Kuhn v. Sulzer Orthopedics, Inc.
| Decision Date | 10 August 2007 |
| Docket Number | No. 06-3576.,06-3576. |
| Parties | Susan F. KUHN; Michael Kuhn, Plaintiffs-Appellants, v. SULZER ORTHOPEDICS, INC., Defendant-Appellee, Tommy Jacks, Individually; Tommy Jacks, P.C.; Mithoff & Jacks, L.L.P., Appellees. |
| Court | U.S. Court of Appeals — Sixth Circuit |
ARGUED: Andrew M. Greenwell, Harris & Greenwell, Corpus Christi, Texas, for Appellants. Thomas S. Kilbane, Squire, Sanders & Dempsey, Cleveland, Ohio, for Appellees. ON BRIEF: Andrew M. Greenwell, Harris & Greenwell, Corpus Christi, Texas, for Appellants. Thomas S. Kilbane, Squire, Sanders & Dempsey, Cleveland, Ohio, David W. Brooks, Shook Hardy & Bacon, Kansas City, Missouri, Manuel Lopez, Shook Hardy & Bacon, Houston, Texas, for Appellees.
Before: BATCHELDER and COLE, Circuit Judges; PHILLIPS, District Judge.*
Appellants Susie and Michael Kuhn (collectively, the "Kuhns") appeal the district court's order denying their motion, brought under Federal Rule of Appellate Procedure 4(a)(6), to reopen the time to file an appeal of the district court's order enjoining them from obtaining certain discovery from Appellee Sulzer Orthopedics, Inc. ("Sulzer") and from prosecuting certain claims in their Texas state-court action against their former lawyer, Appellee Tommy Jacks. The Kuhns argue that the district court abused its discretion in denying their motion to reopen because they satisfied all the requirements of Rule 4(a)(6) and their counsel had no duty to monitor periodically the district court's docket for orders affecting the Kuhns's legal rights that they might have wanted to appeal. For the reasons described below, we AFFIRM the judgment of the district court.
Susie Kuhn is a Texas resident who was an absent class member (i.e., not a named class representative) in a certified settlement class action against Sulzer in connection with allegations that Sulzer's orthopedic hip implants were defective. Kuhn retained Tommy Jacks, a Texas attorney, to represent her against Sulzer.
Numerous lawsuits against Sulzer were filed in state and federal courts throughout the country. These cases were centralized in the Northern District of Ohio on June 19, 2001, by order of the Multi-District Litigation ("MDL") Panel. On May 8, 2002, the district court granted final approval to a negotiated settlement, certified the settlement class, and specified an exclusion date by which all class members who did not wish to be bound by the settlement were required to opt-out.
Jacks advised Kuhn that she could obtain more compensation by remaining part of the class, rather than opting-out and litigating her claims against Sulzer on an individual basis. Although apparently reluctant at first, Kuhn and her husband Michael ultimately took Jacks's advice and agreed to remain part of the class. The Kuhns received $320,000 under the Sulzer settlement in connection with two surgeries that Susie had undergone because of Sulzer's defective hip implants. In addition, the Kuhns were entitled to receive additional compensation (up to $800,000) under the Sulzer settlement, owing to the extraordinary injuries Susie sustained. Jacks, however, failed to timely file Susie's claim under the settlement's "Extraordinary Injury Fund" ("EIF") and therefore she was barred from obtaining the additional relief to which she was entitled.
Thereafter, the Kuhns retained their current counsel, James Harris, and filed an action against Jacks in Texas state court asserting various claims, including legal malpractice. In addition to failing to timely file Susie's EIF claim, the Kuhns alleged that Jacks breached his duties to represent the Kuhns's individual interests, rather than just the interests of the class as a whole. In the course of prosecuting their Texas state-court action against Jacks, the Kuhns sought discovery from nonparty Sulzer about the negotiation and implementation of the Sulzer class-action settlement. Sulzer, believing that the discovery sought by the Kuhns implicated questions exclusively within the continuing jurisdiction of the MDL district court, filed an emergency motion before the MDL court to enjoin the discovery. The MDL court issued a temporary injunction and scheduled a hearing for August 17, 2005. At the August 17 hearing the court ruled that the Kuhns could pursue their malpractice claim against Jacks on the theory that he failed to timely file their EIF claim, but could not pursue their various other claims against Jacks "because to do so would: (1) be tantamount to an appeal of this Court's earlier Orders [regarding the Sulzer class action] and (2) be in breach of § 15.3 of the Settlement Agreement." Thus, to the extent that the Kuhns's state-court case against Jacks represented a collateral attack on the MDL court's judgment in Sulzer, the MDL court enjoined the prosecution of the Kuhns's state-court claims pursuant to its authority to do so under its prior orders and the All Writs Act, 28 U.S.C. § 1651(a).
