Mitchell v. Kraft Pizza Company , 162 F. App'x 801 ( 2006 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
January 10, 2006
FOR THE TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
ARMIN P. MITCHELL,
Plaintiff-Appellant,
WILHEMENA LAWRENCE No. 04-1090
MITCHELL, (D.C. No. 02-D-1690 (CBS))
(D. Colo.)
Attorney-Appellant,
v.
KRAFT PIZZA COMPANY,
Defendant-Appellee.
ORDER AND JUDGMENT *
Before KELLY, McKAY, and McCONNELL, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 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This order and judgment is not binding precedent, except under the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, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
Plaintiff Armin P. Mitchell and his former attorney, Wilhemena Lawrence
Mitchell, appeal the district court’s imposition of sanctions against Ms. Mitchell.
Plaintiff’s opening and reply briefs are not models of clarity, but it appears that
he also challenges the district court’s denial of his motion to compel, and its grant
of summary judgment in favor of his former employer, Kraft Pizza Company
(Kraft), on his claims brought pursuant to Title VII, 42 U.S.C. § 1981, the Fair
Labor Standards Act, the Family Medical Leave Act, and the Americans with
Disabilities Act.
As a preliminary matter, we note that the challenged sanctions were entered
solely against plaintiff’s former attorney, Ms. Mitchell. 1 Kraft contends that
plaintiff lacks standing to appeal the sanctions order, and that we should therefore
dismiss that part of the appeal for want of jurisdiction. We agree.
In order to satisfy the jurisdictional prerequisite of standing, the
plaintiff must do more than allege abstract injury, he must show that
he has sustained or is immediately in danger of sustaining some
direct injury as the result of the challenged official conduct and the
injury or threat of injury must be both real and immediate, not
conjectural or hypothetical.
Phelps v. Hamilton, 122 F.3d 1309, 1316 (10th Cir. 1997) (quotation marks
omitted). In this case, plaintiff argues that the award of sanctions against
1
This court granted Ms. Mitchell’s motion to withdraw as counsel to
plaintiff on April 22, 2005, shortly after the Supreme Court of Colorado
suspended her from the practice of law.
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Ms. Mitchell somehow harmed him, but his allegations of harm are vague and
unsubstantiated. We therefore conclude that we lack jurisdiction to hear, and we
accordingly dismiss, plaintiff’s challenges to the imposition of sanctions against
Ms. Mitchell. See Laurino v. Tate, 220 F.3d 1213, 1218 (10th Cir. 2000) (citing
Cabrera v. City of Huntington Park, 159 F.3d 374, 382 (9th Cir. 1998), for its
holding that client lacks standing to appeal order imposing sanctions against his
attorney).
Our jurisdiction to consider the balance of the issues raised on appeal arises
under 28 U.S.C. § 1291. We review for abuse of discretion both the district
court’s imposition of sanctions pursuant to Fed. R. Civ. P. 16(f) and 37(a)(4)(B),
and its denial of plaintiff’s motion to compel. Olcott v. Del. Flood Co., 76 F.3d
1538, 1557 (10th Cir. 1996) (Rule 16(f) sanctions); Interactive Prods. Corp. v.
a2z Mobile Office Solutions, Inc., 326 F.3d 687, 701 (6th Cir. 2003) (Rule
37(a)(4)(B) sanctions); Cummings v. Gen. Motors Corp., 365 F.3d 944, 952-53
(10th Cir. 2004) (motion to compel). We review de novo the district court’s grant
of summary judgment, applying the same standard as that court under Fed. R. Civ.
P. 56(c). Simms v. Okla. ex rel. Dep’t of Mental Health & Substance Abuse
Servs., 165 F.3d 1321, 1326 (10th Cir. 1999).
Ms. Mitchell “was the party aggrieved by the district court’s imposition of
sanctions and, therefore, [i]s the proper party to appeal from th[at] decision.”
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Riggs v. Scrivner, Inc., 927 F.2d 1146, 1149 (10th Cir. 1991). Kraft, however,
suggests that Ms. Mitchell cannot appeal the sanctions award because she did not
file a notice of appeal on her own behalf. But Kraft’s suggestion fails to
recognize that the notice of appeal and docketing statement make clear
Ms. Mitchell’s intent to appeal the imposition of sanctions. Fed. R. App.
P. 3(c)(4); Trotter v. Regents of Univ. of N.M., 219 F.3d 1179, 1184 (10th Cir.
2000) (holding that docketing statement filed within period for taking appeal can
cure deficiencies in notice of appeal). Notwithstanding her intent to appeal the
award of sanctions, Ms. Mitchell has waived the issue by failing to present any
argument on her own behalf challenging the award’s merit. Abercrombie v. City
of Catoosa, 896 F.2d 1228, 1231 (10th Cir. 1990) (holding failure to argue issue
in appellate brief or at oral argument waives the issue). Therefore, we must
affirm the imposition of sanctions.
We now turn to plaintiff’s contention that the district court erred in denying
his motion to compel. Having carefully considered plaintiff’s arguments, the
record, and the applicable law, we conclude that the district court did not abuse
its discretion in affirming the magistrate judge’s ruling denying plaintiff’s motion
to compel. Further, the district court did not abuse its discretion in denying
plaintiff’s motion to reconsider the order denying his motion to compel. United
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States v. Barajas-Chavez, 358 F.3d 1263, 1266 (10th Cir. 2004) (reviewing denial
of motion to reconsider for abuse of discretion).
Plaintiff also argues that the district court erred in granting Kraft’s motion
for summary judgment. We disagree. Having carefully considered plaintiff’s
arguments, the record, and the applicable law, we hold that the district court did
not err in granting Kraft summary judgment.
Finally, we decline to consider the handful of issues plaintiff raises for the
first time on appeal in his pro se reply brief. Stump v. Gates, 211 F.3d 527, 533
(10th Cir. 2000) (“This court does not ordinarily review issues raised for the first
time in a reply brief.”); Ogden v. San Juan County, 32 F.3d 452, 455 (10th Cir.
1994) (observing that appellant’s pro se status does not excuse him from
“comply[ing] with the fundamental requirements of the Federal Rules of Civil and
Appellate Procedure.”).
That part of the appeal in which plaintiff challenges the imposition of
sanctions against Ms. Mitchell is DISMISSED for lack of jurisdiction. The
judgment of the district court is AFFIRMED. Kraft’s motion for sanctions is
DENIED.
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Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
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