OR v. Gerri Hutner

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________

No. 11-4214
_____________

OR, a Student

v.

GERRI HUTNER; RICK CAVE; ROBBY VARGHESE; LISA CATALANO; KATHY
MITCHEL; THOMAS A. SMITH; VICTORIA KNIEWEL; DONNA GIBBS-NINI;
VICTORIA KNIEWEL, School Superintendent; ARTHUR DOWNS, Principal;
CHARLES RUDNICK, Principal; DENNIS LEPOLD, Principal; MICHAEL
ZAPICCHI, Principal; WEST WINDSOR PLAINSBORO SCHOOL DISTRICT

OR and *ROTIMI A. OWOH, Esq.,
Appellants

*(Pursuant to Rule 12(a) of the Fed. R. App. P.)
____________

No. 12-1462
_____________

OR, a Student

v.

GERRI HUTNER; RICK CAVE; ROBBY VARGHESE; LISA CATALANO; KATHY
MITCHEL; THOMAS A. SMITH; VICTORIA KNIEWEL; DONNA GIBBS-NINI;
VICTORIA KNIEWEL, School Superintendent; ARTHUR DOWNS, Principal;
CHARLES RUDNICK, Principal; DENNIS LEPOLD, Principal; MICHAEL
ZAPICCHI, Principal; WEST WINDSOR PLAINSBORO SCHOOL DISTRICT

OR and *ROTIMI A. OWOH, Esq.,
Appellants

*(Pursuant to Rule 12(a) of the Fed. R. App. P.)
______________
 APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT
OF NEW JERSEY
(D.C. Civ. Action No. 3:10-CV-01711)
District Judge: Honorable Anne E. Thompson
______________

Submitted Under Third Circuit LAR 34.1(a)
December 10, 2012
______________

Before: GREENAWAY, JR., NYGAARD, VAN ANTWERPEN, Circuit Judges.

(Opinion Filed: February 8, 2013 )

______________

OPINION
______________

GREENAWAY, JR., Circuit Judge.

Appellant O.R. (“O.R.”) and his attorney, Rotimi A. Owoh (“Mr. Owoh”),

(collectively “Appellants”), appeal the October 13, 2011 and January 27, 2012 Orders of

the District Court, denying various post-judgment motions and imposing a monetary

sanction against Mr. Owoh under Federal Rule of Civil Procedure 11.1 For the following

1
Appellants also purport to appeal the December 8, 2011 Order of the District
Court denying their motion for reconsideration filed under Fed. R. Civ. P. 59(e) and their
request to stay the judgment. However, Appellants never properly filed a notice of
appeal related to the December 8, 2011 Order. On November 14, 2011, Appellants filed
a timely notice of appeal of the October 13, 2011 Order denying their motion to set aside
the judgment. Because a motion for reconsideration of the October 13, 2011 Order was
pending in the District Court, we entered an order pursuant to Fed. R. App. P. 4(a)(4)
staying the appeal pending the District Court‟s consideration of the motion. The District
Court entered an Order on December 8, 2011, denying the motion for reconsideration,
and we lifted the stay of the appeal. Appellants filed another notice of appeal on
2
reasons, we will affirm the District Court‟s October 13, 2011 Order, and will affirm in

part and vacate in part the Court‟s January 27, 2012 Order.

I. BACKGROUND

Because we write primarily for the benefit of the parties, we recount only the

essential facts.

