Commercial Litigation and Arbitration

Order Stating that Counsel’s Conduct Warranted Rule 11 Sanctions but Expressly Declining to Impose Any Is Not Appealable

Omega Claims Solutions, Inc. v. N’Site Solutions, Inc., 2011 U.S. App. LEXIS 23282 (5th Cir. Nov. 18, 2011):

At the end of that order [confirming an arbitration award], the district court stated about Omega's counsel, Scott Rothenberg:

As a final matter, and for the reasons discussed above, Omega has forced N'Site to pursue a costly and time-consuming course to enforce the arbitration award made on December 19, 2008. The Court believes that Omega's counsel, Scott Rothenberg, spearheaded a campaign of misinformation and delay in a Quixotic quest to vacate an arbitration award that was, as this Court has found, decided thoughtfully, fairly, and well within the confines of the AAA Rules. Accordingly, the Court finds that Mr. Rothenberg's actions in this case are sufficient to warrant the sua sponte imposition of Rule 11 sanctions. However, in light of the Court's decision to award costs and attorneys' fees to [N'Site] for the reasons stated above, the Court will exercise its discretion not to order any sanctions at this time for Omega's frivolous claims.

Omega Claims Solutions, Inc. v. N'Site Solutions, Inc., No. 4:09-CV-1102, slip op. at 12 (S.D. Tex. Dec. 17, 2009). Rothenberg did not [immediately] appeal that order. On March 29, 2011, N'Site timely filed its notice of appeal of two later orders by the district court. Pursuant to Federal Rule of Appellate Procedure 4(a)(3), Rothenberg filed his notice of appeal, appealing the December 17, 2009 order. N'Site later voluntarily dismissed its appeal, leaving only Rothenberg's appeal of the December 17, 2009 order pending.

N'Site argues that the December 17, 2009 order is not appealable because, it contends, the district court issued no sanction. Although not stylized as such in its brief, what N'Site is arguing is that Rothenberg lacks standing because Rothenberg has suffered no injury-in-fact. See K.P. v. LeBlanc, 627 F.3d 115, 122 (5th Cir. 2010). Although in Walker v. City of Mesquite, Tex., 129 F.3d 831 (5th Cir. 1997), we held that damage to an attorney's professional reputation because of a sanction is sufficient to confer standing, see id. at 832-33, here, there was no sanction. The district court expressly stated it was "exercis[ing] its discretion not to order any sanctions at this time." Omega Claims, No. 4:09-CV-1102, slip op. at 12. The mere conclusion that Rothenberg's actions were "sufficient to warrant the sua sponte imposition of Rule 11 sanctions," id., is neither sufficiently concrete and particularized nor actual and imminent to confer standing.

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