ALD-353 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 16-1143
___________
AMBROSIO ROUSE,
Appellant
v.
II-VI INCORPORATED;
BRUCE GLICK, individual capacity;
CSABA SZELES, individual capacity;
SAMUEL J. PASQUARELLI, individual capacity;
BEVERLY A. BLOCK, individual capacity;
FRANCIS J. KRAMER, individual capacity;
CARL J. JOHNSON, individual capacity;
JUDGE MARILYN J. HORAN, individual capacity;
JUDGE CHERYL LYNN ALLEN, individual capacity;
JUDGE SALLIE UPDYKE MUNDY, individual capacity;
JUDGE CORREALE F. STEVENS, individual capacity;
JUDGE JOHN L. MUSMANNO, individual capacity
____________________________________
On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. Civil No. 2-13-cv-00065)
District Judge: Honorable Arthur J. Schwab
____________________________________
Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
July 21, 2016
Before: AMBRO, SHWARTZ, and NYGAARD, Circuit Judges
(Opinion filed: July 26, 2016)
_________
OPINION*
_________
PER CURIAM
Ambrosio Rouse appeals pro se from orders of the United States District Court for
the Western District of Pennsylvania, which, inter alia, denied his motion to reopen his
civil action and his petition for a preliminary injunction. We will affirm the District
Court’s judgment.
In January 2013, Rouse filed a complaint in the District Court, seeking to relitigate
several employment discrimination cases that he had brought in Pennsylvania state court
against his former employer, II-VI Incorporated. His federal complaint added civil
conspiracy allegations against the attorneys and state court judges who were involved in
those cases. On August 26, 2013, the District Court granted the defendants’ motions to
dismiss and, in a separate order, denied three then-pending motions that had been filed by
Rouse. After the District Court denied his motion for reconsideration, Rouse appealed.
We summarily affirmed, concluding that Rouse’s claims were foreclosed by claim and
issue preclusion, barred by judicial immunity, and untimely under the applicable statute
of limitations. 1 In re Rouse, C.A. No. 13-4233 (order entered June 10, 2014).
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
1
At the same time, we also denied a mandamus petition in which Rouse sought to
challenge Judge Schwab’s denial of his motion for recusal.
2
Shortly thereafter, Rouse filed in the District Court a motion to reopen the
proceedings. The District Court denied that motion, citing the law of the case doctrine.
Rouse filed “exceptions” to that order. By order entered August 28, 2014, the District
Court denied Rouse’s exceptions. Rouse filed a notice of appeal. We again summarily
affirmed, concluding that the District Court did not abuse its discretion in denying the
motion to reopen as there was no change in controlling law, new evidence, or a need to
correct a clear error of law. Rouse v. II-VI Inc., 609 F. App’x 62, 64 (3d Cir. 2015)
(nonprecedential opinion), cert. denied, 136 S. Ct. 588 (2015). We also denied
Appellees’ motion for fees and costs pursuant to Federal Rule of Appellate Procedure 38.
Rouse also filed a mandamus petition, which we denied. We concluded that Rouse’s
allegations pertained solely to his displeasure with legal rulings and failed to set forth a
reasonable basis for questioning Judge Schwab’s impartiality. In re Rouse, 582 F. App’x
132 (3d Cir. 2014) (nonprecedential opinion).
On December 11, 2015, Rouse filed a motion to reopen, asking the District Court
to consider his complaint and rule on all of his causes of actions. Rouse also filed a
motion for preliminary injunction, alleging that the Pennsylvania Superior Court violated
his rights under 42 U.S.C. § 1981 by denying his request for publication of an opinion of
the court. The District Court denied both motions, holding that they were foreclosed by
claim and issue preclusion, barred by judicial immunity, and were untimely under the
statute of limitations.
Rouse filed a notice of appeal on January 19, 2016, seeking review of (1) the
orders denying Rouse’s motions for a hearing, to extend the time limit for service, for a
3
hearing on the propriety of judicially noticed facts, for recusal, and for reconsideration, as
well as the order dismissing the complaint (“the 2013 orders”), (2) the orders denying
Rouse’s motions for reconsideration and to reopen (the 2014 orders), and (3) the order
denying Rouse’s motions to reopen and for a preliminary injunction entered on December
17, 2015. Appellees filed a filed a joint motion to summarily affirm, which Rouse
opposes. Appellees have also filed a separate motion to award damages and costs under
Federal Rule of Appellate Procedure 38, which Rouse opposes.
We have jurisdiction under 28 U.S.C. § 1291 of Rouse’s appeal of the District
Court’s December 17, 2015, order. However, we lack jurisdiction over Rouse’s appeals
of the 2013 orders and the 2014 orders as the notice of appeal was untimely filed as to
them. Fed. R. App. P. 4(a)(1)(A) (“[i]n a civil case, … the notice of appeal required by
Rule 3 must be filed with the district clerk within 30 days after entry of the judgment or
order appealed from.”). Moreover, no party filed any timely post-judgment motion as
enumerated in Rule 4(a)(4)(A), and, thus, no exception to this rule applies.