In 2004, O.R., then a minor, was found in possession of a knife at school and was

disciplined. He subsequently initiated several state court actions against Appellees,

challenging his suspension and seeking the production of school records. In March 2010,

O.R. filed a complaint in federal district court, alleging that Appellees‟ conduct violated

February 14, 2012, seeking review of the October 13, 2011, December 8, 2011, and
January 27, 2012 Orders. However, this notice of appeal is untimely as related to the
December 8, 2011 Order because it was not filed within the time period set out in Fed. R.
App. P. 4(a)(4)(B)(ii). Under this rule, Appellants were required to file a notice of appeal
or amended notice of appeal within 30 days of the District Court‟s December 8, 2011
Order denying their motion for reconsideration. Fed. R. App. P. 4(a)(1)(A),
4(a)(4)(B)(ii). Appellants did not file a notice of appeal of the December 8, 2011 Order
within this timeframe. Appellants argue that because they included the December 8,
2011 Order in their “concise summary of the case” filed with us on December 26, 2011,
we should treat the appeal as timely filed. We cannot.
Federal Rules of Appellate Procedure 3(a)(1) and 4(a)(1) require that the notice of
appeal be filed with the district court clerk, and 3(e) requires that the appellant pay the
district clerk the filing fee. The “concise summary of the case” was never filed with the
district court clerk and no filing fee was paid. Although Fed. R. App. P. 4(d) provides
that a notice of appeal improperly filed with the court of appeals should be transferred to
the district court and be treated as filed on the day received in the court of appeals, we
note that the “concise summary of the case” is not a notice of appeal, and was not treated
as such. We therefore have no jurisdiction over the appeal of the December 8, 2011
Order. See Torres v. Oakland Scavenger Co., 487 U.S. 312, 317 (1988) (noting that a
court “may not waive the jurisdictional requirements of [Fed. R. App. P.] 3 and 4 . . . if it
finds that they have not been met”); see also Becker v. Montgomery, 532 U.S. 757, 765-
3
his constitutional right of access to the courts. The District Court dismissed O.R.‟s

complaint and denied several motions to amend and motions seeking reconsideration.

The District Court also, upon Appellees‟ motion, sanctioned Mr. Owoh under Federal

Rule of Civil Procedure 11, ordering him to pay Appellees‟ counsel attorney‟s fees in the

amount of $4,500. We summarily affirmed the District Court‟s judgment on July 27,

2011, and additionally ordered that the costs of the appeal be taxed against Appellant.

Despite our affirming the imposition of the sanction, on August 18, 2011, Mr.

Owoh filed a Rule 60 motion to set aside the judgment, arguing that the amount of the

sanction was obtained through inaccurate information or fraud. Specifically, Mr. Owoh

contested the accuracy of the billing invoices which Appellees‟ counsel filed in support

of Appellees‟ sanctions motion. Mr. Owoh‟s motion also sought additional discovery

related to the payment of Appellees‟ counsel‟s legal bills.

The District Court denied this motion in an Order dated October 13, 2011. Mr.

Owoh then filed a motion for reconsideration and for a stay of the judgment, which the

District Court denied on December 8, 2011. On December 20, 2011, Mr. Owoh filed yet

another motion for a stay of the judgment and for the court to conduct a factual finding as

to the amount of attorney‟s fees actually paid by Appellees‟ insurance carrier. Mr. Owoh

argued that Open Public Records Act (“OPRA”) proceedings pending in state court

66 (2001) (affirming that the content and timing requirements of the notice of appeal are
jurisdictional in nature).
4
would allow him to show that the amounts that Appellees‟ insurance carrier claimed to

have paid Appellees‟ attorneys were inaccurate.

In an Order dated January 27, 2012, the District Court denied Mr. Owoh‟s motion,

holding that the information sought by Mr. Owoh in the OPRA proceedings would have

been immaterial to the Court‟s imposition of monetary sanctions against him. The

District Court explained, as it had in several previous Orders, that it imposed the sanction

against Mr. Owoh to deter further frivolous litigation conduct, not to reward or

compensate Defendants‟ counsel. Noting Mr. Owoh‟s continued frivolous filings with

the Court, the District Court imposed an additional sanction against Mr. Owoh. The

District Court explained that “[e]ven in the face of the initial sanctions order, Mr. Owoh‟s

actions have expanded these legal proceedings beyond their proper scope, wasting

Defendants‟ time as well as valuable judicial resources that could have been devoted to

legitimate cases pending with the Court,” and determined that an additional sanction of

$4,500, payable to the Court, would be appropriate to deter future misconduct. (App.

