McGregor v. Board of Com'rs of Palm Beach County, 90-5705

• Citation: 956 F.2d 1017
• Decision Date: 19 February 1992
• Docket Number: No. 90-5705,90-5705
• Parties: Jack McGREGOR, Plaintiff-Appellant, v. BOARD OF COMMISSIONERS OF PALM BEACH COUNTY, Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

Page 1017

956 F.2d 1017

22 Fed.R.Serv.3d 233

Jack McGREGOR, Plaintiff-Appellant, v. BOARD OF COMMISSIONERS OF PALM BEACH COUNTY, Defendant-Appellee.

No. 90-5705.

United States Court of Appeals, Eleventh Circuit.

Feb. 19, 1992.

Mark A. Cullen, West Palm Beach, Fla., for plaintiff-appellant.

Glen J. Torcivia, Michele B. F. Leissle, West Palm Beach, Fla., for defendant-appellee.

Appeal from the United States District Court for the Southern District of Florida.

Before DUBINA, Circuit Judge, HENDERSON and CLARK, ^* Senior Circuit Judges.

PER CURIAM:

The plaintiff-appellant, Jack McGregor, appeals an order from the United States District Court for the Southern District of Florida awarding attorney's fees and costs incurred by the defendant-appellee following the voluntary dismissal of his civil rights action and the denial of his motion to withdraw that earlier voluntary dismissal. Concluding that the order is a final judgment and the notice of appeal was timely filed, we hold that the district court did not abuse its discretion in requiring the payment of costs and attorney's fees or in denying McGregor's request to withdraw his voluntary dismissal. Therefore, we affirm the judgment of the district court.

I.

McGregor filed this civil rights action in four counts against the Board of Commissioners for Palm Beach County (hereinafter the county), charging in Count I that his dismissal as the county's internal auditor infringed his due process rights without first affording him a hearing. Count II alleged a denial of his first amendment right of free speech. In Count III he claimed that the commissioners' decision to eliminate his job constituted a breach of his employment contract. Finally, in Count IV he urged that his dismissal was in retaliation for disclosing certain financial errors committed by the commissioners in violation of the Florida Whistle-Blower's Act. ¹ In December of 1987, the district court granted the county's motion to dismiss Count I for failure to state a claim because it was clear from his contract with the county that McGregor was an "at-will" employee and, consequently, possessed no property interest in his employment.

On July 19, 1989, shortly before the trial on the remaining counts, McGregor filed a motion for voluntary dismissal pursuant to Fed.R.Civ.P. 41. ² In his motion to dismiss, he stated that "[p]laintiff, per Fed.R.Civ.P. 41, as a condition of dismissal, will agree to pay defendant's costs incurred in this action to date." R1, Tab 41. The basis for this motion to dismiss was the fact that his attorney had recently relocated his office and was not prepared to go forward with the case. Id. The county filed its response objecting to the motion without the imposition of certain conditions on the dismissal of the action. Among the conditions proposed by the county was the payment of the defendant's attorney's fees and costs incurred in the defense of the suit. On August 3, 1989, the district court granted McGregor's motion for voluntary dismissal without prejudice and retained jurisdiction "for the purpose of entertaining a proper application for costs and/or attorney's fees." The order was not entered on the docket sheet until August 14, 1989. ³ On September 6, 1989, the county filed a motion for attorney's fees and costs pursuant to 42 U.S.C. § 1988, Fed.R.Civ.P. 11 and two state statutory provisions invoked by the plaintiff's complaint. McGregor filed his response opposing the award on September 15, 1989, contending that Rule 11 sanctions were not authorized because his claims were not without a legal or factual basis.

In an order dated April 3, 1990, 130 F.R.D. 464, the district court concluded that the county was entitled to attorney's fees under § 1988 and Rule 11 for pursuing a legally insufficient claim in Count I and pursuant to two state fee-shifting statutes as the prevailing party on Counts III and IV. A separate judgment memorializing the total award of $10,812.00 was entered on the docket sheet on April 11, 1990. On April 17, 1990, McGregor filed a motion for rehearing and a motion to amend the judgment. The district court denied the motions on July 23, 1990. The order was entered on the docket sheet two days later, July 25, 1990.

II

On appeal McGregor asserts four grounds of error. First, he alleges that the district court abused its discretion in denying his motion to withdraw the voluntary dismissal of his complaint once the court awarded costs and attorney's fees. Second, he contends that the district court erred in dismissing Count I for failure to state a claim. Third, he charges that the court abused its discretion by awarding attorney's fees pursuant to Fed.R.Civ.P. 11 ⁴ because there was a sufficient basis in law or fact to support the cause of action alleged in Count I. Fourth, it was error, he claims to award attorney's fees under 42 U.S.C. § 1988 ⁵ respecting Count I.

