LLF - TN - Appeal - 2013-03-21 - Appellees Motion to Dismiss

7/28/2019 LLF - TN - Appeal - 2013-03-21 - Appellees Motion to Dismiss

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IN THE UNITED STATES COURT OF APPEALSFOR THE SIXTH CIRCUIT

LIBERTY LEGAL FOUNDATION,

J OHN DUMMETT, LEONARDVOLODARSKY, CREGMARONEY,

Plaintiffs-Appellants,vs.

NATIONAL DEMOCRATICPARTY OF THE USA, INC.,DEMOCRATIC NATIONAL

COMMITTEE, TENNESSEEDEMOCRATIC PARTY, DEBBIEWASSERMAN SCHULTZ, andCHIP FORRESTER,

Defendants-Appellees.

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Case No. 12-6634

On Appeal From The UnitedStates District Court For TheWestern District Of Tennessee,Case No. 2:12-cv-02143-cgc

DEFENDANTS-APPELLEES MOTION TO DISMISS FOR LACK OFJ URISDICTION

Pursuant to Federal Rule of Appellate Procedures 3 and 27 and Sixth Circuit

Rule 27(d), Defendants-Appellees, the Tennessee Democratic Party (TNDP),

and Chip Forrester (collectively the TNDP Defendants and together with the

Democratic National Committee and Debbie Wasserman Schultz the Defendants

or Appellees) file this Motion to Dismiss for Lack of Jurisdiction, seeking to

dismiss this appeal filed by the Liberty Legal Foundation, John Dummett, Leonard

Volardarsky, and Creg Maroney, (collectively the Appellants or Plaintiffs).

Case: 12-6634 Document: 006111629798 Filed: 03/21/2013 Page: 1


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INTRODUCTION

This case is one of literally hundreds of birther lawsuits filed across the

country seeking to disqualify President Barak Obama from holding the Office of

the Presidency or for running for that office for failure to satisfy Article IIs

natural born citizen requirement. Many courts have dismissed these lawsuits,

prior to Appellants filing the case at bar, for failure of plaintiffs to demonstrate

standing to bring these inherently frivolous claims. See e.g., Drake v. Obama,

2011 U.S. App. LEXIS 25763 (9th Cir., Dec. 22, 2011); Kerchner v. Obama, 612

F.3d 204 (3d. 2010); Berg v. Obama, 586 F.3d 234, 239 (3d Cir. 2009);Taitz v.

Obama, 707 F. Supp. 2d 1 (D.D.C. 2010); Wrotnowski v. Bysiewicz, 289 Conn.

522 (Sup. Ct. Conn. 2008).

Ultimately, the District Court in the case at bar, following the lead from

many previous courts, dismissed the complaint determining that Appellants, like

plaintiffs in many other previously filed birther cases, lacked standing to bring

claims challenging President Obamas qualifications to hold or to run for the

Office of the President of the United States. Additionally, the District Court

sanctioned Appellants for filing frivolous claims they should have known they

lacked standing to pursue.

After entry of the final judgment, Appellants filed a Notice of Appeal that

limited the appeal to a single issue the Order establishing theamountof the fee to



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be paid by Appellants attorney for his sanctionable actions. Importantly, the

Notice of Appeal did not specify or refer to the order actually imposing sanctions,

but the Appellant Brief, filed on February 19, 2013 (Doc. 611595016, Appellant

Brief), only addresses whether the District Court properly imposed sanctions in

the first instance and contains no discussion whatsoever concerning the amount of

the fee imposed by the District Court. Because the Appellants Notice of Appeal

does not identify the order imposing sanctions, this Court lacks jurisdiction to

review the order imposing sanctions. Accordingly, since no portion of the

Appellant Brief actually addresses the order that was appealed, no issues have been

presented to this Court to consider and this appeal should be dismissed in its

entirety.

FACTUAL BACKGROUND

Appellants initially filed this case in the Chancery Court of Shelby County,

Tennessee and Defendants successfully removed the case to the United States

District Court for the Western District of Tennessee. (RE No., 1 at PageID 1-3.)1

Strangely, Appellants opposed the removal on the spurious grounds that a

complaint seeking to disqualify President Obama from appearing on the ballot on

the grounds that he was unqualified under the United States Constitution did not

raise a federal question triggering the District Courts subject matter jurisdiction.

1Appellants failed to file an appendix as required by 6 Cir. R. 30(a). Accordingly, references in this brief will be to

the district court record document number and specific page cites.



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(RE No. 13 at PageID 122-26.) The District Court rightfully disagreed and agreed

to keep the case in federal court. (RE No. 18.)

