Sieverding v. Colorado Bar Assoc

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
June 14, 2007
FO R TH E TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
KAY SIEVERDING; DAVID
SIEV ER DIN G ,
Plaintiffs-Appellants,
No. 06-1439
and (D.C. No. 02-cv-1950-EW N-OES)
(D . Colo.)
ED SIEV ER DIN G ;
TO M SIEV ER DIN G ,
Plaintiffs,
v.
C OLO RA D O BA R A SSO CIA TION,
and their insurance company (true
nam e unknow n); C ITY O F
STEA M B OA T SPR IN G S, C O,
a municipality (hereinafter the CITY);
A M ER ICAN BA R A SSO CIA TION,
and their insurance company (true
name unknown); JAN E BENNETT,
private citizen acting in conspiracy
w ith CITY policy makers; K EN
BRENNER, individually and in his
capacity as a CITY Council M ember;
JAM ES ENGLEKEN, individually and
in his capacity as CITY Council
M ember; ART FIEBING, individually
and as employed as CITY assistant
chief of police; SA N D Y FIEB ING,
individually and as the CITY code
enforcement officer; DA NIEL
FOOTE, Attorney, individually and in
his capacity as Assistant CITY
attorney; J. D. HAYS, individually and
in capacity as CITY director of public
safety; JAM ES “SAND Y” HORNER,
individually and as an attorney
working for KLAUZER &
TREM AINE and his insurance
com pany; A N TH O N Y LETTU NICH,
individually and in capacity as CITY
attorney and his insurance; PAUL R.
M CLIM ANS, individually and in
capacity as a district attorney and his
insurance company; WENDIE
SCHULENBURG, also known as
W endie R ooney, individually and in
capacity as CITY planning services
director; and her insurance;
M ELIN DA SHERM AN, individually
and former Assistant CITY attorney,
and in capacity, and their insurance;
KERRY ST. JAM ES, individually and
in capacity as deputy or assistant
district attorney; and his insurance;
ARIA NTHE STETTNER, individually
and in capacity as CITY council
m em ber; PA U L STR ON G ,
individually and in capacity as CITY
Council M ember; and his insurance
company; RICH AR D TREM AINE,
individually and in capacity as an
attorney; and his insurance company;
JA M ES W EBER, individually and in
capacity as CITY public works
director; and his insurance company;
P. ELIZABETH WITTEM YER,
individually and in capacity as D eputy
District attorney; and her insurance;
JAM ES B.F. OLIPHANT, Bennett’s
attorney and purchaser of plaintiff’s
home; KEV IN B ENN ETT,
individually and in capacity as CITY
Council member; DAVID
BROUGHAM , individually and in
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capacity as apparent CITY insurance
agent (for C IR SA ); K A TH Y
CONNELL, individually and as
employed as CITY Council M ember;
HALL & EVANS, LLC, and their
insurance; KLA UZER & TREM AINE,
a law firm, and insurance (true name
unknown); RANDA LL KLAUZER,
individually and in capacity as an
attorney and his insurance company;
SUZANNE SCHLICHT, individually
and in capacity as newspaper publisher
and her insurance; STEA M B OAT
PILOT & TODA Y NEW SPAPER,
(W OR LDW EST LIM ITED
LIABILITY COM PA NY) and
insurance (true name unknown),
Defendants-Appellees,
and
CHARLES LANCE, Attorney,
individually and in capacity as former
district attorney and his insurance;
C IRSA , insurance for the C ITY ;
INSU RANCE AGENT, other than
Brougham and decision makers for
CIRSA (true name unknown); DAVIS,
GR AH AM & STUBBS, LLC; JAM ES
GARRECHT, in capacity as district
court judge; (for injunctive relief only
since he is immune from suit for
damages); PAUL H UGHES,
individually and in capacity as CITY
manager,
Defendants.
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OR D ER AND JUDGM ENT *
Before BR ISC OE, M cKA Y, and GORSUCH, Circuit Judges.
Kay and David Sieverding appeal from the district court’s judgment
awarding attorney’s fees in favor of defendants and against them in the amount of
$101,864.82. W e exercise jurisdiction pursuant to 28 U.S.C. § 1291 and affirm.
The parties are intimately familiar with the factual and procedural
background of this appeal so our background discussion will be abbreviated. This
appeal stems from a complaint the Sieverdings filed against defendants in 2002.
In October 2003, the magistrate judge entered a recommendation that plaintiffs’
complaint be dismissed, that they be ordered to pay attorney’s fees and costs as a
sanction for violating Rule 11, and that filing restrictions be entered against them.
In M arch 2004, the district court entered an order adopting the m agistrate judge’s
recommendation in all respects. The district court then recommitted the matter to
the magistrate judge to determine the amount of the attorney’s fees and costs to
be awarded to defendants.
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
these appeals. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The cases are
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. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
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The Sieverdings filed three appeals from the district court’s M arch 2004
order, which were consolidated. This court affirmed the district court’s order in
April 2005. See Sieverding v. Colo. Bar Ass’n, 126 F. App’x 457, 459 (10th Cir.
