Omega Claims Solutions, Inc. v. N'Site Solutions, Inc. , 450 F. App'x 402 ( 2011 )

Case: 11-20213 Document: 00511670699 Page: 1 Date Filed: 11/18/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
November 18, 2011
No. 11-20213 Lyle W. Cayce
Summary Calendar Clerk
OMEGA CLAIMS SOLUTIONS, INCORPORATED,
Plaintiff
SCOTT ROTHENBERG,
Appellant
v.
N’SITE SOLUTIONS, INCORPORATED, now known as Claimhub,
Incorporated,
Defendant–Appellee
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:09-CV-1102
Before REAVLEY, SMITH, and PRADO, Circuit Judges.
PER CURIAM:*
After arbitration on the breach of an Asset Purchase Agreement relating
to an Iowa call center sold by N’Site Solutions, Inc. (“N’Site”) to Omega Claims
Solutions, Inc. (“Omega”), Omega filed suit in a Texas state court alleging that
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 11-20213
the award was in violation of 9 U.S.C. § 10(a)(3). N’Site removed the case to
federal court, and cross-motions for summary judgment were filed by N’Site and
Omega. The district court found Omega’s challenge to the award to be meritless
and entered a final judgment on December 17, 2009 for N’Site.
At the end of that order, the district court stated about Omega’s counsel,
Scott Rothenberg:
As a final matter, and for the reasons discussed above, Omega has
forced N’Site to pursue a costly and time-consuming course to
enforce the arbitration award made on December 19, 2008. The
Court believes that Omega’s counsel, Scott Rothenberg, spearheaded
a campaign of misinformation and delay in a Quixotic quest to
vacate an arbitration award that was, as this Court has found,
decided thoughtfully, fairly, and well within the confines of the AAA
Rules. Accordingly, the Court finds that Mr. Rothenberg’s actions
in this case are sufficient to warrant the sua sponte imposition of
Rule 11 sanctions. However, in light of the Court’s decision to
award costs and attorneys’ fees to [N’Site] for the reasons stated
above, the Court will exercise its discretion not to order any
sanctions at this time for Omega’s frivolous claims.
Omega Claims Solutions, Inc. v. N’Site Solutions, Inc., No. 4:09-CV-1102, slip op.
at 12 (S.D. Tex. Dec. 17, 2009). Rothenberg did not appeal that order. On March
29, 2011, N’Site timely filed its notice of appeal of two later orders by the district
court. Pursuant to Federal Rule of Appellate Procedure 4(a)(3), Rothenberg filed
his notice of appeal, appealing the December 17, 2009 order. N’Site later
voluntarily dismissed its appeal, leaving only Rothenberg’s appeal of the
December 17, 2009 order pending.
N’Site argues that the December 17, 2009 order is not appealable because,
it contends, the district court issued no sanction. Although not stylized as such
in its brief, what N’Site is arguing is that Rothenberg lacks standing because
Rothenberg has suffered no injury-in-fact. See K.P. v. LeBlanc, 627 F.3d 115,
122 (5th Cir. 2010). Although in Walker v. City of Mesquite, Tex., 129 F.3d 8312
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No. 11-20213
(5th Cir. 1997), we held that damage to an attorney’s professional reputation
because of a sanction is sufficient to confer standing, see id. at 832–33, here,
there was no sanction. The district court expressly stated it was “exercis[ing] its
discretion not to order any sanctions at this time.” Omega Claims, No.
4:09-CV-1102, slip op. at 12. The mere conclusion that Rothenberg’s actions
were “sufficient to warrant the sua sponte imposition of Rule 11 sanctions,” id.,is neither sufficiently concrete and particularized nor actual and imminent to
confer standing.
For the foregoing reasons, we DISMISS Rothenberg’s appeal for lack of
jurisdiction.
DISMISSED.
3