Sieverding v. Colorado Bar Assoc ( 2009 )

FILED
United States Court of Appeals
Tenth Circuit
February 4, 2009
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
FOR THE TENTH CIRCUIT
KAY SIEVERDING;
DAVID SIEVERDING,
Plaintiffs-Appellants,
ED SIEVERDING;
TOM SIEVERDING,
Plaintiffs,
v. No. 08-1297
(D.C. No. 02-CV-01950-EWN-OES)
COLORADO BAR ASSOCIATION, (D. Colo.)
and their insurance company (true
name unknown); CITY OF
STEAMBOAT SPRINGS, CO,
a municipality (hereinafter the CITY);
AMERICAN BAR ASSOCIATION,
and their insurance company (true
name unknown); JANE BENNETT,
private citizen acting in conspiracy
with CITY policy makers; KEN
BRENNER, individually and in his
capacity as a CITY Council Member;
JAMES ENGLEKEN, individually and
in his capacity as CITY Council
Member; ART FIEBING, individually
and as employed as CITY assistant
chief of police; SANDY FIEBING,
individually and as the CITY code
enforcement officer; DANIEL
FOOTE, Attorney, individually and in
his capacity as Assistant CITY
attorney; J. D. HAYS, individually and
in capacity as CITY director of public
safety; JAMES “SANDY” HORNER,
individually and as an attorney
working for KLAUZER &
TREMAINE and his insurance
company; CHARLES LANCE,
Attorney, individually and in capacity
as former district attorney and his
insurance; ANTHONY LETTUNICH,
individually and in capacity as CITY
attorney and his insurance; PAUL R.
MCLIMANS, individually and in
capacity as a district attorney and his
insurance company; WENDIE
SCHULENBURG, individually and in
capacity as CITY planning services
director; and her insurance, AKA
Wendie Rooney; MELINDA
SHERMAN, individually and former
Assistant CITY attorney, and in
capacity, and their insurance; KERRY
ST. JAMES, individually and in
capacity as deputy or assistant district
attorney; and his insurance;
ARIANTHE STETTNER, individually
and in capacity as CITY council
member; PAUL STRONG,
individually and in capacity as CITY
Council Member; and his insurance
company; RICHARD J. TREMAINE,
individually and in capacity as an
attorney; and his insurance company;
JAMES WEBER, individually and in
capacity as CITY public works
director; and his insurance company;
P. ELIZABETH WITTEMYER,
individually and in capacity as Deputy
District attorney; and her insurance;
JAMES B.F. OLIPHANT, Bennett’s
attorney and purchaser of plaintiff’s
home; KEVIN BENNETT,
individually and in capacity as CITY
Council member; DAVID R.
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BROUGHAM, individually and in
capacity as apparent CITY insurance
agent (for CIRSA); CIRSA, insurance
for the CITY; INSURANCE AGENT,
other than Brougham and decision
makers for CIRSA (true name
unknown); KATHY CONNELL,
individually and as employed as CITY
Council Member; DAVIS, GRAHAM
& STUBBS, LLC; JAMES
GARRECHT, in capacity as district
court judge; (for injunctive relief only
since he is immune from suit for
damages); HALL & EVANS, LLC,
and their insurance; PAUL HUGHES,
individually and in capacity as CITY
manager; KLAUZER & TREMAINE,
a law firm, and insurance (true name
unknown); RANDALL KLAUZER,
individually and in capacity as an
attorney and his insurance company;
SUZANNE SCHLICHT, individually
and in capacity as newspaper publisher
and her insurance; STEAMBOAT
PILOT & TODAY NEWSPAPER,
(WORLDWEST LIMITED
LIABILITY COMPANY) and
insurance (true name unknown),
Defendants-Appellees.
ORDER AND JUDGMENT *
*
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. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
(continued...)
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Before BALDOCK, BRORBY, and EBEL, Circuit Judges.
Kay and David Sieverding, appearing pro se, appeal from the district
court’s order denying their motion brought pursuant to Federal Rule of Civil
Procedure 60(b)(4). We affirm.
Background
The parties are familiar with the lengthy history of this case. The relevant
facts relating to this appeal are set forth in this court’s decision in Sieverding v.
