Abeyta v. City of Albuquerque
| Decision Date | 23 December 2011 |
| Docket Number | No. 10–2234.,10–2234. |
| Citation | 18 Wage & Hour Cas.2d (BNA) 875,664 F.3d 792 |
| Parties | Ben D. ABEYTA; Richard T. Adams; Johnny Aguilar; Erlinda Antillon; Eric Ames; Max Aragon; Leroy J. Archuleta; John Armijo; Angelo Baca; Peter Baca; Priscilla Archuleta; Larry Baca; Juan J. Armijo; Jessica Bachicha; John Barnes; Todd Bartlett; John Robert Bazan; George E. Booker; John Bottyliso; John Bouldin; Carol C. Brady; Shelly Alexis Burlingame; Betty Jo Brooks; Nick D. Candelaria; Anthony Chavez; Samuel Castillo; August C. Chavez; Augustine E. Chavez; Curtis Chavez; Dennis Chavez; Victor T. Chavez; Frank M. Concini; H. Anthony Chavez; Edward R. Chavez; Dion R. Coney; Tony Corriz; Richard L. Debeulieu; Raymond L. Dimas; Richard Dubriel; Orlando S. Duran; Charles Fernandez; Olympia J. Esquivel; Roy W. Freitag; Phillip J. Gallegos; Eric Gandy; Earl Garcia; Ernestine Garcia; Frederick Garcia; Gene R. Garcia; Johnny Garcia; Joseph R. Garcia; Gilbert A. Garcia; Luis Garcia; Manuel Garcia; Pete Garcia; Rosie I. Garduno; Ruben R. Gaytan; John E. Ginan; Willie D. Giles; Angel M. Gomez, III; Lawrence B. Gomez; Mike Gomez; Robert C. Gutierrez, Chairman; John D. Hunter, President; David Lovato; Sandra Clark Lucero; Johnny Gonzales; Johnny B. Gonzales; Gaylene S. Griego; James Hernandez; David A. Herrera; Mary Herrera; Tim Herrera; Philip L. Howard; Precilla M. Jaramillo; Frank J. La Viera; Joseph Linton; Isaac Lopez; Elmer D. Lucero; Leo A. Lucero; Diana M. Marquez; Charlie Martinez; Mary Lou Griego; Lawrence H. Johnson; Mickey Griego; Daniel Maez; Epimenio Martinez; Robert Hernandez; Paul Martinez; Dorothea Montano; Motorcoach Operators; Frank Mc Afree; Mark McDonough; Jaun A. Mejias; Glenn Miller, Jr.; Anthony Don Millet; Ismael F. Montanez; Alex S. Montoya; Sadie C. Montoya; Jose R. Mora, Jr.; Jeff Nickelson; Douglas M. Nuanez; Pete Nunez; Don E. Maxey; Rueben Montoya; Johnny Montoya; Leroy A. Ortega; United Transportation Union Local 1745; Jacob Romero; Dale J. Padilla; Leroy Saavedra; Patricia Sandoval; Charles Osman; Edward T. Otero; Joann A. Otero; Ronald Otero; Atanacio M. Pacheco; Paul Padilla; Cynthia S. Perea; Joe A. Rodarte; David A. Sanchez; Trinnie Sanchez; Antonio Silva; Anthony Simoes; Anselup G. Smith; Shirley Stacy; Michael Tegado; Louis Teitelris; Jeff Valencia; Victor Vega; Steve W. Wright; Joseph A. Ortiz; Cheryl I. Parrett; Rumaldo Ramirez; Alex Ruiz; Jerry Sanchez; Jesus Santiago; Aldrina Sisneros; Victor D. Soltero; Margarita D. Trevino; Mary M. Schall; Michael Toya; Ernest M. Vargas; Robert M. Whalen; Angelo M. Reyes; Buddy L. Rivera; Juan Silva; Edward L. Taylor; Orlando Torres; Dennis Zamora; Eugene P. Perea; Nick Ramirez; Merewyn B. Slag; Andy Torres; Scott S. Swanson; Roger A. Tapia; Delvin Villavicencio; Hugh Zemek; Miachel A. Sanchez; Lawrence J. Pacheco; Daniel R. Otero; Sam Ortiz, Plaintiffs, v. CITY OF ALBUQUERQUE; Lawrence Rael, Chief Administrative Officer; Martin Chavez, Mayor, Defendants.Jennifer Bean; Bean & Associates, Inc., Appellants, v. Paul Steven Livingston, Appellee. |
| Court | U.S. Court of Appeals — Tenth Circuit |
OPINION TEXT STARTS HERE
William C. Salmon of Rhodes and Salmon, P.C., Albuquerque, NM, for Appellant.
Paul Livingston, Placitas, NM, for Appellee.
Before O'BRIEN, McKAY, and MATHESON, Circuit Judges.
This case comes to us on appeal for the second time and still involves a dispute over payment for transcripts of proceedings in the underlying case. After this court held that Appellant Jennifer Bean had no right to be paid for transcripts that Appellee Paul Livingston, attorney for the plaintiffs in the underlying action, did not order or obtain from her, the district court on remand vacated a court-ordered lien and ordered disbursement of funds to Mr. Livingston.1 Ms. Bean appeals, and we exercise jurisdiction pursuant to 28 U.S.C. § 1291.
