James Moore v. City of Columbus, Mississippi, et a ( 2015 )

Case: 14-60191 Document: 00512895661 Page: 1 Date Filed: 01/09/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 14-60191 United States Court of Appeals
Summary Calendar Fifth Circuit
FILED
January 9, 2015
JAMES EARL MOORE, Lyle W. Cayce
Clerk
Plaintiff–Appellant,
v.
GEORGE HARRIS, in his individual and official capacity; SELVAIN
MCQUEEN, in his individual and official capacity; CITY OF COLUMBUS,
Defendants–Appellees.
Appeal from the United States District Court
for the Northern District of Mississippi
USDC 1:12-CV-50
Before SMITH, PRADO, and OWEN, Circuit Judges.
PER CURIAM:*
James Earl Moore filed an action under 42 U.S.C. § 1983 against the City
of Columbus, Mississippi, and several officials (collectively, Columbus),
alleging the officials unlawfully detained and maliciously prosecuted him.
Pursuant to 28 U.S.C. § 636(c) and Federal Rule of Civil Procedure 73, the
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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No. 14-60191
parties agreed a magistrate judge would conduct the entire proceeding. Moore
appeals the dismissal of the case for failure to comply with discovery orders
and the imposition of monetary sanctions. We lack jurisdiction to address
these issues because Moore’s appeal is untimely. We affirm the district court’s
reduction of the sanctions award to a judgment against Moore.
I
This case stems from Moore’s § 1983 action alleging that Columbus
wrongfully detained and prosecuted him after a kidnapping complainant
recanted her story. Thirty days before the discovery deadline, Columbus
notified Moore’s counsel that it wanted to depose Moore. Moore’s counsel did
not respond. After making two additional unanswered requests, Columbus
unilaterally noticed Moore’s counsel that a deposition would take place in a
week’s time. Two days before the scheduled deposition, Moore’s counsel
informed Columbus that she and her client would not be present. She did not,
however, move to quash the notice of deposition or file for a protective order.
When Moore failed to appear, Columbus moved to impose sanctions.
Finding Moore’s explanations for his failure to appear at the deposition
insufficient, the magistrate judge awarded attorney’s fees to cover the costs
Columbus incurred in attending the deposition and ordered Moore to make
himself available for a deposition by April 19, 2013. After Moore failed to do
so, the court granted Columbus’s motion to dismiss with prejudice.
Following dismissal, Columbus submitted an affidavit in support of its
request for $688 in attorney’s fees. The court granted the request for fees and
ordered Moore and his counsel to pay that sum. After Moore and his counsel
failed to comply with two court-imposed payment deadlines, the magistrate
judge granted a third extension on the condition that a $50 per diem penalty
would be assessed for every day the attorney’s fees remained unpaid following
the new deadline. After this third deadline passed without payment and the
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No. 14-60191
per diem penalty had accrued for several months, the court granted
Columbus’s motion to reduce the sanctions award to a judgment of $8,338.
Moore now appeals.
II
Moore challenges four orders: (1) the imposition of sanctions; (2) the
dismissal of his claim with prejudice; (3) the assessment of a per diem fine for
failing to pay the sanctions by the deadline; and (4) reducing the sanctions to
a judgment against him. We lack jurisdiction to address the first three issues
and dismiss accordingly. As the magistrate judge did not abuse his discretion
in reducing the sanctions to a judgment against Moore, we affirm as to that
issue.
Courts of appeals “have jurisdiction of appeals from all final decisions of
the district courts.” 1 In a civil case, a party has thirty days to appeal a final
judgment. 2 “The timely filing of a notice of appeal in a civil case is a
jurisdictional requirement.” 3 No equitable exceptions apply. 4 Moore filed his
appeal on March 19, 2014. The magistrate judge’s April 11, 2013 order
assessing attorney’s fees, the May 7, 2013 dismissal with prejudice, and the
September 20, 2013 order imposing a per diem late-payment penalty were not
timely appealed. Moore argues we can nevertheless exercise jurisdiction
under: (1) the collateral order doctrine; (2) the doctrine of pendent appellate
jurisdiction; and (3) 28 U.S.C. § 1292(b).
1 28 U.S.C. § 1291.
