Académique Documents
Professionnel Documents
Culture Documents
No. 10-1829
v.
NORFOLK SOUTHERN RAILWAY COMPANY,
Defendant Appellee,
and
NORFOLK SOUTHERN CORPORATION; JOHN DOES 1-10,
Defendants.
No. 11-1365
CHRISTY T. DALTON,
Petitioner,
ROBERT M. BELL; ERWIN J. LEIZERMAN; MICHAEL J. LEIZERMAN;
PATRICK J. PEROTTI; STEPHEN K. SURASKY,
Movants,
v.
NORFOLK SOUTHERN RAILWAY COMPANY,
Defendant Appellee,
and
NORFOLK SOUTHERN CORPORATION; JOHN DOES 1-10,
Defendants.
Appeals from the United States District Court for the District
of South Carolina, at Aiken.
Margaret B. Seymour, District
Judge. (1:05-cv-00115-MBS)
Argued:
Decided:
PER CURIAM:
Appellants challenge the district courts orders enjoining
their state court actions and imposing attorneys fees against
their counsel.
I.
The underlying facts arise from a Norfolk Southern Railway
Company (Norfolk Southern) train derailment and collision that
occurred in January 2005, in Graniteville, South Carolina.
The
to
economic
individuals,
loss,
and
damage
evacuation
to
real
and
expenses.
personal
Multiple
Of import
Affected
class
members
could
opt
out
had
to
written
request
of
the
Curtis
the
Class
Notice
Upon receipt of an
opt-out form, Epiq stamped the form with a barcode and datestamp indicating the receipt date.
passed,
the
district
court
approved
the
Joint
Class
Action
the
train
derailment.
The
state
court
actions
proceeded
While
Norfolk
Southern
argued
that
the
Curtis
class
settlement
hearing
at
which
Appellants
counsel,
orders
granting
Norfolk
Southerns
motions
for
injunctions.
file
and
motions
affidavits
supporting
and
specifying
its
motions
for
Schmidt
filed
separate
and
attend
the
K&B
Properties,
hearing
due
explaining
to
that
illness.
he
was
unable
Additionally,
to
Norfolk
April
14,
reconsideration
and
2010,
the
at
hearing
motions
for
on
the
motions
for
fees,
the
attorneys
On June 21,
to
28
U.S.C.
the
7
fees
should
be
borne
and
omissions.
On
July
20,
2010,
Appellants
filed
October
26,
2010,
pursuant
to
Federal
Rule
of
Civil
modify
the
Specifically,
injunctions
three
on
the
grounds
Appellants--Coleman,
of
new
Hydrick,
evidence.
and
Valley
amount
attributable
to
obtaining
the
injunction
against
Valley Fair because the court determined that Valley Fairs optout
form
was
timely
filed,
although
it
was
filed
under
different name.
60(b) decision.
II.
A.
Appellants first challenge the district courts injunctions
enjoining their state court actions.
no
jurisdiction
over
certain
untimely
filed
appeals
of
the
We
i.
[T]he timely filing of a notice of appeal in a civil case
is a jurisdictional requirement.
205, 214 (2007).
When a party
the
exception
the
injunction
appeals
filed
by
injunctions
are
untimely.
Specifically,
Appellants
K&B
state
dismiss
court
their
actions--are
appeals
of
time-barred.
the
Accordingly,
injunctions
for
lack
we
of
jurisdiction.
Further, the appeals of the injunctions filed by Appellants
McKenzie,
Morris
Lawn,
Suell,
Gregory
Hall,
William
Hall,
Calhoun, Allen, Champagne, and Jones are also dismissed for lack
of
jurisdiction.
Although
these
10
Appellants
moved
for
28
U.S.C
1291
confers
on
courts
of
We
appeals
for
the
court
to
do
but
execute
the
judgment.
Carolina Power & Light Co. v. Dynegy Mktg. & Trade, 415 F.3d
354, 358 (4th Cir. 2005) (quoting Catlin v. United States, 324
U.S.
229,
233
(1945)).
[A]n
unresolved
motion
to
assess
not
because
prevent
it
merits.
does
judgment
not
call
on
into
the
merits
question
from
being
decision
final
on
the
Carolina Power & Light Co., 415 F.3d at 358; see Fed.
fees]
then
to
be
proved
judgment
on
at
trial
liability
as
that
an
element
does
not
of
fix
Here,
Norfolk
Southerns
motion
for
attorneys
fees
is
collateral and does not call into question the district courts
decision to enjoin the state court actions.
litigation
of
the
injunctions. 4
See
Budinich
v.
Becton Dickinson & Co., 486 U.S. 196, 198-203 (1988) (holding
that a motion for attorneys fees was collateral and did not
prevent the district courts order from being a final judgment).
Thus, the district courts denial of the motions to reconsider
the
injunctions
attorneys fees.
was
appealable
before
the
determination
of
on
April
19,
2011.
We
review
district
courts
12
In re Am. Honda Motor Co., Inc., 315 F.3d 417, 434 (4th Cir.
2003).
We
conclude
that
the
district
court
did
not
abuse
its
opt
out
of
the
Curtis
class
settlement.
The
record
Hydrick
produced a copy of an opt-out form without a barcode and datestamp to prove receipt by Epiq, and the affidavit submitted by
Schmidts
office
manager
claiming
that
the
opt-out
form
was
not
abuse
its
discretion
in
the
motion
for
Valley
Fairs
dismissed as moot.
challenge
of
the
injunction
is
next
challenge
the
district
courts
entry
addressing
the
merits
of
the
1927
sanctions,
we
of
Prior
must
i.
Federal
Rule
of
Appellate
Procedure
3(c)(1)(A)
requires
Holdings Corp. v. Virtual City Vision, Inc., 650 F.3d 423, 443
(4th Cir. 2011) cert. denied, 132 S. Ct. 575, 181 L. Ed. 2d 425
(2011).
We find that there is no ambiguity or confusion because the
attorneys fees were assessed individually against Schmidt, and
only Schmidt was entitled to bring the appeal of this sanction.
As
such,
we
have
jurisdiction
to
address
the
merits
of
the
issuing
1927.
We
attorneys
review
fees
against
district
Schmidt
courts
under
decision
28
U.S.C.
to
impose
14
Miltier
and
attorneys
such conduct.
fees
reasonably
incurred
because
of
2010),
Norfolk
Southern
contends
that
1927
does
not
to
reach
disagree.
In
Great
our
conclusions
Steaks,
our
most
in
those
recent
cases.
decision
Id.
on
We
this
faith
is
required
for
1927
sanctions
and
affirmed
the
15
Circuit
requires
finding
of
bad
faith
Accordingly,
prior
to
the
in
awarding
attorneys
fees,
the
district
court
stated:
having observed Plaintiffs counsel and judged his
credibility, and having listened to his arguments in
justification for his actions, finds that Plaintiffs
counsels errors and omissions are the result of
inefficiency and lack of competence in dealing with an
5
16
*3
(D.S.C.
June
21,
2010)
(emphasis
added).
In
denying
its decision, the district court did not have the benefit of
Great Steaks.
finding
bad
faith,
it
was
error
to
impose
17
III.
For
the
reasons
stated
above,
we
dismiss
in
part,
and
Additionally,
AFFIRMED IN PART,
DISMISSED IN PART,
AND REVERSED IN PART
18