14

it lacked jurisdiction over the later-filed District Court orders because those orders

related to parties that were not named in the prematurely-filed notice of appeal.Id.

By contrast, the instant appeal does not involve orders filed by the lower

court after the notice of appeal was filed, nor does it involve parties that were not

named in the notice of appeal. Bonner does not support the Appellees proposed

new rule.

In Caldwell this Court rejected the contention that Rule 3(c) of Federal

Appellate Procedure prevents the Court from reviewing underlying non-final

orders when such orders are not specified in the notice of appeal. 968 F.2d at 598.

In fact, this Courts ruling in Caldwellis directly opposite to the assertion made by

Appellees in their citation to Caldwell. The citation in Appellees motion at page 7

is a quote taken out of context, where the CaldwellCourt is stating the general rule

from Federal Appellate Procedure 3(c). However, the Caldwell opinion then

immediately rejects the contention that Rule 3(c) prevents this Court from

reviewing underlying non-final orders, even when such orders were not specified

in the notice of appeal. Id. In other words, Caldwell establishes that appeal of a

final order necessarily requires review of related underlying non-final orders. Id.

Appellees quotation from Caldwell misrepresents that Courts use of the words

quoted by the Appellees. The CaldwellCourt explicitly found the quoted Rule to

notbe applicable in the manner asserted in the Appellees motion.Id.



11/14

11 of 14

Finally, Appellees citation toPickettquotes a purely dicta footnote in which

the Court concludes that Picketts appeal should notbe limited due to any defects

in his notice of appeal. United States v. Pickett, 941 F.2d 411, 415 n.3 (6th

Cir.

1991). Like the other cases cited by the Appellees, Pickettdoes not support the

Appellees proposed new rule.

Because none of the authority cited by Appellees supports the new rule of

law proposed in their motion, Appellees motion to dismiss must be DENIED.

VI. Appellees Were Not Prejudiced by the Notice of AppealFor all the reasons set forth supra, the Appellants respectfully submit that the

notice of appeal in the instant case contained no error, and is sufficient to challenge

the imposition of sanctions, as set forth in Appellants Brief. However, even if the

notice of appeal was too specific, the Appellees motion to dismiss should be

denied because Appellees have not been prejudiced.

In considering the impact of technical errors upon the sufficiency of a

notice of appeal, the Supreme Court has repeatedly emphasized that absent a

showing of prejudice such errors are to be treated as harmless.McLaurin v.

Fischer, 768 F.2d 98, 102 (6th

Cir. 1985); citingFoman v. Davis, 371 U.S. 178,

181 (1962)(It is contrary to the spirit of the Federal Rules of Civil Procedure for

decisions on the merits to be avoided on the basis of mere technicalities); State

Farm Mutual Automobile insurance Co. v. Palmer, 350 U.S. 944 (1956); United



12/14

12 of 14

States v. Arizona, 346 U.S. 907 (1953); Hoiness v. United States, 335 U.S. 297,

300-01 (1948). [A] notice of appeal should be given a liberal construction.JGR,

Inc. v. Thomasville Furniture Industries, Inc., 550 F.3d 529, 532 (6th

Cir. 2008);

citing Smith v. Barry, 502 U.S. 244, 248 (1992).

In the instant case the Appellees make no assertion of prejudice because they

have not been prejudiced in any way. Appellees were on notice that the Appellants

intended to appeal the District Courts underlying finding of liability regarding

sanctions when the Appellants filed their first notice of appeal with this Court.

R.35, Ntc. Of Appeal, PageID 520.

Appellees were further on notice that the Appellants intended to appeal the

District Courts underlying imposition of sanctions when the Appellants filed a

statement of issues with this Court. Stmt. of Issues, Doc.006111557789, (The

Order entered by the District Court sanctioning the plaintiff/appellants attorney

contained material factual errors, applied the wrong legal standard, and misapplied

the legal standard. Specifically, the District Court sanctioned appellants attorney

for arguing an issue of first impression, in a case raising issues of constitutional

law, despite well established precedent prohibiting such sanctions for arguing issue

of first impression. Also, the District Courts order erroneously concluded that

appellants complaint did not contain certain factual allegations when said facts

were plead.)



13/14

13 of 14

Appellees were further on notice that the Appellants intended to appeal the

District Courts underlying imposition of sanctions when the Appellants filed their

Brief with this Court. Appellants Br., Doc.006111595016.

Because the Appellees have not been prejudiced by any technical error in the

notice of appeal, the Appellees motion to dismiss must be DENIED.McLaurin v.

Fischer, 768 F.2d 98, 102 (6th

Cir. 1985); Foman v. Davis, 371 U.S. 178, 181

(1962).

More importantly, because the instant case involves sanctions against an

attorney for advocating an issue of first impression in a case asserting

Constitutional rights, this case should be decided on the merits. Therefore, the

Appellees motion to dismiss must be DENIED.

VII. ConclusionFor all of the reasons stated herein, the Appellees motion to dismiss must be

DENIED.

Submitted on the 19th

Day of Aviv, in the year of our Lord 2013 (a.k.a. April

1, 2013).

_s/Van R. Irion_________________

Van R. Irion (TNBPR#024519)

Liberty Legal Foundation

9040 Executive Park Drive, Ste. 200

Attorney for Plaintiffs

(423) 208-9953



14/14

14 of 14

CERTIFICATE OF SERVICE

It is hereby certified that on 19th

Day of Aviv, Year of our Lord 2013 (a.k.a.

April 1, 2013), a copy of Response in Opposition to Appellees Motion to

Dismiss Appeal was filed electronically. Parties may access this filing through the

Courts electronic filing system. A copy of this motion will also be served upon the

Defendants via mail.

_s/Van R. Irion_________________

Van R. Irion

Liberty Legal Foundation

9040 Executive Park Drive, Ste. 200

Attorney for Plaintiffs

(423) 208-9953


LLF - TN - Appeal - 2013-04-01 - LLF Opp to Motion to Dismiss

Documents

Transcript of LLF - TN - Appeal - 2013-04-01 - LLF Opp to Motion to Dismiss