35.)

Appellants timely appeal the October 13, 2011 and January 27, 2012 Orders.

II. JURISDICTION

The District Court had jurisdiction under 28 U.S.C. §§ 1331 and 1343. We have

jurisdiction under 28 U.S.C. § 1291.

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 III. ANALYSIS

As an initial matter, we note that Mr. Owoh raises several issues for the first time

on appeal that were not presented to the District Court. The majority of his opening brief

is devoted to a discussion of “electronic metadata” and student disciplinary reports, to

which he claims to have requested access in his motion for a stay and for additional

factual finding, filed on December 20, 2011. Mr. Owoh‟s motions to the District Court,

however, focused almost exclusively on the veracity of the attorney‟s bills submitted by

Appellees‟ counsel. In his submissions to the District Court, Mr. Owoh made, at most,

“fleeting reference[s]” to the disciplinary reports, and did not “unequivocally put [his]

position before the trial court at a point and in a manner that permit[ted] the court to

consider its merits.” In re Ins. Brokerage Antitrust Litig., 579 F.3d 241, 262 (3d Cir.

2009) (internal quotation marks omitted).2 Because this issue was not properly presented

to the District Court, we will not consider Mr. Owoh‟s arguments relating to the student

disciplinary reports on appeal. See id. at 261 (“Absent exceptional circumstances, this

Court will not consider issues raised for the first time on appeal.” (internal quotation

marks omitted)).

2
In fact, Mr. Owoh‟s briefs on appeal read as if plucked from an entirely different
litigation than the one from which he now appeals. The majority of his arguments have
no basis in the submissions he made to the District Court, or in the District Court‟s
Orders. While Mr. Owoh now purports to attack the final judgment on the basis that the
motion to dismiss was improperly granted, he made no such argument before the District
Court. Until this appeal, his exclusive concern was relieving himself of the obligation to
pay the sanction that the District Court imposed.
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 Because we will not consider Mr. Owoh‟s arguments relating to the student

disciplinary reports, only two issues remain on appeal: (1) whether the District Court

erred in denying the motions for additional discovery; and (2) whether it erred in

imposing an additional sanction on Mr. Owoh.

We review a district court‟s denial of a discovery request for abuse of discretion.

See Gallas v. Supreme Ct. of Pa., 211 F.3d 760, 778 (3d Cir. 2000). The District Court

did not abuse its discretion in denying Mr. Owoh‟s motions for discovery and fact finding

relating to Appellees‟ attorney‟s fees. Mr. Owoh premised his motions on an allegation

that the sanction imposed on him was procured by fraud. He also claimed that neither

Appellees nor their insurance carrier paid the invoices that were submitted by counsel in

support of their sanctions motion. However, this information would have been

immaterial to the District Court‟s imposition of the sanction against him. As the District

Court has “continually noted,” it “awarded sanctions not to reward any conduct on the

part of the Defendants or Defense counsel, but rather to deter further frivolous litigation

conduct by Plaintiff and Plaintiff‟s counsel.” (App. 12, 33.) Mr. Owoh‟s discovery

requests are utterly meritless and the District Court did not abuse its discretion in denying

them.

We generally review a district court‟s decision to impose sanctions for abuse of

discretion. See Adams v. Ford Motor Co., 653 F.3d 299, 304 (3d Cir. 2011). However,

“[w]hen the procedure the court uses to impose sanctions raises due process issues of fair

notice and the right to be heard, the standard of review is plenary.” Id. (citing Martin v.
7
Brown, 63 F.3d 1252, 1262 (3d Cir. 1995)). Because the District Court did not comply

with the notice requirements of Rule 11 in imposing the additional sanction on Mr. Owoh

in its January 27, 2012 Order, we must vacate the additional monetary sanction.