The operative complaint is a class action complaint seeking injunctive relief

for the extraordinary purpose of keeping President Barack Obama off the Tennessee

ballot for the November 2012 election on the basis that he did not satisfy Article

IIs Natural Born Citizen requirement to hold the office of President of the United

States. (RE No., 1-2 at PageID 10-25.) This was not the first time parties

attempted to delegitimize the President with these accusations, over 140 cases in

federal and state court have alleged similar claims. (SeeAppendix, attached hereto

as Exhibit A (identifying the numerous birther cases that have been filed in

federal and state forums).)

The Defendants filed three Motions to Dismiss (RE Nos. 4 through 8)

pursuant to Fed. R. Civ. P 12(b)(1) and (6), 12(b)(2) and 12(b)(3). Defendants

additionally sent a Rule 11 letter requesting that the Plaintiff immediately dismiss

the lawsuit and when the Appellants failed to do so, the TNDP Defendants moved

for sanctions. (RE No. 25 and 26-1 at PageID 340-44.)

Shortly after the parties briefed the motions to dismiss, the Court granted the

Defendants consolidated Rule 12(b)(1) and (6) Motion to Dismiss (RE Nos. 4-5)

on the basis that the Court lacked subject matter jurisdiction due to the Appellants

lack of standing to pursue their claims. (RE No 31 at PageID 476-486.) That Order



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is now final. Thereafter, the Court granted the TNDP Defendants Sanctions

Motion and found that the TNDP Defendants counsel was entitled to the fees it

incurred in drafting the consolidated Rule 12(b)(1) and (6) Motion to Dismiss. (RE

No. 32 at PageID 500-01, the Sanctions Order.)

The Sanctions Order found that, by filing the lawsuit, the Appellants

violated 28 U.S.C. 1927. (Sanctions Order, RE No. 32 at PageID 495-500.)

Specifically, the District Court, relying on Sixth Circuit precedent interpreting 28

U.S.C. 1927, held that sanctions were warranted because:

The Court holds that Defendants have shown that counselfor Plaintiff knew or reasonably should have known thatthe claims in this case had no basis in law. Specifically,counsel for Appellants reasonably should have knownthat Appellants lacked standing to pursue their claimsrelated to Defendants efforts to certify President Obamaas the Democratic Partys nominee for the Tennesseegeneral election.

(Id. at PageID 496.)

In response to the Sanctions Order and the Courts directive therein, the

TNDP Defendants filed their Petition for Attorneys Fees on September 14, 2012,

seeking $22,800 in attorneys fees awarded by the Sanctions Order. (RE No. 37.)

The Court ultimately granted, in part, this petition and awarded attorneys fees in

the amount of $10,565.23. (RE No. 53 at PageID 708-09, the Fee Award Order.)

Immediately thereafter, the Court entered final judgment. (RE No. 54.)



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Appellants then filed their Notice of Appeal stating the following:

Notice is hereby given that all plaintiffs in the above-named case hereby appeal to the United States Court ofAppeals for the 6th Circuit from a judgment entered bythe United States District Court for the Western Districtof Tennessee (R.54) granting in part defendants petitionfor reasonable attorneys fees (R.53), entered in thisaction on the 4th day of December, 2012.

(RE No. 55 at PageID 711.) As is clear from the Notice of Appeal, Appellants did

not identify the Sanctions Order (RE No. 32) as the order appealed from, but rather

only identified the Fee Award Order (RE No. 53.).

Strangely, the Appellant Brief does not raise a single issue related to the

amount of the attorney fee awarded. (See generallyAppellant Brief.) There is no

discussion of the hourly rates charged, the amount of time worked, or any other

factor that went into determining the reasonableness of the fee awarded. The

Appellant Brief conclusion makes clear that the actual order appealed from is the

Sanctions Order:

For all the reasons discussed above, the Plaintiff-Appellants request that this Court reverse the districtCourts grant of Defendant-Appellees motion forsanctions.

(Appellant Brief at 34.) Similarly, the first sentence of the Statement of the Case

portion of the Appellant Brief states, [t]his is an appeal of the District Courts

imposition of sanctions against Plaintiffs attorney pursuant to 28 U.S.C 1927.

(Appellant Brief at 11.)



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ARGUMENT

It is well settled in this Circuit that a court of appeals has jurisdiction only

over the areas of a judgment specified in the notice of appeal as being appealed.

JGR, Inc. v. Thomasville Furniture Indus., Inc., 550 F.3d 529, 532 (6th Cir. 2008);

see also Bonner v. Perry, 564 F.3d 424, 429 (6th Cir. 2009); Caldwell v. Moore,

968 F.2d 595, 598 (6th Cir. 1992) ("[W]here a notice of appeal specifies a

particular order, only the specified issues related to that order may be raised on

appeal."). Accordingly, this Court has held that "[a]n appellant waives any appeal

to a portion of a judgment not mentioned in his notice of appeal if he chooses to

'designate specific determinations in his notice.'" United States v. Pickett, 941 F.2d

411, 415 n.3 (6th Cir. 1991)

This rule stems from the requirements of Rule 3 of the Federal Rule of

Appellate Procedure , which obligates a party to designate in the notice of appeal

the judgment, order or part thereof appealed from. Drayton v. J iffee Chemical

Corp., 591 F.2d 352, 361 at n.10 (6th Cir. 1978) (quoting Rule 3(c), Fed.R.App.P).