The MDL court orally issued its ruling on August 17 and stated that a written, appealable order would follow. On October 6, 2005, the Kuhns filed a motion with the court requesting that it issue its written order so that the Kuhns could proceed with their appeal. On October 18, 2005, the district court did so ("Injunction Order").
Under Federal Rule of Appellate Procedure 4(a)(1), the Kuhns had until November 17, 2005—thirty days from the issuance of the district court's Injunction Order-to file their notice of appeal. However, because Harris, the Kuhns's counsel, did not receive notice of the entry of the district court's Injunction Order, the deadline for filing a notice of appeal passed without any action by Harris. Harris first learned about the Injunction Order on January 6, 2006, when a paralegal in his office discovered the order while reviewing the district court's electronic docket. Accordingly, on January 10, 2006, the Kuhns filed a motion to reopen the time to file an appeal under Federal Rule of Appellate Procedure 4(a)(6). The district court denied that motion on March 14, 2006. In re Sulzer Hip Prosthesis & Knee Prosthesis Liab. Litig. ("In re Sulzer"), No. 1:01-CV-9000, 2006 U.S. Dist. LEXIS 10712 (N.D.Ohio Mar. 14, 2006). The district court concluded that "Harris is not entitled to a reopening of the appeal period, because his failure to learn timely of the Court's filing of the October Injunction Order is largely of his own making." Id. at *13. The court reasoned that (1) pursuant to its first MDL Practice and Procedure Order, Harris had a duty to take the "elementary step" of registering his email address with the court's Case Management/Electronic Case Filing ("CM/ECF") system so that he would obtain email notifications of filings, including the court's orders, id. at *10-11; and (2) Harris had an affirmative duty to monitor the docket, especially "where [he] took the step of filing a motion asking the Court to promptly issue the promised ruling." Id. at *13.
On April 12, 2006, the Kuhns appealed the district court's denial of their Rule 4(a)(6) motion to reopen and the district court's issuance of the Injunction Order. Sulzer moved in this Court to dismiss the Kuhns's appeal as to the Injunction Order, which we granted on October 18, 2006. Thus, the only question before us is whether the district court erred in denying the Kuhns's motion to reopen.
A. Standard of Review
We review the district court's denial of the Kuhns's Rule 4(a)(6) motion to reopen the time to appeal under an abuse-of-discretion standard. Martin v. Straub, 27 Fed.Appx. 337, 338 (6th Cir.2001) (citing Nunley v. City of Los Angeles, 52 F.3d 792, 794 (9th Cir.1995)). A district court abuses its discretion when it relies on clearly erroneous findings of fact, when it improperly applies the law, or when it uses an erroneous legal standard. Romstadt v. Allstate Ins. Co., 59 F.3d 608, 615 (6th Cir.1995).
A. Merits
Rule 4(a)(6) was added to the Federal Rules of Appellate Procedure by amendment effective December 1, 1991. It provides:
Reopening the Time to File an Appeal. The district court may reopen the time to file an appeal for a period of 14 days after the date when its order to reopen is entered, but only if all the following conditions are satisfied:
(A) the court finds that the moving party did not receive notice under Federal Rule of Civil Procedure 77(d) of the entry of the judgment or order sought to be appealed within 21 days after entry;
(B) the motion is filed within 180 days after the judgment or order is entered or within 7 days after the moving party receives notice under Federal Rule of Civil Procedure 77(d) of the entry, whichever is earlier; and
(C) the court finds that no party would be prejudiced.
Rule 4(a)(6) "is intended to reduce substantially the risk that any opportunity to appeal will be forfeited by failure to receive notice of the entry of judgment." 16A Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure § 3950.6 (3d ed.1999).
As described above, Rule 4(a)(6) specifies three conditions that must be met before a district court may exercise its discretion to reopen the time to file an appeal. The district court below did not make specific findings as to whether the Kuhns satisfied all these requirements. Appellees, however, do not dispute that the Kuhns did so and, on the record before us, we have no trouble concluding as much: Harris filed an affidavit with the district court stating that he did not receive notice of the district court's entry of its Injunction Order, see Fed. R.App. P. 4(a)(6)(A); the Kuhns filed their motion to reopen within 180 days of the issuance of the Injunction Order and within seven days of discovering the...
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