Thomassen v. U.S., 85-6294

• Decision Date: 30 December 1987
• Docket Number: No. 85-6294,85-6294
• Citation: 835 F.2d 727
• Parties: Elmer H. THOMASSEN, Plaintiff-Appellant, v. UNITED STATES of America, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 727

835 F.2d 727

9 Fed.R.Serv.3d 1132

Elmer H. THOMASSEN, Plaintiff-Appellant, v. UNITED STATES of America, et al., Defendants-Appellees.

No. 85-6294.

United States Court of Appeals Ninth Circuit.

Argued and Submitted April 16, 1987.

Decided Dec. 30, 1987.

Elmer H. Thomassen, Cal., pro. per.

Joan I. Oppenheimer, Asst. U.S. Atty., Washington, D.C., for defendants-appellees.

Appeal from the United States District Court for the Central District of California.

Before FERGUSON, HALL and WIGGINS, Circuit Judges.

FERGUSON, Circuit Judge:

Elmer Thomassen, appearing pro se, appeals the final judgment of the district court, entered July 26, 1985, dismissing his complaint for declaratory relief in the tax sale of his property. Thomassen also appeals from orders entered July 26, 1985, finding him in contempt for failure to pay attorney fees awarded to the United States, confining him for contempt, and denying separate motions to amend orders of the court dated May 6, 1985 ("the May 6 order"), and June 4, 1985 ("the June 4 order").

In the May 6 order the court granted attorney fees to the United States and denied Thomassen's motion to vacate the dismissal of his complaint. In the June 4 order, the court denied Thomassen's application for an extension of time in which to appeal a collateral order issued by another district court judge, concerning disqualification of the judge assigned to the case. We affirm in part, reverse in part, and remand to the district court for further proceedings in accordance with this opinion.

I.

This case has a complex and convoluted history. On October 24, 1984, Elmer H. Thomassen, proceeding pro per, filed a complaint seeking to enjoin the sale of his orange grove property in satisfaction of tax court judgments. Thomassen claimed that the minimum bid set by the government seriously undervalued the property. Thomassen also sought a declaration of his rights with respect to the property. At an initial hearing, the sale was continued for approximately one month to permit further filing by Thomassen. The sale eventually took place on November 16, 1984, without any further action by Thomassen.

On January 14, 1985, the government moved to dismiss the complaint as moot. The motion was granted on January 21, 1985, and entered the following day. Thereafter, on February 1, 1985, Thomassen filed a motion to vacate the dismissal pursuant to Fed.R.Civ.P. 59(e) on the ground that the court had dismissed the complaint before Thomassen's time for filing a response had expired and on the ground that the court had failed to hold a hearing. Thomassen also sought to disqualify the district court judge from deciding the motion. ¹ The judge denied the motion to vacate the dismissal and granted attorney fees in the amount of $500 to the government on March 4, 1985. The order was entered May 7, 1985. ²

Thomassen moved to alter or amend the attorney fee award on May 17, 1985. This motion was heard July 15 and denial entered July 26, 1985. Thomassen also was found in contempt of court for failing to pay the attorney fees awarded to the United States and was ordered confined. Thomassen was confined for two days and was released upon payment of $500 which he allegedly borrowed from his daughter.

II.

On appeal, Thomassen makes the following arguments. First, Thomassen contends that the district judge violated his right to due process by dismissing his complaint prior to the running of the ten-day period during which he was entitled to file an opposition to the motion to dismiss. Second, Thomassen claims that the May 6 order imposing attorney fees was erroneous because the government's attorney fees were incurred as a result of the district court error. The court awarded the $500 fee to the government because it concluded that Thomassen had no support for his motion to vacate the dismissal of his complaint. Thomassen asserts, however, that he did not litigate in bad faith because he made a colorable claim of clear error in his motion: the court dismissed his complaint before his time for responding had expired. Third, Thomassen argues that the district court erred in confining him for contempt because the court should not have ordered him to pay the attorney fees. Finally, Thomassen challenges the denial of his motion to disqualify the judge and claims that the judge erred by continuing to hear motions while the disqualification motion was pending.

The government argues that the appeal on the issues involving contempt is moot for lack of a live controversy. The government contends that the appeal of the other orders is barred for lack of jurisdiction.

III.

A primary issue is whether we have jurisdiction to consider Thomassen's claims. We limit our jurisdictional inquiry here to the claims other than those relating to and arising out of the contempt of court charge.

