CTC Imports and Exports v. Nigerian Petroleum Corp.

• Decision Date: 17 January 1992
• Docket Number: No. 90-1886,90-1886
• Parties: , 21 Fed.R.Serv.3d 931 CTC IMPORTS AND EXPORTS, v. NIGERIAN PETROLEUM CORPORATION, Gulf Shipping Agency (Nigeria, Ltd.), Universe Maritime Pireaus, Marzelli, CASA, MV "VYTINA", Nicholos, Captain Stratis, Rice Unruh, Russel, Shelton, Individually and as Representative of British Petroleum, British Petroleum, Sohio Supply Company Addax Overseas S.A. of Panama v. INDAKWA, John, Schiefen, Jack, Matthew A., Thomas P., Olickan, Joseph, Mathai, Thomas, Omuhambe, Shadrah, International Maritime Transport, Inc. Behrens, Wolfgang, Ludwig, Peter, Doe, John Roe, John, XYZ Corporation CTC Imports and Exports, Simon W. Tache, Esquire, Appellants.
• Court: U.S. Court of Appeals — Third Circuit

Page 573

951 F.2d 573

1992 A.M.C. 1243, 21 Fed.R.Serv.3d 931

CTC IMPORTS AND EXPORTS, v. NIGERIAN PETROLEUM CORPORATION, Gulf Shipping Agency

(Nigeria, Ltd.), Universe Maritime Pireaus, Marzelli, CASA,

MV "VYTINA", Nicholos, Captain Stratis, Rice Unruh, Russel,

Shelton, Individually and as Representative of British

Petroleum, British Petroleum, Sohio Supply Company Addax

Overseas S.A. of Panama v. INDAKWA, John, Schiefen, Jack, Matthew A., Thomas P.,

Olickan, Joseph, Mathai, Thomas, Omuhambe, Shadrah,

International Maritime Transport, Inc. Behrens, Wolfgang,

Ludwig, Peter, Doe, John Roe, John, XYZ Corporation

CTC Imports and Exports, Simon W. Tache, Esquire, Appellants.

No. 90-1886.

United States Court of Appeals, Third Circuit.

Argued May 6, 1991.

Decided Dec. 19, 1991.

Rehearing Denied Jan. 17, 1992.

L. Obioma Aham (argued), Bellaire, Tex., Simon W. Tache (argued), Philadelphia, Pa., for appellant.

Faustino Mattioni, Mattioni, Mattioni & Mattioni, Mary E. Reeves, Krusen, Evans & Byrne, James W. Johnson (argued), Clark, Ladner, Fortenbaugh & Young, Philadelphia, Pa., Donald J. Kennedy, Alan Heblack, Haight, Gardner, Poor & Havens, New York City, for appellees.

Before MANSMANN and NYGAARD, Circuit Judges and RONEY, Circuit Judge ^*.

OPINION OF THE COURT

NYGAARD, Circuit Judge.

CTC Imports and Exports sued to arrest the vessel M/V Vytina. The district court dismissed the complaint and upon motion imposed sanctions against CTC and its attorneys, Obioma Aham and Simon Tache, pursuant to Federal Rule of Civil Procedure 11 and 28 U.S.C. § 1927. They appeal from an order denying motions by Tache and Aham for reconsideration of the sanctions. We conclude that Aham is not an appellant. Thus we will dismiss his appeal. We hold that the district court properly sanctioned CTC. Because we further hold that the district court improperly dismissed Tache's motion for reconsideration, we will reverse the order denying Tache's motion and remand the matter to the district court.

I.

CTC through its attorneys, Tache and Aham, falsely arrested a Nigerian oil shipment aboard the Vytina. On March 10, 1989, at about 11:00 P.M., Aham, an attorney for CTC, contacted Tache and requested Tache to act as local counsel for CTC in arresting the Vytina. Thereafter events moved rapidly. On March 11, a day before the Vytina was scheduled to arrive in Philadelphia, Tache filed a complaint against defendants/appellees. The complaint alleged that CTC was the rightful owner of cargo aboard the Vytina at Port of Bonny, Nigeria. It sought arrest of the vessel when it docked at Marcus Hook, Pennsylvania. On March 12, the district court issued an emergency order authorizing the arrest. On March 13, the Vytina arrived at Marcus Hook and the arrest warrant was executed.

On March 15, the district court vacated the arrest warrant pursuant to the parties' stipulation and the litigation proceeded. In the next two days, Captain Nikolaos Stratis, the master of the Vytina, and John Indakwa, President of CTC, were deposed. Stratis' testimony showed that CTC's claim of legal title was based on forged documents. On March 21, the district court held a hearing to resolve discovery disputes and ordered CTC to produce shipping documents to substantiate its legal title to the cargo. On March 26, defendants moved for an expedited hearing for summary judgment and the court heard oral argument on March 31. Because CTC failed to file a verification with its complaint, the court dismissed the complaint with leave to file a proper verification.

Defendants filed a joint motion for sanctions pursuant to Fed.R.Civ.P. 11 and 28 U.S.C. § 1927. On April 27, 1990, the district court sanctioned Tache for conducting an inadequate pre-filing inquiry and CTC for filing a frivolous complaint pursuant to Rule 11. The court also sanctioned Aham pursuant to 28 U.S.C. § 1927 for entering an appearance after the arrest warrant had been vacated and for joining in all filed papers. It imposed joint and several liability for sanctions among these three parties and awarded the defendants attorneys' fees. 739 F.Supp. 966. On May 2, 1990, the court entered judgment.

