Commercial Litigation and Arbitration

Failure to Identify Sanctioned Counsel as Appellant Forgiven Where Intent of Appeal Obvious and No Prejudice Shown — Aspects of Appeal Waived for Failure to Develop Arguments in Brief

Olson v. Bank of America, N.A., 2013 U.S. App. LEXIS 13289 (8th Cir. June 28, 2013):

Attorney William Butler appeals from the district court's order imposing sanctions against him under Federal Rule of Civil Procedure 11. We affirm.

Footnote 2. Although the Appellees make no mention of it, we note that neither the caption nor the body of the notice of appeal names Butler as a party to the appeal. See Fed. R. App. P. 3(c). Because the intent of the appeal is obvious and no prejudice has been shown, we will deem the appeal to be properly before us. See, e.g., In re Nat'l Warranty Ins. Risk Retention Grp., 384 F.3d 959, 964 (8th Cir. 2004).

Acting on behalf of twelve homeowners, Butler filed suit against Bank of America, N.A.; BAC Home Loans Servicing, LP; Mortgage Electronic Registration Systems, Inc.; MERSCORP, Inc.; and Federal National Mortgage Association (collectively, the Lenders/Servicers) for unlawfully foreclosing or attempting to foreclose on their home mortgages and against Peterson, Fram & Bergman, P.A. for assisting with the foreclosures. This was one of more than thirty such cases filed by Butler. The Lenders/Servicers removed the action and filed a motion to dismiss the complaint on January 3, 2012. On March 2, 2012, the Lenders/Servicers served Butler and the homeowners with a letter and a motion for sanctions, notifying them that unless they dismissed their frivolous complaint with prejudice, the Lenders/Servicers would file the attached motion for sanctions under Federal Rule of Civil Procedure 11 and 28 U.S.C. § 1987. Butler did not move to dismiss the complaint, but instead actively litigated it until it was dismissed on April 19, 2012, for failure to state a claim upon which relief could be granted. In an opinion filed on (June 28, 2013), we affirmed the district court's order dismissing the homeowners' complaint. See Olson v. Bank of Am., N.A., No.12-2023, slip op. (8th Cir. June 28, 2013).

On May 17, 2012, the Lenders/Servicers filed a motion for sanctions against Butler and the homeowners under Rule 11 and § 1987. In its order imposing sanctions against Butler only, the district court found that Butler's conduct in this case was "certainly egregious," D. Ct. Order of June 20, 2012, at 3, but noted that it was hesitant to impose sanctions because Butler had already been sanctioned repeatedly for his conduct in similar cases, see id. at 2-3. Nevertheless, given Butler's failure to "take responsibility for his multiple and vexatious filings that are in clear violation of Rule 11," id. at 4, and his "attempts to shift the blame for his conduct whenever possible[,]" id., the district court determined that sanctions in the amount of $10,000 against Butler were appropriate under Rule 11, id. at 6. The district court concluded that "[t]his amount is limited to what might suffice to deter Mr. Butler from continuing to bring such frivolous claims, especially when combined with the sanctions ordered by other Judges in this District." Id.

As an initial matter, Butler has waived his appeal of the district court's denial of his request to file a motion to reconsider the order imposing sanctions "because the issue was not developed in his briefs as required by Federal Rule of Appellate Procedure 28(a)(9)(A)." Rotskoff v. Cooley, 438 F.3d 852, 854 (8th Cir. 2006). "It is thus considered abandoned for failure 'to provide any reasons or arguments' for his contentions." Id. at 854-55 (quoting United States v. Zavala, 427 F.3d 562, 564-65 n.1 (8th Cir. 2005)).

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