Filed: Sep. 09, 2004
Latest Update: Mar. 02, 2020
Summary: Opinions of the United 2004 Decisions States Court of Appeals for the Third Circuit 9-9-2004 Beam v. Bauer Precedential or Non-Precedential: Precedential Docket No. 03-1874 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2004 Recommended Citation "Beam v. Bauer" (2004). 2004 Decisions. Paper 284. http://digitalcommons.law.villanova.edu/thirdcircuit_2004/284 This decision is brought to you for free and open access by the Opinions of the United States Cour
Summary: Opinions of the United 2004 Decisions States Court of Appeals for the Third Circuit 9-9-2004 Beam v. Bauer Precedential or Non-Precedential: Precedential Docket No. 03-1874 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2004 Recommended Citation "Beam v. Bauer" (2004). 2004 Decisions. Paper 284. http://digitalcommons.law.villanova.edu/thirdcircuit_2004/284 This decision is brought to you for free and open access by the Opinions of the United States Court..
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Opinions of the United
2004 Decisions States Court of Appeals
for the Third Circuit
9-9-2004
Beam v. Bauer
Precedential or Non-Precedential: Precedential
Docket No. 03-1874
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2004
Recommended Citation
"Beam v. Bauer" (2004). 2004 Decisions. Paper 284.
http://digitalcommons.law.villanova.edu/thirdcircuit_2004/284
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
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PRECEDENTIAL O’NEILL,* District Judge.
THE UNITED STATES COURT OF
APPEALS FOR THE THIRD CIRCUIT (Filed September 9, 2004)
___________
Donald A. Bailey, Esq.
Nos. 03-1874, 03-2194 4311 North 6th Street
___________ Harrisburg, PA 17110
Counsel for Appellant
BEVERLY BEAM,
Appellant, Melinda B. Kaufmann, Esq.
Stock & Leader
v. 221 West Philadelphia Street
Susquehanna Commerce Center
MARC BAUER; GLENN W . East Building
ZEHNER; CAPITAL AREA York, PA 17404
INTERMEDIATE UNIT; SCOTT Counsel for Appellees Bauer, Zehner,
DOWNEY; ROGER MORRISON; Capitol, and Downey
DAVID L. GRAYBILL;
MICHAEL SWEGER Kathryn L. Simpson, Esq.
Mette, Evans & Woodside
___________ 3401 North Front Street
P.O. Box 5950
Harrisburg, PA 17110-0950
ON APPEAL FROM THE UNITED Counsel for Appellee Morrison
STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF Spero T. Lappas, Esq.
PENNSYLVANIA Melanie L. Erb, Esq.
Serratelli, Schiffman, Brown & Calhoun
(D.C. Civil No. 02-cv-01797) 2080 Linglestown Road
District Judge: The Honorable Suite 201
Sylvia H. Rambo Harrisburg, PA 17101-9445
Counsel for Appellees Graybill and
___________ Sweger
Submitted Under Third Circuit
LAR 34.1(a)
January 30, 2004 *H onorable Thomas N. O’Neill, Jr.,
Senior District Judge for the United
States District Court for the Eastern
BEFORE: NYGAARD and FUENTES, District of Pennsylvania, sitting by
Circuit Judges, and designation.
___________ dismissed. The District Court dismissed
Beam’s first lawsuit for failure to state a
OPINION claim upon which relief could be granted.
___________ We affirmed. Beam v. Downey, 54 Fed.
Appx. 113 (3d Cir. 2002). But, while the
first case was pending on appeal, Beam
NYGAARD, Circuit Judge.
