Shannon Atkinson v. Carolyn Allred

FILED
NOT FOR PUBLICATION MAY 15 2014

MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

PRIMERICA LIFE INSURANCE No. 12-36088
COMPANY,
D.C. No. 3:11-cv-05299-RBL
Plaintiff,

v. MEMORANDUM*

CAROLYN A ALLRED, a Washington
citizen,

Defendant-cross-defendant -
Appellee,

SHANNON L. ATKINSON, a
Washington citizen,

Defendant-cross-claimant -
Appellant.

Appeal from the United States District Court
for the Western District of Washington
Ronald B. Leighton, District Judge, Presiding

Submitted May 13, 2014**
Seattle, Washington

*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Before: O’SCANNLAIN, BERZON, and TALLMAN, Circuit Judges.

Shannon Atkinson appeals the district court’s denial of her motion for relief

from an allegedly premature order to distribute the proceeds of a life insurance

policy and from her motion requesting that Judge Leighton recuse himself. We

dismiss the former claim as moot, and affirm the latter. We also decline Carolyn

Allred’s invitations to impose sanctions or to dismiss this appeal on the basis of

formatting irregularities in Atkinson’s opening brief and alleged omissions in the

excerpts of record.

I. Where a party appeals an interlocutory order subsequently superseded by

a valid final judgment, the matter is moot. See Taylor v. United States, 181 F.3d

1017, 1018, 1022–23 (9th Cir. 1999) (en banc). Under such circumstances,

reversing the initial order “would have no practical consequences.” Dex Media

West, Inc. v. City of Seattle, 696 F.3d 952, 956 n.1 (9th Cir. 2012). Here, the

district court’s initial distribution order has been superseded by a subsequent,

identical order, issued alongside the judgment after a bench trial in which the

district court evaluated all of Atkinson’s claims. Although Atkinson purports to

appeal that final judgment, she does not contest the propriety of the bench trial or

the district court’s conclusions of law. That final judgment thus moots any

controversy concerning the district court’s initial distribution order; even if we

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were to reverse that initial order, it would have no effect on Allred’s entitlement to

the proceeds of the Prudential policy.

II. “‘[T]he judge’s conduct during the proceedings should not, except in the

rarest of circumstances form the sole basis for recusal under [28 U.S.C.]

§ 455(a).’” In re Marshall, 721 F.3d 1032, 1041 (9th Cir. 2013) (some internal

quotation marks omitted) (quoting United States v. Holland, 519 F.3d 909, 914

(9th Cir. 2008)). Here, Judge Leighton’s denial of Atkinson’s motion for relief

from his initial distribution order did not “reveal such a high degree of favoritism

or antagonism as to make fair judgment impossible.” Liteky v. United States, 510

U.S. 540, 555 (1994). He thus did not abuse his discretion in refusing to recuse

himself on the basis of the language in that order.

III. A request for sanctions “must be made in a separately filed motion,” not

an appellee’s answering brief. Lahoti v. Vericheck, Inc., 636 F.3d 501, 511 (9th

Cir. 2011). We deny Allred’s request for sanctions on the ground that it has been

improperly presented to us.

IV. We decline Allred’s invitation to exercise our discretion to summarily

dismiss Atkinson’s appeal on the basis of minor, technical errors in the format of

her brief and alleged omissions in the excerpts of record. Such a dismissal is

inappropriate where, as here, an appellant’s non-compliance with the technical

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rules is relatively insignificant and does not compromise the appellee’s capacity to

respond to the appeal. See Ward v. Circus Circus Casinos, Inc., 473 F.3d 994, 997

(9th Cir. 2007).

AFFIRMED IN PART and DISMISSED IN PART.

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