Summary
holding that Rule 60(b) does not provide a basis pursuant to which the July 11, 2000 order might be vacated because the court had jurisdiction to issue the order and, therefore, the order cannot be void
Summary of this case from Dipaolo v. MoranOpinion
CIVIL ACTION NO. 99-5974.
June 26, 2003
MEMORANDUM AND ORDER
Presently before the court is plaintiff Gregory DiPaolo's motion pursuant to Federal Rule of Civil Procedure 60(b), seeking relief from this court's order of July 11, 2000, in which the court held, by default, that plaintiff and his attorney, Brian Puricelli, Esquire, were liable for sanctions. For the reasons that follow, plaintiff's motion will be denied.
Puricelli joins plaintiff in filing this motion.
Facts
For the long and complicated facts of this case, the court refers the reader to its previous opinion of June 26, 2003, wherein said facts are detailed.
Discussion
In the instant motion, plaintiff argues that the court's order of July 11, 2000, granting the Morris defendants' "supplemental motion" for Rule 11 and § 1927 sanctions, is void and therefore must be vacated pursuant to Rule 60(b) of the Federal Rules of Civil Procedure. Specifically, he contends that the motion was not properly filed with the court because 1) there is no authority under the rules for such supplemental motions for sanctions, 2) defendants brought a § 1927 claim within their Rule 11 motion, and 3) defendants and the court allegedly failed to comply with Rule 11's safe-harbor provision. These arguments, however, do not persuade the court that defendants' motion was improperly before the court. For this reason, plaintiff s motion will be denied.
Federal Rule of Civil Procedure 60(b) reads as follows:
On motion and upon such terms as are just, the court may relieve a party or a party's legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (6) any other reason justifying relief from the operation of the judgment.
Fed.R.Civ.P. 60(b) (WEST 2003).
Although plaintiff never specifically states which subsection of this rule forms the basis of his motion, he only presents argument with respect to subsection four, which allows relief from final judgments that are void. This argument fails initially because my order of July 11, 2000 was not a judgment, nor was it final. As our Court of Appeals has held, "the general rule in this circuit is that if the award of attorneys' fees is not reduced to a definite amount, that award is not final." Becton Dickinson Co. v. District 65, United Auto., Aerospace and Agr. Implement Workers of America, AFL-CIO, 799 F.2d 57, 61 (3d Cir. 1986) (citing May v. Cooperman, 780 F.2d 240, 243 n. 1 253 (3d Cir. 1985) and Bandai America, Inc. v. Bally Midway Mfg. Co., 775 F.2d 70, 75 (3d Cir. 1985), cert. denied, ___ U.S. ___, 106 S.Ct. 1265 (1986)). Because the July 11, 2000 order did not contain a final figure regarding attorneys' fees, defendants were not granted any relief and, therefore, the order cannot be a final order or judgment.
Moreover, even if it was interpreted as a final judgment, it is clearly established that a judgement is void only if "the court that rendered it lacked jurisdiction of the subject matter or the parties or entered `a decree which is not within the powers granted to it by the law.'" Marshall v. Board of Education, Bergenfield, New Jersey, 575 F.2d 417, 422 (3d Cir. 1978) (quoting United States v. Walker, 109 U.S. 258, 265-67 (1883)); see Willy v. Coastal Corp., 503 U.S. 131, 138 (1992) (citing Cooter Gell v. Hartmarx Corp., 496 U.S. 384 (1990) for the proposition that "[i]t is well established that a federal court may consider collateral issues after an action is no longer pending. . . . [An] imposition of a Rule 11 sanction is not a judgment on the merits of an action. Rather, it requires a determination of a collateral issue. . . . It therefore does not raise the issue for a district court adjudicating the merits of a `case or controversy' over which it lacks jurisdiction."). It is equally clear that "a judgment is not void and is therefore not within the ambit of 60(b)(4) simply because it is erroneous, or is based upon precedent which is later deemed incorrect or unconstitutional." Id. (citing Chicot County Drainage District v. Baxter State Bank, 308 U.S. 371, 374-78 (1940), Lubben v. Selective Service System Local Board No. 27, 453 F.2d 645, 649-50 (1st Cir. 1972) and Elgin National Watch Co. v. Barrett, 213 F.2d 776, 779 (5th Cir. 1954)).
In the instant case, because the July 11, 2000 order is not void, plaintiff's motion must be denied. As the Willy case makes plain, even if all of plaintiff's allegations are true, this court nonetheless had jurisdiction over the subject matter and the parties of this case when it granted defendants' motion. Plaintiff advances no other reason to suggest lack of jurisdiction.
Alternatively, regardless of plaintiff's procedural basis for seeking the vacating of the July 11, 2000 order, the merits of plaintiff s contentions are not persuasive. Regarding plaintiff's first argument, defendants' motion was not an amendment to their initial Rule 11 motion, but rather an entirely new motion based on plaintiff's amended complaint. The original motion for sanctions dealt with plaintiff's initial complaint. After oral argument on motions to dismiss, the court directed plaintiff to file an amended complaint. The supplemental motion for sanctions addressed this amended complaint. As such, defendants were not required to seek leave from the court to file the supplemental motion, and plaintiff was obligated to respond to the motion or suffer a default. The court also notes that the argument is waived because plaintiff did not raise it in a response to the sanctions motion, as I have found that he was, in fact, served with a copy of the motion, or in his motion for reconsideration of the July 11, 2000 order. See Transcript of Sept. 14, 2000 Hearing at 66; Pl. Mot. and Brief for Reconsideration (Doc. #69).
As regards his second contention, although the request for Rule 11 sanctions must be by separate motion from the merits of the case, it would serve no purpose to require Rule 11 and § 1927 motions to be filed separately. Such a requirement would only result in a multiplicity of pleadings. Thus, any error that exists is harmless. Moreover, as with the former argument, plaintiff has waived any challenge to defendants' motion by failing to raise these objections earlier.
Finally, regarding his third argument, I see nothing in Rule 11 and plaintiff has pointed to no authority which requires that the court provide safe harbor notice to plaintiff; rather that duty falls to defendants. Additionally, this is the first instance in which plaintiff has argued that defendants failed to fulfill this obligation. Thus, as with his other contentions, plaintiff has waived this challenge to defendants' motion. See Rector v. Approved Federal Savings Bank, 265 F.3d 248, 253 (4th Cir. 2001) ("[W]e hold that the 21-day safe harbor provision of Rule 11 is not jurisdictional and may be waived.").
In sum, the court had jurisdiction to issue its July 11, 2000 order. Thus, the order was not void, and Federal Rule of Civil Procedure 60(b) can not apply to the instant case. Moreover, the merits of plaintiff's claims are unpersuasive based on the evidence currently before the court.
Conclusion
For the reasons stated above, plaintiff's motion will be denied.
Order
And now, this _____ day of June, 2003, upon consideration of the Federal Rule of Civil Procedure 60(b) Motion jointly submitted by plaintiff Gregory DiPaolo and his counsel Brian Puricelli, Esquire (Doc. #138), defendants Neil A. Morris and Neil A. Morris Associates, P.C.'s response thereto (Doc. #140), and plaintiff's supplemental filing (Doc. #141), it is hereby ORDERED that the motion is DENIED.