Joseph Dzwonkowski, Sr. v. Joseph Dzwonkowski, Jr.

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 08-13118 OCT 31, 2008
Non-Argument Calendar THOMAS K. KAHN
________________________ CLERK

D. C. Docket No. 05-00544-CV-KD-C

JOSEPH DZWONKOWSKI, SR.,

Plaintiff-Appellant,

versus

JOSEPH DZWONKOWSKI, JR.,
SONITROL OF MOBILE, INC.,
ROBERT DZWONKOWSKI,
ALAB C. CHRISTIAN,
ERIN DZWONKOWSKI, et al.,

Defendants-Appellees.
________________________

Appeal from the United States District Court
for the Southern District of Alabama
_________________________

(October 31, 2008)

Before TJOFLAT, BLACK and MARCUS, Circuit Judges.

PER CURIAM:
Joseph Dzwonkowski, Sr. (“Joe Sr.”) appeals the district court’s entry of

final judgment in favor of his sons, Robert Dzwonkowski and Joseph

Dzwonkowski, Jr. (“the Sons”), in this intrafamily dispute over the ownership and

control of Sonitrol of Mobile, Inc., a closely held corporation. Because we

conclude that we lack jurisdiction to review Joe Sr.’s challenge to the district

court’s orders dismissing his complaint, we address on the merits his claims that

the district court abused its discretion in: (1) directing Joe Sr. to pay sanctions and

attorneys’ fees, and (2) striking Joe Sr.’s notice of bankruptcy case filing. After

thorough review, we dismiss the appeal in part, and affirm it in part.

Where it appears that we may lack jurisdiction, we must review our

jurisdiction in the first instance. Robinson v. Tanner, 798 F.2d 1378, 1379 (11th

Cir. 1986). We review jurisdictional issues de novo. AT&T Mobility, L.L.C. v.

Nat’l Ass’n for Stock Car Auto Racing, Inc., 494 F.3d 1356, 1360 (11th Cir.

2007). We review a district court’s order awarding attorneys’ fees and sanctions

for abuse of discretion. Amlong & Amlong, P.A. v. Denny’s, Inc., 500 F.3d 1230,

1238 (11th Cir. 2007); Taylor v. City of Fort Lauderdale, 810 F.2d 1551, 1556

2
(11th Cir. 1987). We also review an order striking pleadings for abuse of

discretion. McCorstin v. U.S. Dep’t of Labor, 630 F.2d 242, 244 (5th Cir. 1980).1

As an initial matter, we must dismiss Joe Sr.’s appeal of the district court’s

orders dismissing his complaint. “It is by now abundantly clear that a timely and

properly filed notice of appeal is a mandatory prerequisite to appellate

jurisdiction.” Holloman v. Mail-Well Corp., 443 F.3d 832, 844 (11th Cir. 2006).

Under Federal Rule of Appellate Procedure 4(a)(1)(A), an appellant must file a

notice of appeal “with the district clerk within 30 days after the judgment or order

appealed from is entered.” Here, the district court’s order dismissing Joe Sr.’s

complaint was issued in July 2006, and reconsideration was denied in August

2006, but Joe Sr.’s notice of appeal -- which did not even make reference to either

of these orders -- was not filed until May 2008, well over 30 days after the orders

were issued. Thus, to the extent Joe Sr. is appealing the 2006 orders, his appeal is

untimely and we lack jurisdiction to review them.2

1
Former Fifth Circuit decisions, issued before close of business on September 30, 1981,
bind this Court. Bonner v. City of Prichard, 661 F.2d 1206, 1209-10 (11th Cir. 1981) (en banc).
2
While Federal Rule of Appellate Procedure 4(a)(4)(A) extends the time for appealing an
order where a party has filed a motion for “attorney’s fees under Rule 54 if the district court
extends the time to appeal under Rule 58,” (emphasis added), the district court did not extend the
time to appeal here. Moreover, Local Rule 54.3(e) of the Southern District of Alabama expressly
provides that “[p]endency of a motion [for attorneys’ fees] filed under this rule does not extend
the time for appealing from . . . the judgment giving rise to the claim for attorneys’ fees.”

3
Turning to the merits of the remaining appeal, we reject Joe Sr.’s claim that

the district court abused its discretion in directing Joe Sr. to pay sanctions and

attorneys’ fees. Joe Sr. asserts that the award of fees and sanctions “should have

been premised on a proper determination of [Joe Sr.’s] Sonitrol stock ownership

claims.” However, as we conclude above, the merits of the underlying action are

not before us. And even more important to the attorneys’ fees and sanctions issue,

Joe Sr. has failed to show any error in the bases of the district court’s award --

that, among other things, the Sons were “prevailing parties,” Joe Sr.’s actions

during the litigation were “dilatory” and “unduly prejudiced” the Sons, and Joe

Sr.’s filings were “frivolous,” “meritless,” and “tantamount to bad faith.” In short,

Joe Sr. has made no showing whatsoever as to why the award of attorneys’ fees or

the award of sanctions was an abuse of discretion.3

We further conclude that the district court did not abuse its discretion in

striking Joe Sr.’s “Notice of Bankruptcy Case Filing” of Sonitrol of Mobile, Inc.

Although we are unpersuaded by the Sons’ claim on appeal that this order is not

an appealable final judgment, we nevertheless reject Joe Sr.’s challenge to the

3
In addition, we lack jurisdiction over any appeal in the name of Joe Sr.’s counsel, Willie
James Ellison, from the district court’s order directing Joe Sr. and Ellison to pay sanctions and
attorneys’ fees. The notice of appeal filed in this case provided only that Joe Sr. appealed from
the district court’s order. Because “[t]he failure to name a party in a notice of appeal . . .
constitutes a failure of that party to appeal,” Holloman, 443 F.3d at 844 (quotations omitted),
Ellison has failed to perfect any appeal he may have here.

4
district court’s striking of a notice apparently filed by Joe Sr. on behalf of Sonitrol

without the consent of any Sonitrol representatives, and in violation of an order

from the United States Bankruptcy Court for the Southern District of Alabama.

Indeed, the district court has broad inherent powers, as well as authority under

Federal Rule of Civil Procedure 12(f) to “order stricken from any pleading . . . any

redundant, immaterial, impertinent, or scandalous matter.” Joe Sr. has not made

any showing as to how the district court abused its discretion in so doing.

DISMISSED in part, AFFIRMED in part.