2005) (unpublished) (Sieverding I). W hile the appeal was pending, the magistrate
judge ordered supplemental briefing from the parties on the amount of the
attorney’s fees and costs. The magistrate judge then entered an order in M ay
2004 aw arding specific amounts of fees and costs to the individual defendants. In
June 2004, the Sieverdings filed objections to the magistrate judge’s order. In
September 2006, the district court construed the magistrate judge’s M ay 2004
order as a recommendation and accepted it in part and rejected it in part. The
district court then entered a final judgment awarding specific amounts of
attorney’s fees and costs to the individual defendants. The Sieverdings now
appeal from this judgment. Appellees have filed a motion to dismiss pursuant to
the fugitive disentitlement doctrine. W e deny this motion because this appeal is
ripe for a decision on the merits.
Appellees argue that our decision in Sieverding I previously determined the
Sieverding’s liability for fees and costs. Although we did affirm the district
court’s judgment in Sieverding I, we made no express determination as to the
Sieverding’s liability for fees and costs. Any implied decision on the attorney’s
fee issue in Sieverding I would not be binding on this panel because this court
lacked jurisdiction to review the attorney’s fee determination at that time because
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the award had not yet been reduced to a sum certain. See Am. Soda, LLP v. U.S.
Filter Wastewater Group, Inc., 428 F.3d 921, 924-25 (10th Cir. 2005).
W e review for abuse of discretion the district court’s decision to impose
Fed. R. Civ. P. 11 sanctions in the form of attorney’s fees and costs. See White v.
Gen. M otors Corp., 908 F.2d 675, 678 (10th Cir. 1990). The Sieverdings have
not presented any reasoned argument demonstrating that the district court abused
its discretion in awarding attorney’s fees and costs as a Rule 11 sanction.
Rule 11 provides, in relevant part, that anyone who signs a pleading or
other paper certifies “that to the best of the person’s knowledge, information, and
belief, formed after an inquiry reasonable under the circumstances,” the claims
therein are: (1) warranted by existing law or by a non-frivolous argument for new
or modified law; and (2) supported by evidence or likely to be supported by
evidence after discovery and investigation. Fed. R. Civ. P. 11(b). Parties who
file lawsuits on a pro se basis must comply with the provisions of Rule 11. Id.In the magistrate judge’s initial October 2003 recommendation regarding
the attorney’s fee issue, he explained that he had entered an order on January 10,
2003, setting the case for a status conference and notifying the Sieverdings that
their claims “appear[ed] to be completely groundless and frivolous, in violation of
[Rule 11].” A plee. App., Vol. III at 344 (quotation omitted). The magistrate
judge noted that the January 10 order also informed plaintiffs that his
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purposes in setting the status conference were two-fold: (1) to
discuss with plaintiffs [his] concerns that their claims were
groundless, and (2) to attempt to persuade plaintiffs to reconsider
their claims in light of the probability that they will be sanctioned
and/or ordered to pay legal fees to the defendants who are the
subjects of frivolous claims.
Id. (quotation omitted). At the January 30 status conference, the magistrate judge
“attempted again to impress upon plaintiffs that their claims were groundless and
frivolous” and “urged them, again, to reconsider most, if not all, of their claims in
light of the remarks made by [him], and by the attorneys who addressed the court
with comm ents about the groundless nature of the claims against their respective
clients.” Id. at 345.
The magistrate judge then continued his recommendation by detailing the
Rule 11 violations in the Sieverdings’ complaint and explained again how they
had been repeatedly advised and warned by the court and other lawyers that their
claims were baseless and frivolous. Id. at 389-91. The magistrate judge
explained that his January 10 order and the January 30 status conference “stood as
clear notice to plaintiffs of the probability that sanctions would be imposed
against them if they failed or refused to withdraw the claims that the court or
counsel indicated were frivolous or groundless.” Id. at 397. The magistrate judge
also discussed the Sieverdings’ abusive litigation tactics and the need for
compensation to be paid to the defendants who were the victims of this abuse. Id.
at 393-94.
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As noted above, the district court adopted the magistrate judge’s
recommendation and then recommitted the matter to the magistrate judge to
resolve the amount of the sanction. In a thorough and well-reasoned
seventeen-page order, the magistrate judge applied the factors identified in our
case law for determining the amount of Rule 11 sanctions. See Aplee. App., Vol.
IV at 635-651. The district court review ed de novo the Sieverdings’ objections to
the magistrate judge’s order and accepted the recommendation, with the exception
of one portion of the award for fees to the American Bar Association, which it
rejected.
The Sieverdings fail to present any argument regarding the reasonableness
of the amount of the award. Because of this, the Sieverdings have waived any
challenge to the reasonableness of the award. See State Farm Fire & Cas. Co. v.
M hoon, 31 F.3d 979, 984 n. 7 (10th Cir. 1994) (noting that failure to raise issue in
an opening appellate brief waives issue on appeal).
Accordingly, for the reasons stated in the magistrate judge’s October 14,
2003 recommendation and M ay 14, 2004 order, as adopted by the district court in
its M arch 19, 2004 and September 27, 2006 orders, w e AFFIRM the district
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court’s judgment awarding fees in the amount of $101,864.82 in favor of
defendants and against the Sieverdings. W e DENY all outstanding motions.
Entered for the Court
M onroe G. M cKay
Circuit Judge
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