The Sixth Circuit has held that "strict obedience to Rule 3(c) is warranted, United

States v. Glover, 242 F.3d 333, 335 (6th Cir. 2001), and the rule "imposes

jurisdictional requirements that this court cannot waive." Martin v. Gen. Elec. Co.,

187 Fed. Appx. 553, 557 (6th Cir. 2006) (citingTorres v. Oakland Scavenger Co.,

487 U.S. 312, 317, & n.3 (1988)). This Court, on at least two occasions, has



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emphasizedthat strict obedience to Rule 3(c) is warranted, even though it may

have harsh results in certain circumstances. Glover, 242 F.3d at 335 (citing

Minority Employees v. Tenn. Dept of Employment Sec., Inc., 901 F.2d 1327, 1329

(6th Cir. 1990) (en banc); United Sates v. Universal Mgmt. Servs., Inc., 191 F.3d

750, 757 (6th Cir. 1999)).

Accordingly, to the extent that the Appellant Brief seeks to address issues

not properly noticed in the Notice of Appeal, this Court lacks jurisdiction to decide

those matters. JGR, 550 F.3d at 532; Bonner, 564 F.3d at 429; see also Martin,

187 Fed. Appx. 553, *11 (holding that a party failed to perfect an appeal by

failing to identify the order awarding sanctions in the partys notice of appeal);

Chandler v. Crews, Case No. 11-6128, 2012 U.S. App. LEXIS 22303 (6th Cir.

Oct. 26, 2012) (holding that the Court lacked jurisdiction to review an order when

the appellant identified a different order in his notice of appeal).

No reasonable interpretation of the Notice of Appeal could encompass that

the Appellants sought to appeal the Sanctions Order. In relevant part, the Notice of

Appeal states:

Notice is hereby given that all plaintiffs in the above-named case hereby appeal to the United States Court ofAppeals for the 6th Circuit from a judgment entered bythe United States District Court for the Western Districtof Tennessee (R.54) granting in part defendantspetition for reasonable attorneys fees (R.53), entered inthis action on the 4th day of December, 2012.



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(RE No. 55 at 1 (emphasis added).) The Notice of Appeal specifically identifies

the Fee Award Order and specifically limits the appeal to the Court granting

[Appellees] petition for reasonable attorneys [sic] fees. (Id.) The petition for

reasonable attorneys fees never raises whether sanctions are appropriate in this

instance (see generallyRE No. 37) nor can the Fee Award Order raise any issue of

whether sanctions are appropriate (see generallyRE No. 53). Both the fee petition

and the Fee Award Order address only the setting of a reasonable fee in light of the

Sanctions Order and discuss issues limited to a traditional lodestar calculation (i.e.

reasonable hourly rates, reasonable hours worked, lodestar multiplier, etc.). (See

generallyRE Nos. 37 and 53.) No where in the fee petition (RE No. 37) or the Fee

Award Order (RE No. 53) does the issue of whether sanctions were appropriately

granted in the first place ever addressed. The Notice of Appeal even recognizes

this by using the term reasonable attorneys [sic] fees. (RE No. 55.)

Since the fee petition, the Fee Award Order, and the Notice of Appeal all

deal with issues strictly related to the reasonableness of the fee award, and not

whether the Court properly granted sanctions in the first instance, Appellants

appeal is strictly limited to the issue of whether the District Court set an

appropriate fee award (i.e. whether $10,565.23 is an appropriate amount of

sanctions). JGR, 550 F.3d at 532 (holding that a parties failure to identify a

specific portion of an order in its notice of appeal barred the appellant from



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seeking review of that portion of the order); Bonner, 564 F.3d at 429 (holding that

the Sixth Circuit only had jurisdiction over issues specifically identified in the

notice of appeal and did not encompass an order filed after the appellant filed a

notice of appeal);J ordan v. Young, 791 F.2d 933, *7 (6th Cir. 1986) (unpublished)

(holding that appellants identifying specific portions of the judgment in his notice

of appeal limited the appeal to those issues specifically enumerated in the notice of

appeal); Martin, 187 Fed. Appx. 553 at *11 (holding that the Court lacked

jurisdiction to overturn the impositions of sanctions when the appellant only

identified the order granting summary judgment and not the order imposing

sanctions in its notice of appeal); Chandler, 2012 U.S. App. LEXIS 22303, *3-4

(holding that the Court lacked jurisdiction to review an order when the appellant

identified a different order in his notice of appeal).