Colorado Bar Association, 237 F. App’x 355, 357-359 (10th Cir. 2007). In that
decision, filed on June 14, 2007, this court affirmed the district court’s judgment
awarding attorney fees in favor of defendants in the amount of $101,864.82. The
attorney fees were awarded as a Rule 11 sanction for the Sieverdings’ frivolous
and abusive litigation. On June 20, 2008, the Sieverdings filed a Rule 60(b)(4)
motion in district court, which sought to void the judgment awarding attorney
fees in favor of defendants. The district court denied the motion. The
Sieverdings now appeal from that order.
*
(...continued)
and collateral estoppel. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
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Discussion
We review de novo the district court’s denial of a Rule 60(b)(4) motion.
See Amoco Oil Co. v. United States Environmental Protection Agency, 231 F.3d
694, 697 (10th Cir. 2000) (explaining that Rule 60(b)(4) denials are reviewed de
novo unlike other Rule 60(b) motions, which are reviewed for abuse of
discretion).
The Sieverdings first complain that the district court abused its discretion
by denying their Rule 60(b)(4) motion without giving any reasons for the denial.
In support of their position, they rely on Gladwell v. Scofield, 222 F. App’x 750
(10th Cir.), cert. denied, 128 S. Ct. 448 (2007). In Gladwell, an unpublished,
non-binding decision, this court concluded that the district court abused its
discretion by failing to give the reasons for its denial of a Rule 60(b) motion. Id.
at 752-53. But in that case, this court was reviewing the denial of a general Rule
60(b) motion, not a Rule 60(b)(4) motion. Moreover, in Gladwell, this court was
reviewing the district court’s decision for abuse of discretion. Id. at 752. As
noted above, the abuse of discretion standard is not applicable to a Rule 60(b)(4)
motion. See Amoco, 231 F.3d at 697. Because we are reviewing the Rule
60(b)(4) motion de novo, it does not matter that the district court did not give the
reasons for its denial.
As for the merits of their Rule 60(b)(4) motion, the Sieverdings argue that
the judgment awarding attorney fees is void because the district court failed to
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follow Rules 11 and 54 of the Federal Rules of Civil Procedure. The Sieverdings
assert also that they “were not told the basis for the sanctions.” R., Vol. I, Doc.
1069. A party may seek relief under Rule 60(b)(4) if “the judgment is void.” “A
judgment is void only if the court which rendered it lacked jurisdiction of the
subject matter, or of the parties, or acted in a manner inconsistent with due
process of law.” United States v. Buck, 281 F.3d 1336, 1344 (10th Cir. 2002)
(quotation omitted). The Sieverdings did not present any argument in their
Rule 60(b)(4) motion that shows they can meet this standard.
Finally, the Sieverdings’ statement that they did not know the basis for
these sanctions is an outright misrepresentation of the facts of this case. As this
court detailed in the order and judgment affirming the award of attorney fees, the
magistrate judge issued an order in January 2003 putting the Sieverdings on
notice that their claims appeared to be groundless and frivolous in violation of
Rule 11 and that they could be subject to sanctions in the form of paying for the
defendants’ legal fees. See Sieverding, 237 F. App’x at 358-59. At the status
conference later that month, the magistrate judge “attempted again to impress
upon plaintiffs that their claims were groundless and frivolous.” Id. (quotation
omitted). In his sixty-page report recommending that the Sieverdings’ claims be
dismissed and that they be sanctioned, the magistrate judge detailed the
Sieverdings’ Rule 11 violations and how they had been repeatedly warned and
advised that their claims were frivolous and baseless. Id. at 359. The Sieverdings
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filed objections to the magistrate judge’s report and recommendation. The
district court considered the objections and then adopted the magistrate judge’s
recommendation that the Sieverdings be sanctioned. Id. The Sieverdings
received ample notice of the basis for these sanctions and had the opportunity to
object before these sanctions were imposed.
Conclusion
This appeal is frivolous and represents another example of the Sieverdings’
abusive litigation practices. Including this appeal, the Sieverdings have filed
eleven appeals and two requests for mandamus relief arising out of this district
court case. There is nothing left to be reviewed from this district court case. We
caution the Sieverdings that if they file another appeal or special proceeding
arising out of this district court case then we will seek to impose sanctions against
them in the form of appellate filing restrictions. See Winslow v. Hunter (In re
Winslow), 17 F.3d 314, 315-16 (10th Cir. 1994) (imposing filing restrictions on
plaintiffs with a history of abusive and repetitive filings in this court).
The judgment of the district court is AFFIRMED. The Sieverdings’ motion
to supplement the record and to remand for an evidentiary hearing is DENIED.
Entered for the Court
Bobby R. Baldock
Circuit Judge
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