Rouse’s December 2015 motions to reopen and for injunctive relief were
predicated on claims previously addressed by this Court. As we have indicated
previously, the law-of-the-case doctrine generally bars reconsideration of issues already
resolved. See Atl. Coast Demolition & Recycling, Inc. v. Bd. of Chosen Freeholders of
Atl. Cnty., 112 F.3d 652, 663 (3d Cir. 1997). The traditional exceptions to the law-of-
the-case doctrine, an intervening change in the controlling law, new evidence that was
not available, or a need to correct a clear error of law, do not apply here. Id. at 663; see
Max’s Seafood Café v. Quinteros, 176 F.3d 669, 673 (3d Cir. 1999). Accordingly, there
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is nothing that calls into doubt our previous determination that the judicial defendants are
immune from liability, Stump v. Sparkman, 435 U.S. 349, 356 (1978); Azubuko v.
Royal, 443 F.3d 302, 303 (3d Cir. 2006) (per curiam), that the claims are foreclosed by
claim and issue preclusion, see Burlington N. R.R. Co. v. Hyundai Merchant Marine Co.,
Ltd., 63 F.3d 1227, 1231 (3d Cir. 1995), and that the claims are untimely under the
applicable statute of limitations, Kach v. Hose, 589 F.3d 626, 634 (3d Cir. 2009).
Turning to Appellees’ motion to award damages and costs, Rule 38 allows, but
does not require, us to award damages and costs to appellees where an appeal is
frivolous. Fed. R. App. P. 38. For purposes of Rule 38, an appeal is frivolous when,
viewed objectively, it is wholly without merit, i.e. when there is no “colorable argument”
in support of the appeal. Mellon Bank Corp. v. First Union Real Estate Equity & Mortg.
Invs., 951 F.2d 1399, 1413 (3d Cir. 1991); Huck v. Dawson, 106 F.3d 45, 52 (3d Cir.
1997). Awards under Rule 38 are based on the merits of the appeal; we do not consider
whether an appellant has acted “out of malice, ignorance, or deceit.” Beam v. Bauer, 383
F.3d 106, 108 (3d Cir. 2004). Rule 38 serves “to make whole a party victimized by
needlessly having to expend money for attorney’s fees to protect a valid judgment from a
baseless attack.” Id.
For the reasons we have just detailed, Rouse’s appeal is objectively frivolous. See
Beam, 383 F.3d at 108-09. Rouse had ample notice that this appeal had no merit. The
District Court in denying Rouse’s motion for leave to appeal in forma pauperis clearly
explained that an appeal was without merit and not taken in good faith. See Kerchner v.
Obama, 612 F.3d 204, 210 (3d Cir. 2010) (“[i]n the past, we cautioned counsel that a
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finding by a District Court that a lawsuit is frivolous should serve as notice to the parties
and their attorney to exercise caution, pause, and devote additional examination to the
legal validity and factual merit of his contentions.”) (internal quotations and citation
omitted). In addition, Rouse failed to heed either the District Court’s conclusion that his
assertions were “nonsense” or our own previous dismissals of his appeals. For the third
time since we affirmed the District Court’s original decision, Rouse comes to this Court
expressing his displeasure with legal rulings but fails to present any colorable argument
for reviewing them. We note, too, that Rouse was put on notice of the possibility of an
award for damages and fees in this case when the Appellees requested sanctions after
Rouse’s previous appeal.
Proponents of sanctions shoulder an obligation to mitigate the harm from frivolous
appeals. Berwick Grain Co. v. Ill. Dep't of Agric., 217 F.3d 502, 506 (7th Cir. 2000)
(citation omitted). Appellees have requested nearly $6,000 in attorney’s fees for
preparing a single motion. Although this motion was not required, Appellees were able
to use our summary action procedure to good effect and will not have to file a brief. See
Local Appellate Rule 27.4(b); Fed. R. App. P. 27(a)(2)(C). Taking into account Rouse’s
status as a pro se litigant, we believe that the requested amount is not just under the
circumstances. 2 However, because we do not wish to reward this frivolous appeal, we
will pare down, rather than eliminate, the Appellees’ damages. See Berwick Grain Co.,
217 F.3d at 506.
2
Rouse does not challenge the amount of damages requested, only the propriety of the
sanction.
6
For the foregoing reasons, we will grant the Appellees’ motion to summarily
affirm the District Court’s order. See 3d Cir. LAR 27.4; I.O.P. Ch. 10.6. We also grant
the motion for Rule 38 damages in the amount of $1,000.00.
7