After all, Appellants, and specifically Appellants attorney who is the

individual ultimately responsible for paying for the sanctions at issue here, had the

opportunity to file a general notice that would have allowed the entire judgment to

be taken up on appeal. McLaurin v. Fischer, 768 F.2d 98, 101-02 (6th Cir. 1985)

([T]he law is well settled that an appeal from a final judgment draws into question

all prior non-final rulings and orders.) (citing Munoz v. Small Business

Administration, 644 F.2d 1361, 1364 (9th Cir. 1981); Herron v. Rozelle, 480 F.2d

282, 285 (10th Cir. 1973); Elfman Motors, Inc. v. Chrysler Corp., 567 F.2d 1252,



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1253 (3d Cir. 1977); 9 J. Moore, B. Ward & J. Lucas, Moore's Federal Practice

para. 203.18 (1985).) Here, Appellants attorney chose to designate specific

determinations in his notice of appeal rather than simply appealing from the

entire judgment and as a result his appeal is limited only [to] the specified

issues. McLaurin, 768 F.2d at 102 (citingDrayton, 591 F.2d at 361, n.10).

In short, having designated only the Fee Award Order in their Notice of

Appeal, Appellants are now limited to only the issues raised in the Fee Award

Order (i.e. whether the $10,565.23 attorney fee award is reasonable under the

circumstances). Appellants Brief does not address any issue related to the

reasonableness of the fee award, and it is clear from the statements in the Appellant

Brief alone, that Appellants only seek to appeal the Sanction Award. (See e.g.

Appellant Brief at 11 (This is an appeal of the District Courts imposition of

sanctions against Plaintiffs attorney (emphasis added)); at 20, n.2 (While the

instant appeal requests review only of the District Courts imposition of

sanctions (emphasis added)); at 34 (the Plaintiff-Appellants request that this

Court reverse the District Courts grant of Defendant-Appelllees motion for

sanctions. (emphasis added)).2 Because Appellants failed to address issues in the

2Appellants did file an earlier Notice of Appeal designating the Sanctions Order as the order being appealed. (RE

No. 35.) This Court correctly determined that this Notice of Appeal was premature. Liberty Legal Foundation, et.al v. National Democratic Party of the USA, Inc., et. al, Sixth Cir. Case No. 12-6082, Order Filed October 5, 2012.However, this Notice of Appeal is of no relevance to the appeal at bar because it cannot relate forward to the final

judgment entered months after the original notice of appeal was filed. FirsTier Mortgage Co. v. Investors MortgageIns. Co., 498 U.S. 269, 276 (holding that Rule 4(a)(2) does not permit[] a notice of appeal from a clearlyinterlocutory decision such as a discovery ruling or a sanction order- to serve as a notice of appeal from the final



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Fee Award Order in their Appellant Brief, those arguments are now waived. Hills

v. Kentucky, 457 F.3d 583, 588 (6th Cir. 2006);Thaddeus-X v. Blatter, 175 F.3d

378, 403 n.18 (6th Cir. 1999)

Accordingly, the appeal in its entirety should be dismissed because of

Appellants failure to file a properly noticed Notice of Appeal which would give

this Court jurisdiction to review the Sanctions Order. JGR, 550 F.3d at 532;

Bonner, 564 F.3d at 429;Jordan, 791 F.2d 933, at *7; Martin, 187 Fed. Appx. 553

at *11; Chandler, 20120 U.S. App. LEXIS 22303.

CONCLUSION

In light of the foregoing, the Court should dismiss this appeal in its entirety.

Submitted this 22nd day of March, 2013.

By: /s/ J . Gerard Stranch, IVJ . Gerard Stranch, IV (BPR #023045)Benjamin A. Gastel (BPR #028699)BRANSTETTER, STRANCH& JENNINGS, PLLC227 Second Avenue North, 4th FloorNashville, TN 37201-1631Telephone: 615/254-8801Facsimile: 615/[email protected]@branstetterlaw.com

Counsel for the Appellees TennesseeDemocratic Party, Chip Forrester,

judgment.) Nor do the Appellants believe this Notice of Appeal is controlling as the only Notice of Appealidentified by Appellants in the Appellant Brief is the Notice of Appeal filed after the District Court entered its final

judgment. Appellant Brief at 10 (The Plaintiffs-Appellants filed a timely notice of appeal on December 27, 2012.Notice of Appeal, R.55, Page ID#711.)



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Democratic National Committee, andDebbie Wasserman Schultz

CERTIFICATE OF SERVICE

I hereby certify that the foregoing was served via the Courts CM/ECF

system, on March 22, 2013, upon:

Van IrionLiberty Legal Foundation9040 Executive Park Dr., Ste. 200Knoxville, TN 37923

/s/ J . Gerard Stranch, IV


LLF - TN - Appeal - 2013-03-21 - Appellees Motion to Dismiss

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