Commercial Litigation and Arbitration

Sanctions — Failure to File Notice of Appeal in Counsel’s Name Precludes Appellate Review of Sanction Imposed on Counsel — Notice of Appeal in Party’s Name Inadequate to Permit Review

Kleehammer v. Monroe Cnty., 2014 U.S. App. LEXIS 22110 (2d Cir. Nov. 21, 2014):

Appellant Stephanie Kleehammer, proceeding pro se, appeals from (1) the district court's September 8, 2010 order dismissing in part her claims of employment discrimination; (2) the November 27, 2012 order granting summary judgment for defendants on her remaining claims; and (3) the March 20, 2013 order sanctioning counsel. We assume the parties' familiarity with the underlying facts, procedural history of the case, and issues on appeal.

I. Jurisdiction

We have an independent obligation to consider the scope of our jurisdiction. See Jennifer Matthew Nursing & Rehab. Ctr. v. U.S. Dep't of Health & Human Servs., 607 F.3d 951, 955 (2d Cir. 2010). "[T]he timely filing of a notice of [*2]  appeal in a civil case is a jurisdictional requirement." Bowles v. Russell, 551 U.S. 205, 214 (2007). In most civil cases, a party must file a notice of appeal "with the district court clerk within 30 days after entry of the judgment or order appealed from." Fed. R. App. P. 4(a)(1)(A). Because the district court entered judgment on April 1, 2013, Kleehammer had until May 1, 2013 to file a notice of appeal.

On April 29, 2013, Kleehammer filed a timely notice of appeal, which expressed an intent to appeal from the district court's November 2012 order,1 but did not mention the district court's September 2010 order of dismissal. Federal Rule of Appellate Procedure 3(c)(1) requires that a notice of appeal must "designate the judgment, order, or part thereof being appealed." Fed. R. App. P. 3(c)(1)(B). The dictates of Rule 3 are jurisdictional in nature. Gonzalez v. Thaler, 132 S. Ct. 641, 652 (2012). Accordingly, "our jurisdiction is limited by the wording of the notice," which does not raise the September 2010 order for our review. See New Phone Co. v. City of New York, 498 F.3d 127, 130-31 (2d Cir. 2007) (holding that notice of appeal's failure to mention first of two district court orders barred consideration of claims decided in earlier order). Although Kleehammer filed an amended notice of appeal on May 3, 2013, which did express an intent to appeal from the September 2010 order, that filing is legally inoperative because it was untimely [*3]  filed. See M.E.S., Inc. v. Snell, 712 F.3d 666, 668 (2d Cir. 13) (disregarding amended notice of appeal belatedly filed under analogous circumstances).

1   Although the notice of appeal filed on April 29, 2013 explicitly refers only to the orders "dated November 27, 2013 and March 20, 2013, dismissing the Complaint," Special App'x at 120, this notice clearly manifests Kleehammer's intention to appeal from the district court's order granting defendants' motion for summary judgment on November 27, 2012, as there is no order dated November 27, 2013. See Becker v. Montgomery, 532 U.S. 757, 767-68 (2001) ("[I]mperfections in noticing an appeal should not be fatal where no genuine doubt exists about who is appealing, from what judgment, to which appellate court."); New Phone Co. v. City of New York, 498 F.3d 127, 131 (2d Cir. 2007) ("Our jurisdiction, however, depends on whether the intent to appeal from that decision is clear on the face of, or can be inferred from, the notices of appeal.").

Kleehammer's timely filed notice of appeal also expressed an intent to appeal from the Rule 11 sanction imposed on counsel. Because the district court did not sanction Kleehammer, there is no case or controversy with respect to her. "Where an award of sanctions runs only against the attorney, the attorney is the party in interest and must appeal in his or her name." DeLuca v. Long Island Lighting Co., 862 F.2d 427, 429-30 (2d Cir. 1988) (holding that the court lacked jurisdiction to [*4]  consider an award of sanctions entered against attorney because the notice of appeal did not provide that attorney was appealing in his own name). Although counsel could have separately appealed from the imposition of the Rule 11 sanction, she did not do so, and neither notice of appeal suggested her intent to appeal in her own name. Accordingly, we have jurisdiction to consider only Kleehammer's appeal from the district court's November 2012 order granting summary judgment for the defendants.

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