Opinion
No. 08-1297.
February 4, 2009.
Appeal from the United States District Court for the District of Colorado
Kay Sieverding, David Sieverding, Verona, WI, for Plaintiffs-Appellants.
Ed Sieverding, Tom Sieverding, Verona, WI, for Plaintiffs.
Brett N. Huff, White Steele, David R. Brougham, Hall Evans, Michael T. McConnell, Robert W. Steinmetz, Traci L. Van Pelt, McConnell, Siderius, Fleischner, Houghtaling Craigmile, Christopher P. Beall, Thomas B. Kelley, Levine, Sullivan, Koch Schultz, Denver, CO, Patricia J. Larson, Associate General Counsel American Bar Association, Chicago, IL, Randall W. Klauzer, Klauzer Tremaine, J. Richard Tremaine, McGill Professional Law Corporation, Steamboat Springs, CO, for Defendants-Appellees.
Before BALDOCK, BRORBY, and EBEL, Circuit Judges.
ORDER AND JUDGMENT
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. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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.
Kay and David Sieverding, appearing pro se, appeal from the district court's order denying their motion brought pursuant to Federal Rule of Civil Procedure 60(b)(4). We affirm.
Background
The parties are familiar with the lengthy history of this case. The relevant facts relating to this appeal are set forth in this court's decision in Sieverding v. Colorado Bar Association, 237 Fed.Appx. 355, 357-359 (10th Cir. 2007). In that decision, filed on June 14, 2007, this court affirmed the district court's judgment awarding attorney fees in favor of defendants in the amount of $101,864.82. The attorney fees were awarded as a Rule 11 sanction for the Sieverdings' frivolous and abusive litigation. On June 20, 2008, the Sieverdings filed a Rule 60(b)(4) motion in district court, which sought to void the judgment awarding attorney fees in favor of defendants. The district court denied the motion. The Sieverdings now appeal from that order.
Discussion
We review de novo the district court's denial of a Rule 60(b)(4) motion. See Amoco Oil Co. v. United States Environmental Protection Agency, 231 F.3d 694, 697 (10th Cir. 2000) (explaining that Rule 60(b)(4) denials are reviewed de novo unlike other Rule 60(b) motions, which are reviewed for abuse of discretion).
The Sieverdings first complain that the district court abused its discretion by denying their Rule 60(b)(4) motion without giving any reasons for the denial. In sup-port of their position, they rely on Gladwell v. Scofield, 222 Fed.Appx. 750 (10th Cir.), cert. denied, ___ U.S. ___, 128 S.Ct. 448, 169 L.Ed.2d 313 (2007). In Gladwell, an unpublished, non-binding decision, this court concluded that the district court abused its discretion by failing to give the reasons for its denial of a Rule 60(b) motion. Id. at 752-53. But in that case, this court was reviewing the denial of a general Rule 60(b) motion, not a Rule 60(b)(4) motion. Moreover, in Gladwell, this court was reviewing the district court's decision for abuse of discretion. Id. at 752. As noted above, the abuse of discretion standard is not applicable to a Rule 60(b)(4) motion. See Amoco, 231 F.3d at 697. Because we are reviewing the Rule 60(b)(4) motion de novo, it does not matter that the district court did not give the reasons for its denial.
As for the merits of their Rule 60(b)(4) motion, the Sieverdings argue that the judgment awarding attorney fees is void because the district court failed to follow Rules 11 and 54 of the Federal Rules of Civil Procedure. The Sieverdings assert also that they "were not told the basis for the sanctions." R., Vol. I, Doc. 1069. A party may seek relief under Rule 60(b)(4) if "the judgment is void." "A judgment is void only if the court which rendered it lacked jurisdiction of the subject matter, or of the parties, or acted in a manner inconsistent with due process of law." United States v. Buck, 281 F.3d 1336, 1344 (10th Cir. 2002) (quotation omitted). The Sieverdings did not present any argument in their Rule 60(b)(4) motion that shows they can meet this standard.
Finally, the Sieverdings' statement that they did not know the basis for these sanctions is an outright misrepresentation of the facts of this case. As this court detailed in the order and judgment affirming the award of attorney fees, the magistrate judge issued an order in January 2003 putting the Sieverdings on notice that their claims appeared to be groundless and frivolous in violation of Rule 11 and that they could be subject to sanctions in the form of paying for the defendants' legal fees. See Sieverding, 237 Fed.Appx. at 358-59. At the status conference later that month, the magistrate judge "attempted again to impress upon plaintiffs that their claims were groundless and frivolous." Id. (quotation omitted). In his sixty-page report recommending that the Sieverdings' claims be dismissed and that they be sanctioned, the magistrate judge detailed the Sieverdings' Rule 11 violations and how they had been repeatedly warned and advised that their claims were frivolous and baseless. Id. at 359. The Sieverdings filed objections to the magistrate judge's report and recommendation. The district court considered the objections and then adopted the magistrate judge's recommendation that the Sieverdings be sanctioned. Id. The Sieverdings received ample notice of the basis for these sanctions and had the opportunity to object before these sanctions were imposed.
Conclusion
This appeal is frivolous and represents another example of the Sieverdings' abusive litigation practices. Including this appeal, the Sieverdings have filed eleven appeals and two requests for mandamus relief arising out of this district court case. There is nothing left to be reviewed from this district court case. We caution the Sieverdings that if they file another appeal or special proceeding arising out of this district court case then we will seek to impose sanctions against them in the form of appellate filing restrictions. See Winslow v. Hunter (In re Winslow), 17 F.3d 314, 315-16 (10th Cir. 1994) (imposing filing restrictions on plaintiffs with a history of abusive and repetitive filling in this court).
The judgement of the district court is AFFIRMED. The sieverdings' motion to supplement the record and to remand for an evidentiary hearing is DENIED.