The government asserts that we lack jurisdiction because, on May 3, 1985, Thomassen filed a notice of appeal of the court's minute order, issued March 4, 1985, and this appeal was dismissed by the Clerk of the Court for failure to prosecute on March 22, 1986. See 9th Cir.R. 19(b).

Although Thomassen filed a notice of appeal on May 3, 1985, the district court did not enter its final order and judgment until May 7, 1985. Thereafter, Thomassen filed a timely motion to amend on May 17, 1985, pursuant to Fed.R.Civ.P. 59. Under the Federal Rules of Appellate Procedure, when a motion timely served under Rule 59 is filed, the time for appeal from the original order runs from the entry of the order denying or granting such motion. See Fed.R.App.P. 4(a)(4). Rule 4(a)(4) states that a "notice of appeal filed before the disposition of [the Rule 59 motion] shall have no effect." Thus, because Thomassen filed a Rule 59 motion on May 17, following the court's entry of judgment on May 7, he was justified in abandoning his notice of appeal filed May 3, 1985. Thomassen preserved the issues he sought to appeal on May 3, 1985, by timely filing a new notice of appeal after the court issued the order disposing of his Rule 59 motion on July 26, 1986. We conclude, therefore, that this court has jurisdiction.

IV.

Thomassen contends that the district court deprived him of due process when it dismissed his complaint before the time for answering the government's motion to dismiss had expired. We agree with Thomassen that the district court erred but we do not find the error to be of constitutional magnitude.

The United States served its motion to dismiss Thomassen's complaint by mail on January 14, 1985. The district court granted the motion before Thomassen responded, and dismissed the complaint with prejudice. The order was signed January 21, and entered January 22. The district court erred because it was obliged to allow Thomassen ten days in which to file an opposition to the government's motion to dismiss, since service of the motion was by mail. C.D.Cal.R. 7.6; Fed.R.Civ.P. 6(e). The order was signed January 21, only seven days following the date of service by mail.

Despite the court's error, Thomassen was not deprived of due process. Thomassen filed a motion to alter the order on February 1, 1985. See Fed.R.Civ.P. 59(e). The motion provided Thomassen with the opportunity to have the court consider any prejudice to him resulting from the premature dismissal. See Lien Ho Hsing Steel Enter. Co. v. Weihtag, 738 F.2d 1455, 1461 (9th Cir.1984) (no due process deprivation where plaintiff did not have an initial hearing before the judge who dismissed, but later had and took advantage of an opportunity to be heard by that judge in an opposition to a motion).

Because Thomassen had an opportunity to challenge the original dismissal, we find that he was not deprived of due process. We do, however, review the district court's denial of Thomassen's 59(e) motion for abuse of discretion. See Backlund v. Barnhart, 778 F.2d 1386, 1388 (9th Cir.1985). Thomassen presented no reasons why he believed that the complaint was improperly dismissed and why vacation of the dismissal was appropriate on the merits. He merely relied on procedural error.

The district court examines a claim of error in accordance with Fed.R.Civ.P. 61, which states:

No error ... in anything done or omitted by the court ... is ground for ... vacating ... a judgment or order, unless refusal to take such action appears to the court inconsistent with substantial justice. The court at every stage of the proceeding must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties.

Because Thomassen failed to allege how his rights may have been affected, the court did not abuse its discretion when it concluded that any error it made did not affect Thomassen's substantial rights.

Further, we find that any argument Thomassen may have made to the court would have been insufficient to justify vacating the dismissal. Thomassen already had an opportunity to enjoin the sale, but he inexplicably waived that opportunity. We recognize that he may have opposed the dismissal of his complaint in an effort to secure a declaratory judgment that the value of his property was greater than the minimum bid, and in an attempt to overturn the sale. However, a judicial sale ordinarily will not be overturned for inadequacy of price alone. See Citibank N.A. v. Data Lease Fin. Corp., 645 F.2d 333, 339 (5th Cir.1981).

V.

Thomassen also claims that the May 6 order imposing attorney fees was erroneous because the government's attorney fees were incurred as a result of the district court's error. The court awarded the $500 attorney fees when it concluded that Thomassen had no support for his motion to vacate the dismissal of his complaint. We review an award of attorney fees for abuse of discretion. See Beaudry Motor Co. v. Abko Properties, Inc., 780 F.2d 751, 756 (9th Cir.), cert. denied, --- U.S. ----, 107 S.Ct. 100, 93 L.Ed.2d 51 (1986).

We disagree with the district court's...