As we explained in the previous appeal, see United Transp. Union Local 1745 v. City of Albuquerque, 352 Fed.Appx. 227 (10th Cir.2009), Jennifer Bean is a court reporter who prepared transcripts of hearings before a Special Master in an action between United Transportation Union Local 1745 and the City of Albuquerque for unpaid overtime under the Fair Labor Standards Act (FLSA). After the City ordered and paid for original hearing transcripts prepared by Ms. Bean, Mr. Livingston asked the special master to direct the City to file copies with the clerk so the plaintiffs could access them without having to obtain copies from Ms. Bean at higher cost. When the special master refused, Mr. Livingston ordered copies of the transcripts directly from the City through New Mexico's Inspection of Public Records Act, N.M. Stat. § 14–2–1 to 14–2–12.
After Ms. Bean complained to the district court, the court ordered the plaintiffs to “pay reasonable court reporter's fees for any copies of transcripts that they desire the use of.” (Appellant's App. at 52.) The district court also placed a lien on any future recovery by the plaintiffs to secure payment of the yet-to-be-determined amount claimed by Ms. Bean. The FLSA action eventually settled, a final judgment was entered, and the City agreed to a fee settlement with Mr. Livingston. After he failed to submit a motion for costs and fees, including any fees owed to Ms. Bean under the lien, the court found Mr. Livingston personally liable for Ms. Bean's fees and held back a portion of the funds from his fee payment.
Ms. Bean eventually determined the amount owed under the lien was $4,159.02, and both parties requested the court release the funds to them. The court ordered the funds released to Ms. Bean, and Mr. Livingston appealed.2
In his notice of appeal, Mr. Livingston identified Ms. Bean and Bean & Associates, Inc., as appellees along with the city and other defendants. He also filed a “Motion to Clarify Parties” specifically asking that Ms. Bean be made a party to the appeal. On July 23, 2008, the clerk of this court filed an order denying Mr. Livingston's motion because Ms. Bean had not been a party in the district court proceedings and had not asked to intervene. Mr. Livingston continued with the appeal. On August 21, 2009, this court held that Ms. Bean did not have a proprietary interest in the contents of the transcripts, reversed the district court's order distributing the funds to Ms. Bean, and remanded the case. At that point, Ms. Bean attempted to file a “Motion for Reconsideration and Objection to Bill of Costs” to object to this court's decision to remand, but since she was not a party, she could not file the objection. Ms. Bean did not seek certiorari in the Supreme Court.
Instead, Ms. Bean returned to the district court to object and filed a “Special Appearance to Object to Subject Matter Jurisdiction,” asking the district court to vacate this court's order for lack of jurisdiction. The district court instead followed this court's mandate, vacated the lien, and ordered disbursement of the funds to Mr. Livingston. Ms. Bean now appeals.
We must first address whether Ms. Bean, as a non-party, can pursue this appeal.3 “The rule that only parties to a lawsuit, or those that properly become parties, may appeal an adverse judgment, is well settled.” Marino v. Ortiz, 484 U.S. 301, 304, 108 S.Ct. 586, 98 L.Ed.2d 629 (1988). However, there is an exception to this rule in certain cases where the non-party possesses a “unique interest” in the outcome of the case and actively participates in the proceedings relating to that interest. For instance, in Plain v. Murphy Family Farms, 296 F.3d 975 (10th Cir.2002), we found a decedent's heirs to have a unique interest—analogous to the interest of unnamed members of a class—permitting them to appeal from an order apportioning damages in a wrongful death action they had opposed even though they had not formally intervened. Cf. Devlin v. Scardelletti, 536 U.S. 1, 14, 122 S.Ct. 2005, 153 L.Ed.2d 27 (2002) (). We noted in Plain that “to deny the [nonparty heirs] the right of appellate review would be, in effect, to deny them the right to challenge a binding division of damages which they timely opposed by invitation in the district court, and appealed at the earliest opportunity.” Plain, 296 F.3d at 980 (emphasis added).
The nonparty heirs in Plain also requested review of the district court's denial of their second motion for a new trial. The heirs had initially moved to intervene in the district court under Federal Rules of Civil Procedure Rule 24(a) seven months prior to trial, but the district court denied their motion. They filed a motion to reconsider three months before trial, in effect a second motion to intervene. When the district court denied that motion, they filed a timely appeal with this court, but then voluntarily dismissed that appeal after the district court refused to stay the trial. We therefore dismissed that appeal. See Plain v. Murphy Family Farms, No. 01–6069 (10th Cir. dismissed March 12, 2001). After the jury rendered its verdict, the nonparty heirs filed a motion for a new trial, or in the alternative, a division of the damage award. The district court denied their motion and entered final judgment, after which the nonparty heirs filed a second motion for a new trial. When the district court denied that motion, the nonparty heirs appealed.
In that appeal, we concluded we lacked jurisdiction to review the district court's denial of the second motion for a new trial based on the established rule in Marino that nonparties generally cannot appeal a district court judgment. See Marino, 484 U.S. at 304, 108 S.Ct. 586. We held that “[t]hose seeking to participate in the underlying resolution of the merits of a lawsuit must make ‘timely application’ to intervene under Fed.R.Civ.P. 24.” Plain, 296 F.3d at 980. “If the district court denies that motion, the proper procedure is to...
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...was certified under Rule 23(b)(1), must intervene to appeal an objection overruled by the district court.”); Abeyta v. City of Albuquerque, 664 F.3d 792, 796 (10th Cir.2011) (“[T]he Devlin exception to the Marino [ v. Ortiz, 484 U.S. 301, 108 S.Ct. 586, 98 L.Ed.2d 629 (1988)] rule will only......
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...motions for intervention in the same case are frequently treated as motions to reconsider. See, e.g. , Abeyta v. City of Albuquerque , 664 F.3d 792, 796 (10th Cir. 2011) (a second motion to intervene is, in effect, a motion to reconsider); Plain v. Murphy Family Farms , 296 F.3d 975, 978 (1......
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