Rule 11 specifies that the district court must provide “notice and a reasonable

opportunity to respond” before imposing sanctions on an attorney. Fed. R. Civ. P.

11(c)(1);3 see also Martin, 63 F.3d at 1262 (“The Due Process Clause of the Fifth

Amendment requires a federal court to provide notice and an opportunity to be heard

before sanctions are imposed on a litigant or attorney.”). We have held that “the party

sought to be sanctioned is entitled to particularized notice including, at a minimum, 1) the

fact that Rule 11 sanctions are under consideration, 2) the reasons why sanctions are

under consideration, and 3) the form of sanctions under consideration.” Simmerman v.

Corino, 27 F.3d 58, 64 (3d Cir. 1994). The notice must apprise the party of the

“particular factors that he must address if he is to avoid sanctions.” Anjelino v. N.Y.

Times Co., 200 F.3d 73, 100 (3d Cir. 1999).

The District Court imposed the sanction on Mr. Owoh on its own initiative, not in

response to any motion filed by Defendants. Rule 11(c)(3) specifies that a district court

may, “[o]n its own,” order an attorney “to show cause why conduct specifically described

3
“The Advisory Committee Note accompanying the 1993 amendment to Rule 11
states, „[e]xplicit provision is made for litigants to be provided notice of the alleged
violation and an opportunity to respond before sanctions are imposed.‟” 5 Charles Alan
Wright & Arthur R. Miller, Federal Practice and Procedure § 1337.3 (3d ed. 2012)
(quoting Fed. R. Civ. P. 11, advisory committee note (1993 amendments)). A failure to
comport with these requirements is enough to merit reversal. Id.
8
in the order has not violated Rule 11(b).” Fed. R. Civ. P. 11(c)(3) (emphasis added).

However, the District Court did not issue an order to show cause addressed to Mr. Owoh

before imposing the additional sanction. The Court expressed frustration with Mr. Owoh

in its December 8, 2011 Order denying his motion for reconsideration. (App. 22 (“The

Court would be remiss in not noting the frivolous nature of the present filing. . . . At

every stage of this review Mr. Owoh has ignored the legal standard for relief and has

flaunted procedural rules.”).) Although this Order may be viewed as providing Mr.

Owoh with some notice of the sanctionable conduct, the Order did not state that Rule 11

sanctions were under consideration, nor did it state the type of sanctions being

considered. Moreover, the Order was not formatted as an order to show cause, as is

specifically required by Rule 11(c)(3). Cf. In re Taylor, 655 F.3d 274, 286 (3d Cir. 2011)

(holding that order gave sufficient notice where it identified the sanctionable filings and

“was clearly in substance an order to show cause, even if it was not specifically captioned

as such”).

As a result, Mr. Owoh did not have an opportunity to respond before the additional

sanction was imposed. See Simmerman, 27 F.3d at 64 (noting that in some cases, “the

opportunity for counsel to fully brief the issue will suffice,” but explaining that “[a]t

bottom, however, there must be . . . some opportunity to respond”); Eash v. Riggins

Trucking Inc., 757 F.2d 557, 571 (3d Cir. 1985) (en banc) (explaining that notice and

opportunity to respond are “procedural safeguards” that “ensure that the attorney has an

adequate opportunity to explain the conduct deemed deficient”).
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 We recognize that dealing with a litigant who, even in the face of repeated

rebukes, continues to make frivolous filings, can seem like a Sisyphean task. In this

regard, the District Court exercised the patience of Job. However, while we appreciate

the District Court‟s frustration over Mr. Owoh‟s frivolous filings and dilatory tactics, the

procedural dictates at issue require us to vacate the January 27, 2012 sanction award and

remand to the District Court.

IV. CONCLUSION

For the foregoing reasons, we will affirm the District Court‟s October 13, 2011

Order and affirm in part and vacate in part the January 27, 2012 Order. The matter is

remanded to the District Court for proceedings in accordance with this Opinion.

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