Before reaching the merits of these assignments of error, we must examine our jurisdiction to review the award of costs and attorney's fees. During oral argument certain jurisdictional questions were posed sua sponte by the court. At that time, we requested the parties to file supplemental briefs concerning the following specific jurisdictional issues:

(1) Whether this appeal from the July 23, 1990 order denying McGregor's motion for rehearing of the judgment dated April 3, 1990 awarding attorney's fees and costs brings up for review the final order dated August 3, 1989, dismissing the case without prejudice;

(2) Whether McGregor's motion for rehearing of the district court's judgment for attorney's fees and costs tolled the time for appeal from the judgment; and

(3) Whether the district court's award of attorney's fees and costs to the defendant as a condition of granting the plaintiff's motion for voluntary dismissal is appealable.

After reviewing the briefs filed by counsel and the relevant case law, we conclude that the appeal of the judgment for attorney's fees and costs does not authorize a reexamination of the final order dismissing the action. We also hold that the motion for rehearing was timely filed so as to toll the time for appealing the final order granting the county's motion for attorney's fees and costs and, as a result, we do have jurisdiction to review the district court's judgment awarding attorney's fees and costs.

In McGregor's notice of appeal he states that he is appealing the final order "entered [on] this action on the 23rd day of July, 1990." R1, Tab 54. However, in his quest to overturn the district court's order granting attorney's fees on Count I pursuant to Rule 11 and § 1988, McGregor argues that the court improperly dismissed Count I for failure to state a claim in its order entered on December 15, 1987. By relying on the December 15, 1987 order, McGregor was in reality attempting to challenge the order dated August 3, 1989 and entered on August 14, 1989 granting the motion for voluntary dismissal without prejudice. If it was a final order for purposes of 28 U.S.C. § 1291, then McGregor should have filed his notice of appeal within 30 days from the entry of that judgment. See Fed.R.App.P. 4. An order granting a plaintiff's motion for voluntary dismissal pursuant to Rule 41(a)(2) " 'qualifies as a final judgment for purposes of appeal.' " Yoffe v. Keller Indus., Inc., 580 F.2d 126, 129 (5th Cir.1978) (quoting LeCompte v. Mr. Chip, Inc., 528 F.2d 601, 603 (5th Cir.1976)). Thus, the only way that McGregor could seek review of the order dated August 3, 1989 and entered on August 14, 1989 granting his motion for a voluntary dismissal was to file a notice of appeal within 30 days after the order was entered on the docket sheet. See Fed.R.Civ.P. 58 and 79(a). The notice of appeal was filed on August 22, 1990, more than a year after the order granting the motion to dismiss. Consequently, we lack jurisdiction to entertain an appeal of the final order granting McGregor's motion for a voluntary dismissal.

The second jurisdictional question raised during oral argument was whether the April 17, 1990, motion for rehearing of the order dated April 3, 1990 and entered on the docket on April 11, 1990 was timely filed, thus tolling the time for the filing of the appeal. This court previously held that a motion for rehearing is interpreted as a Fed.R.Civ.P. 59(e) motion. Stallworth v. Shuler, 758 F.2d 1409, 1410 (11th Cir.1985). Fed.R.Civ.P. 59(e) states that "[a] motion to alter or amend the judgment shall be served not later than 10 days after entry of the judgment." Id. "A timely motion under Fed.R.Civ.P. 59(e) to alter or amend a judgment suspends the finality of the judgment for purposes of appeal and tolls the time for taking appeal." Stallworth, 758 F.2d at 1410. Therefore, if McGregor's motion for rehearing, construed as a motion to amend or alter the April 3, 1990 judgment awarding attorney's fees and costs was timely filed and the notice of appeal was submitted within 30 days of the judgment denying the motion, then there is jurisdiction to hear the appeal.

The court rendered its judgment on April 3, 1990. It was entered on the docket sheet on April 11, 1990. McGregor served his motion for a rehearing on April 17, 1990, well within the ten-day period for serving a motion to alter or amend the judgment. Based on these events, the service of the motion on April 17, 1990 tolled the time for filing an appeal. The notice of appeal was filed on August 22, 1990. Both parties agree that the notice of appeal was filed within 30 days of the denial of the motion for rehearing on July 23, 1990.

Finally, the county urges that we do not have jurisdiction to hear any appeal arising from the district court's order granting McGregor's motion for voluntary dismissal conditioned solely on the payment of attorney's fees and costs since "awarding attorney's fees and costs did not legally prejudice" McGregor. Appellee's Supplemental Brief at 1. As a general rule, a...