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Collier v. Marshall

filed: October 13, 1992.

JANETTE COLLIER, APPELLANT
v.
MARSHALL, DENNEHEY, WARNER, COLEMAN & GOGGIN; ROBERT G. HANNA, JR., ESQUIRE, W.V. PANGBORNE COMPANY INC.; CITY OF PHILADELPHIA; SANDRA MAZER MOSS; GILDA KRAMER



ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA. (D.C. Civil Action No. 90-06001)

Before: Stapleton, Scirica and Nygaard, Circuit Judges

Author: Nygaard

Opinion OF THE COURT

NYGAARD, Circuit Judge.

Allen L. Feingold, Esq., who represented plaintiff Janette Collier at trial, appeals a Rule 11 order imposing attorney's fees and costs as a sanction against him. We will not consider the merits of Feingold's appeal, but rather will dismiss it because we lack jurisdiction.

I.

In January 1991, the district court granted a defense motion and dismissed plaintiff's complaint. Pursuant to 42 U.S.C. § 1988, it awarded costs and reasonable attorney's fees to defendants. Additionally, it ordered that upon the filing of affidavits as to costs and reasonable attorney's fees incurred by defendants, and any response to such affidavits, including any explanation of any mitigating factors, plaintiff's counsel, Allen L. Feingold, shall pay costs and fees as a sanction for violating Fed. R. Civ. P. 11.

Plaintiff appealed the motion to dismiss, but since the amount of costs and fees imposed under Rule 11 had not been determined, the portion of the order awarding them was not appealable. Napier v. Thirty or More Unidentified Federal Agents, 855 F.2d 1080, 1089-90 (3d Cir. 1988). Hence, proceedings on the Rule 11 sanctions were stayed pending the appeal. After we affirmed the dismissal, the district court conducted a hearing and issued its order quantifying the amount of the attorney's fees imposed as sanction against Feingold. Janette Collier appeals.

II.

Federal Rule of Appellate Procedure 3(c) provides that the notice of appeal "shall specify the party or parties taking the appeal." The notice of appeal filed by Feingold reads:

NOTICE is hereby given that Plaintiff, Janette Collier, hereby appeals to the United States Court of Appeals for the Third Circuit, from the Memorandum and Order of the Honorable Donald W. VanArtsdalen, entered in this action on the 3rd day of December, 1991.

(emphasis added.)

Feingold filed the notices of appeal, not on his own behalf but on behalf of Collier. The issue is whether we have appellate jurisdiction to review a judgment imposing Fed. R. Civ. P. 11 sanctions on an attorney when the notice of appeal is in the name of the client only. If a party fails to satisfy the requirements of Rule 3(c), we lack jurisdiction over that party. Torres v. Oakland Scavenger Co., 487 U.S. 312, 317, 101 L. Ed. 2d 285, 108 S. Ct. 2405 (1988).

Even though the notice of appeal technically varies from the letter of Rule 3(c), it is sufficient if it is the "functional equivalent" of a notice. 487 U.S. at 317. The functional equivalent to a notice of appeal must, however, identify Feingold as the party taking the appeal. CTC Imports & Exports v. Nigerian Petroleum Corp., 951 F.2d 573, 576 (3d Cir. 1991). Nothing in the record here supports the finding of a functional equivalence nor gives any notice that Feingold is the appellant. The ...


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