Garcia v. Wash ( 1994 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 93-8071
_____________________
ABELIA GARCIA, individually and as the
guardian for her brain damaged son Herman
Garcia and as the next friend for the minor
children of Herman Garcia, St., Marcos
Garcia and Herman Garcia, Jr.,
Plaintiffs-Appellants,
v.
MICHAEL A. WASH, Attorney, JACK PARKER,
of Nationswide Insurance Company,
JONATHON CLUCK, Attorney and Agent for
Jack Parker and Nationwide Insurance Company,
and NATION-WIDE MUTUAL INSURANCE COMPANY,
a/k/a Nationwide Insurance Company,
Defendants-Appellees,
Cross-Appellants,
and
PAUL DAVIS, Judge of the 200th Judicial
District,
Defendant-Appellee.
_________________________________________________________________
Appeals from the United States District Court
for the Western District of Texas
_________________________________________________________________
(April 27, 1994)
Before KING and SMITH, Circuit Judges, and KAZEN*, District
Judge:
PER CURIAM:**
*
District Judge of the Southern District of Texas, sitting
by designation.
**
Pursuant to Local Rule 47.5, the court has determined that
the non-precedential portions of this opinion should not be
Of the numerous issues raised by the appellants on appeal,
only one has precedential value.
Plaintiff-Appellant Abelia Garcia, individually and as the
guardian for her brain damaged son Herman Garcia and as the next
friend for the minor children of Herman Garcia, Sr., Marcos
Garcia and Herman Garcia, Jr., brings this appeal from a judgment
rendered dismissing the plaintiffs' federal claims with prejudice
and dismissing their pendent state law claims without prejudice.
The Garcias' attorney, Erik C. Moebius ("Moebius"), appeals from
the district court's award of sanctions against him for
violations of Federal Rule of Civil Procedure 11 in the amount of
$57,673.95.
* * *
I. Sanctions Against Moebius
Several of the defendants assert that we do not have
jurisdiction to entertain an appeal from the sanctions imposed
upon Moebius because he was not formally named as a party in any
of the notices of appeal. See Torres v. Oakland Scavenger Co.,
487 U.S. 312, 318 (1988) (holding that the failure to name a
party in a notice of appeal constitutes a fatal defect in that it
fails to confer jurisdiction over that party upon the court of
appeals); May v. Houston Post Pension Plan, 898 F.2d 1068, 1070-
71 (5th Cir. 1990) (Since notice of appeal did not name
published. See also United States v. Wesley, 748 F.2d 962, 963
(5th Cir. 1984).
The places at which the published opinion omits parts of the
lengthy unpublished opinion are indicated by asterisks.
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appellant's attorney as an appealing party, court of appeals did
not have jurisdiction to review award of sanctions against that
attorney). We note, however, that the Federal Rules of Appellate
Procedure -- specifically Rule 3(c) upon which the court in
Torres relied -- have recently been amended. The language of,
and advisory comments to, the amendments to Rule 3(c) indicate
that their aim was to overrule Torres and its progeny. See FED.
R. APP. P. 3(c) ("An appeal will not be dismissed . . . for
failure to name a party whose intent to appeal is otherwise clear
from the notice."); see also Report of the Advisory Committee on
the Federal Rules of Appellate Procedure (September 1992),
reprinted in 147 F.R.D. 287, 335 (recognizing the throng of
litigation following Torres and reciting that the new rule was
designed "to prevent the loss of a right to appeal through
inadvertent omission of a party's name . . . .").
Although the notices of appeal in this case were all filed
prior to the December 1, 1993, effective date of the amendments,
we have recently held that the amendments to Federal Rule of
Appellate Procedure 4(a)(4) are to be given retroactive effect.
See Burt v. Ware, 14 F.3d 256, 260 (5th Cir. 1994). Highly
relevant to our decision in Burt v. Ware to apply the rule
retroactively was the fact that the amendments to Rule 4(a)(4)
were designed to remedy the exact procedural default problem
presented. Id.; see also Skoczylas v. Federal Bureau of Prisons,
961 F.2d 543, 545-46 (5th Cir. 1992). Similarly, Rule 3(c) was
amended to prevent the loss of appellate rights where, as here,
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an intended party to an appeal fails to be named specifically.
Moreover, the order from the Supreme Court adopting the amended
rules provides "[t]hat the foregoing amendments . . . shall
govern all proceedings in appellate cases . . . commenced [after
the effective date of the amendments] and, insofar as just and
practicable, all proceedings in appellate cases then pending."
61 U.S.L.W. 4395 (U.S. Apr. 27, 1993) (emphasis added). We hold
that it is "just and practicable" to apply the amendments to Rule
3(c) retroactively. See, e.g., Hoeffler v. Tahoe, 1994 WL 28354at **2 (9th Cir. Jan. 31, 1994) (unpublished opinion) (allowing
an attorney to appeal from a sanctions order entered against him
even though he was not named as a party by retroactive
application of amended Rule 3(c)). But cf. Brooks v. Celeste, 16
F.3d 104, 108 (6th Cir. 1994) (declining to address the
applicability of amended rule 3(c) because the amendments were
not in effect at the time the notice of appeal was filed nor when
the case was submitted for decision).
Applying the amended Rule 3(c) in this case, we find that
Moebius has sufficiently evidenced his intent to appeal the
sanctions order against him within the four corners of at least
one of the notices of appeal in this case. In two of the several
notices of appeal filed by Moebius, he specifically notices this
court -- as well as the other parties -- of his intent to appeal
both the final judgment (in which sanctions were assessed against
him individually) and the district court's "refusal to stay the
execution of the $60,000 sanction against [the Garcias']
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attorney, Erik Moebius." We find that these references are
sufficiently clear to show Moebius' intent to appeal the sanction
order and thus to confer jurisdiction over that asserted error.
See FED. R. APP. P. 3(c) comments, reprinted in 147 F.R.D. at 335-
36 ("The test established by the rule for determining whether [a]
designation[] [is] sufficient is whether it is objectively clear
that a party intended to appeal."). Thus we conclude that we
have jurisdiction over Moebius' challenge to the sanctions order.
* * *
For the reasons discussed in the unpublished opinion, we
affirm the judgment of the district court.
AFFIRMED.
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