On May 9, 1990, Tache on his own behalf filed a motion for reconsideration of the April 27 order. On July 2, 1990, Aham on his own behalf filed a similar motion. On October 22, 1990, the court denied Tache's and Aham's motions without opinion. On November 21, 1990, Tache and CTC filed a timely notice of appeal.

II.

Before discussing the merits of the sanctions, we must decide the threshold issue of whether we have appellate jurisdiction for all parties. The notice of appeal reads:

Notice is hereby given that Plaintiff CTC IMPORTS and EXPORTS, by and through its undersigned counsel, L. Obioma Aham, Esquire; and Simon W. Tache, Esquire, in his own right, hereby appeal to the United States Court of Appeals for the Third Circuit from the order by this Court of October 22, 1990, denying the motions of Simon Tache, Esquire and L. Obioma Aham, Esquire, for reconsideration of the court's Order imposing Sanctions.

As to Tache, this notice satisfies Federal Rule of Appellate Procedure 3(c) (Rule 3(c)). ¹ As to CTC and Aham, however, the notice presents problems.

First, Aham filed the notice of appeal not on his behalf, but on behalf of CTC. In Torres v. Oakland Scavenger Co., 487 U.S. 312, 317, 108 S.Ct. 2405, 2407, 101 L.Ed.2d 285 (1988), the Supreme Court held that if a party fails to satisfy the requirements of Rule 3(c), then the appellate court lacks jurisdiction over that party. Rule 3(c) requires the notice to "specify the party or parties taking the appeal." 487 U.S. at 314, 108 S.Ct. at 2407. Since the timely filing of a notice of appeal is mandatory and jurisdictional, the notice as to Aham's appeal is fatal unless he filed a functional equivalent of a timely notice. 487 U.S. at 317, 108 S.Ct. at 2409.

A functional equivalent to a notice of appeal must identify Aham as the party taking the appeal. See Masquerade Novelty, Inc. v. Unique Indus., Inc., 912 F.2d 663, 665 (3d Cir.1990) (several documents when considered along with original notice of appeal serve as functional equivalent); Dura Systems, Inc. v. Rothbury Inv., Ltd., 886 F.2d 551 (3d Cir.1989) (consent order naming parties taking appeal serves as functional equivalent), cert. denied 493 U.S. 1046, 110 S.Ct. 844, 107 L.Ed.2d 838 (1990). Nothing in the record serves as a functional equivalent. The only notice of appeal he filed was on behalf of CTC, which is not a notice on his behalf. ² Aham failed to comply with the jurisdictional prerequisites.

Second, CTC purports to appeal from the order denying Tache's Federal Rule of Civil Procedure 59(e) motion for reconsideration. ³ It appealed from the wrong order under Rule 3(c). Rule 3(c) provides: "The notice of appeal ... shall designate the judgment, order or part thereof appealed from." When a Rule 59(e) motion is denied, "the judgment of the initial order becomes final and subject to appeal." Federal Kemper Ins. Co. v. Rauscher, 807 F.2d 345, 348 (3d Cir.1986). CTC cannot appeal from an order denying a motion it never filed. It should have appealed from the initial April 27 order imposing sanctions, which became final upon the denial of the Rule 59(e) motion. Thus CTC fails to meet the letter of Rule 3(c).

In Torres, the Court said "that the requirements of the rules of procedure should be liberally construed and that 'mere technicalities' should not stand in the way of consideration of a case on its merits." 487 U.S. at 316, 108 S.Ct. at 2408. Thus if a party files a notice of appeal that fails to meet the letter of the rule, "a court may nonetheless find that the litigant has complied with the rule if the litigant's action is the functional equivalent of what the rule requires." 487 U.S. at 317, 108 S.Ct. at 2408-09.

We conclude that the notice of appeal is a functional equivalent to giving notice that CTC is appealing the April 27 order. Our jurisprudence require that we liberally construe notices of appeal. See Foman v. Davis, 371 U.S. 178, 181-82, 83 S.Ct. 227, 229-30, 9 L.Ed.2d 222 (1962). It is clear that CTC intended and tried to appeal the April 27 order. There is no prejudice because all parties assumed that CTC was appealing the sanctions order and argued so. We will treat CTC's notice of appeal as "an effective, although inept, attempt to appeal from the [April 27] judgment" imposing sanctions. 371 U.S. at 181, 83 S.Ct. at 229. See Elfman Motors, Inc. v. Chrysler Corp., 567 F.2d 1252, 1254 (3d Cir.1977) ("if from the notice of appeal itself and the subsequent proceedings on appeal it appears that the appeal was intended to have been taken from an unspecified judgment order or part thereof, the notice may be construed as bringing up the unspecified order for review") (citing Foman, 371 U.S. 178, 83 S.Ct. 227). Thus, Tache and CTC are the only appellants properly before this court.

III.

A.

Tache appeals from the order denying his motion for reconsideration. He argues that the district court improperly denied his motion because he satisfied the requisite duties under Federal Rule of Civil Procedure 11 (Rule 11). We will treat this as a motion under Federal Rule of Civil Procedure 59(e), even though Tache identifies Rule 60(b) in his memorandum to support the motion. Rankin v. Heckler, 761 F.2d 936, 942 (3d Cir.1985) ("Regardless how it is styled, a motion filed within ten days of entry of judgment questioning the correctness of a judgment may be treated as a motion to alter or amend the judgment under Rule 59(e)."). Though plaintiff designated his motion as a Rule 60(b) motion, we note that the parties briefed the merits. And as in Rankin because plaintiff "filed his motion seven days after entry of judgment, we treat it as a motion under Rule 59(e) challenging the entire judgment, including the [merits]." 761 F.2d at 942.

In his motion for reconsideration and memorandum to support the...