2 FED. R. APP. P. 4(a)(1)(A).
3Ray Haluch Gravel Co. v. Cent. Pension Fund of Int’l Union of Operating Engr’s and
Participating Emp’rs, 134 S. Ct. 773, 779 (2014) (citation omitted).
Colbert v. Brennan, 752 F.3d 412, 416 (5th Cir. 2014) (citing Bowles v. Russell, 551
4
U.S. 205, 214 (2007)).
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The collateral order doctrine allows a party to appeal a non-dispositive
decision that is conclusive, resolves an important question separate from the
merits, and is effectively unreviewable on appeal from a judgment in the
underlying action. 5 The order dismissing with prejudice was a final judgment
on the merits. 6 It directly disposed of Moore’s case on the merits, and thus it
was not “separate from” the merits. 7 The collateral order doctrine does not
apply. Accordingly, as Moore failed to appeal within thirty days, we lack
jurisdiction.
A pre-judgment order awarding attorney’s fees must generally be
appealed after a final judgment has been entered in the underlying action. 8
While such orders are generally unrelated to the merits of underlying actions, 9
they are also typically reviewable alongside the merits on appeal. 10 The
sanctions order would have been reviewable on timely appeal from a judgment
on the merits. Accordingly, Moore had until thirty days after the dismissal of
his case to appeal the April 11 order imposing attorney’s fees. As he failed to
appeal during this timeframe, we lack jurisdiction.
A post-judgment order awarding attorney’s fees or sanctions must be
appealed within thirty days after the entry of such order. 11 Moore failed to
5Mohawk Indus., Inc. v. Carpenter, 558 U.S. 100, 106 (2009) (citing Swint v. Chambers
Cnty. Comm’n, 514 U.S. 35, 42 (1995)).
6See Oreck Direct, LLC v. Dyson, Inc., 560 F.3d 398, 401 (5th Cir. 2009) (“A dismissal
which is designated ‘with prejudice’ is ‘normally an adjudication on the merits . . . .’” (quoting
Fernandez-Montes v. Allied Pilots Ass’n, 987 F.2d 278, 284 n.8 (5th Cir. 1993))).
7 Mohawk, 558 U.S. at 106.
8 See Shipes v. Trinity Indus., Inc., 883 F.2d 339, 344 (5th Cir. 1989).
9Ray Haluch Gravel Co., 134 S. Ct. at 779 (citing Budinich v. Becton Dickinson & Co.,
486 U.S. 196, 200, 202 (1988)).
10 Shipes, 883 F.2d at 344.
11FED. R. APP. P. 4(a)(1)(A) (“In a civil case . . . the notice of appeal . . . must be filed
with the district clerk within 30 days after entry of the judgment or order appealed from.”
(emphasis added)); Armour v. Knowles, 512 F.3d 147, 156 (5th Cir. 2007) (per curiam)
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appeal the September 20 order imposing sanctions within thirty days of its
entry. Accordingly, we lack jurisdiction.
Section 1292(b) allows a district court judge to certify an interlocutory
order for appeal under certain circumstances. 12 The judge did not certify any
question for appellate review.
We therefore lack jurisdiction to review the district court’s first three
orders and dismiss this appeal as to those orders.
III
Moore timely appealed the magistrate judge’s March 6, 2014 order
converting the sanctions into a judgment against Moore. In that order, the
judge found: (1) Moore and his attorney repeatedly failed to pay the sanctions
imposed by the established deadlines; (2) the court repeatedly extended those
deadlines to accommodate them; (3) neither Moore nor his counsel has made
payments; and (4) Moore owes a total of $8,338, notwithstanding a clerical
error in the text of the order. None of these findings are clearly erroneous. 13
The magistrate judge did not abuse his discretion in reducing the sanctions to
a judgment against Moore.
* * *
For the foregoing reasons, we DISMISS this appeal in part and otherwise
AFFIRM the judgment of the district court.
(“Because the order on costs was a post-judgment order and not a prior order, it cannot be
challenged without a separate notice of appeal.” (citations omitted)); Burnley v. City of San
Antonio, 470 F.3d 189, 200 (5th Cir. 2006).
12 28 U.S.C. § 1292(b).
13 See Hornbeck Offshore Servs., L.L.C. v. Salazar, 713 F.3d 787, 792 (5th Cir. 2013).