Vesco v. Snedecker

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
NOV 14 2003
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
MICHAEL P. VESCO,
Plaintiff,
v. No. 02-2181
(D.C. No. CIV-00-1805-WJ/LCS)
PAT SNEDECKER, Chief of Security, (D. N.M.)
LCCF; JOE WILLIAMS, Chief
Warden, LCCF; WACKENHUT
CORRECTIONS CORPORATION;
NEW MEXICO DEPARTMENT OF
CORRECTIONS; ROBERT PERRY,
Secretary of Corrections; JOHN
SHANKS, Director of Adult Prisons;
MICHAEL SOLIZ, Captain, LCCF;
SHANNON MANNING, Sgt., LCCF;
LEA COUNTY, NM; LAWRENCE
TAFOYA, Warden, SNMCF; LUPE
MARSHALL, Associate Warden,
SNMCF; KATHLEEN HODGES,
Mental Health Svcs. Dir., SNMCF,
Defendants-Appellees,
PAUL LIVINGSTON,
Attorney-Appellant.
ORDER AND JUDGMENT *
*
This order and judgment is not binding precedent, except under the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
(continued...)
Before MURPHY , HARTZ , and McCONNELL , Circuit Judges.
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.
Appellant Paul Livingston, an attorney at law representing himself on
appeal, challenges the district court’s order denying his motion for sanctions and
attorney fees. He also appeals the order denying reconsideration. The only
defendants-appellees involved in this appeal are employees, officials, or agencies
of the State of New Mexico; they will be referred to as “the State defendants.”
Because Mr. Livingston lacks standing to bring this appeal, the appeal is
dismissed.
Mr. Livingston represented plaintiff Michael Vesco in the underlying case
wherein Mr. Vesco, an inmate, alleged that his civil rights were violated by prison
personnel. During the course of those proceedings, Mr. Vesco informed the trial
court, some of the defendants, and Mr. Livingston that he wanted Mr. Livingston
to cease representing him. At one point, Mr. Vesco relented and consented to
*
(...continued)
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
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have Mr. Livingston represent him at some of the proceedings. The record is
unclear as to what and when those proceedings were. Nevertheless, Mr. Vesco
again requested Mr. Livingston to withdraw, but Mr. Livingston refused to do so
until alternate counsel was appointed for Mr. Vesco. Aplee. Supp. App., Vol. II
at 488-89. The State defendants filed motions to dismiss and for summary
judgment seeking to dispose of all of Mr. Vesco’s claims. The State defendants
served copies of all motions on Mr. Livingston, but not on Mr. Vesco. Neither
Mr. Vesco nor Mr. Livingston responded to the motions. The district court
dismissed the case by granting the motion to dismiss for failure to exhaust
administrative remedies. Id. at 494.
Mr. Livingston then filed a motion under Rule 11 of the Federal Rules of
Civil Procedure requesting an “award of sanctions, including attorney’s fees, for
the cost, expense, and damage caused by [the State] Defendants’ abusive filing of
unnecessary, burdensome, and vexatious motions and memoranda.” Aplt. App.
at 8. Mr. Livingston claimed that the State defendants’ motions to dismiss and
for summary judgment should have been served on Mr. Vesco and that the sheer
number and complexity of those motions was unnecessarily burdensome.
The State defendants then filed their motion for fees and costs to be
assessed against Mr. Livingston. The district court held a hearing on June 4,
2002. At its conclusion, the court imposed sanctions against Mr. Livingston in
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the form of attorney fees and expenses incurred by the State defendants. Vesco v.
Snedecker , 236 F. Supp. 2d 1272, 1278 (D.N.M. 2002), appeal dismissed
(10th Cir. Nov. 4, 2002). The district court denied Mr. Livingston’s Rule 11
motion and his motion to reconsider. He appeals both orders.
The State defendants challenge Mr. Livingston’s standing to appeal.
Standing is a jurisdictional issue. Vt. Agency of Natural Res. v. United States
ex rel. Stevens , 529 U.S. 765, 771 (2000). An attorney has standing to appeal
orders that directly affect him, but he does not have standing to appeal orders that
affect only his client. Weeks v. Indep. Sch. Dist. No. I-89 , 230 F.3d 1201, 1213
(10th Cir. 2000).
Mr. Livingston’s Rule 11 motion sought attorney fees to be paid to him,
and sanctions to be imposed against the attorneys representing the State
defendants. “An order awarding or denying attorney fees is an order applicable to
the client, not the client’s counsel.” Id. Therefore, Mr. Livingston does not have
standing to challenge the order denying the request for attorney fees. See id.We also hold that Mr. Livingston lacks standing to challenge the order
denying sanctions. Generally, an attorney does not have standing to bring
a Rule 11 motion on his own behalf (as opposed to on behalf of his client-party).
See N.Y. News, Inc. v. Kheel , 972 F.2d 482, 486 (2d Cir. 1992) (rejecting
non-party’s request to intervene seeking to protect judicial process against abuse);
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see also Nyer v. Winterthur Int’l , 290 F.3d 456, 459 (1st Cir. 2002) (reciting
general rule that non-party may not bring Rule 11 motion for sanctions; collecting
cases); Westlake N. Prop. Owners Ass’n v. City of Thousand Oaks , 915 F.2d
1301, 1307 (9th Cir. 1990) (holding attorney for party cannot bring Rule 11
motion for sanctions on his own behalf).
APPEAL DISMISSED.
Entered for the Court
Michael W. McConnell
Circuit Judge
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