filed a second suit. The second suit added
Judge Sylvia Rambo, of the United additional defendants, a few new legal
States District Court for the M iddle theories, but still contained nothing of
Dis tri c t o f P e n n s yl v a n i a, f o u nd substance or merit. In its opinion
plaintiff/appellant’s claim to be barred by explaining the dismissal order, the District
the res judicata doctrine; she further Court found that Beam’s second complaint
concluded that the suit was frivolous, and was “intended to harass, cause unnecessary
then dismissed it. She also imposed Rule and needless increase in the cost of
11 sanctions on plaintiff’s attorney, Don litigation, . . . that factual contentions have
Bailey, who was also appellant’s counsel no evidentiary support . . . that the claims
on appeal. On Beam’s appeal challenging and legal contentions . . . are not warranted
the dismissal and the sanctions, counsel by existing law nor by non-frivolous
failed to offer any argument, facts, or law argument for the extension, modification,
to show that the claim was not frivolous, or reversal of existing law or for the
or that the Court had in some way erred. establishment of new law.” Memorandum
H e n c e , w e affirmed, conclud ing and Order of the District Court (Mar. 25,
additionally in our opinion that the appeal 2003). The District Court also ordered
was also frivolous. Appellees now ask Beam’s attorney, Don Bailey, and his law
that we award damages pursuant to firm to pay Rule 11 sanctions to the
Federal Rule of Appellate Procedure 38, to appellees. These findings and conclusions
compensate them for the financial loss were fully supported by the record, so we
they incurred defending the dismissal affirmed. Beam v. Bauer, 88 Fed. Appx.
order. The request presents us with three 523 (3d Cir. 2004).
issues: Should we award damages? If so,
The decision whether to appeal from an
in what amount? And, against whom? We
order of the District Court is not a matter
will award damages in the amounts
to be taken lightly by either a losing party
requested by the various appellees under
or her counsel. An appeal is not just the
Rule 38, and against counsel for appellant.
procedural next step in every lawsuit.
A brief procedural history of this, and Neither is it an opportunity for another
an earlier lawsuit filed by Beam, is both “bite of the apple,” nor a forum for a
instructive and germane to the issue in this losing party to “cry foul” without legal or
motion. Beam has twice brought lawsuits factual foundation. An appeal is a serious
that the District Court summarily matter because it is a claim of error by the
2
District Court and an attack on the validity (3d Cir. 1990) (citing the Advisory
of its order. Consequently, if the appeal is Committee Note to Rule 38).
wholly lacking in merit, there are
The rationale of Rule 38 is simply that
consequences. Appellant herein now
when parties suffer pecuniary loss by
must face them.
paying attorney fees to defend a valid
Rule 38 states that “[i]f a court of judgment against a frivolous appeal, they
appeals determines that an appeal is are as entitled to be awarded damages as is
frivolous, it may, after a separately filed a victim seeking compensation for any
motion or notice from the court and other financial loss incurred by the acts of
reasonable opportunity to respond, award a tortfeasor. It is a rule designed to make
just damages and single or double costs to whole a party victimized by needlessly
the appellee.” Fed. R. App. P. 38. Of having to expend money for attorney fees
course, we recognize that not every claim to protect a valid judgment from a baseless
dismissed as frivolous is frivolous. attack. That is precisely what has
D i st r ic t C ourts oc casio nally err. happened in this matter.
Nonetheless, we state with equal emphasis
Recently, when discussing Rule 38
that an appeal from a frivolous claim is
damages, we cautioned counsel that a
likewise frivolous. See A-Abart Elec.
finding by a District Court that a lawsuit is
Supply, Inc. v. Emerson Elec. Co., 956
frivolous should serve as notice to the
F.2d 1399, 1407 (7th Cir. 1992). It is
parties and their attorney to exercise
counsel’s responsibiliy to make the
caution, pause, and “devote additional
distinction.
examination to the legal validity and
Although often mistakenly referred to factual merit of his contentions.” Huck,
as both, an award under Rule 38 is neither 106 F.3d at 52. Here, despite many cues
a sanction nor a punishment. Huck v. from us and the District Court that her
Dawson,
106 F.3d 45, 52 (3d Cir. 1997) cause was wholly meritless, Beam and her
(“Rule 38 is not a sanctions provision.”). counsel have persisted before the District
Nor is appellant’s intent a consideration. Court and again before us. Additionally,
Appellant is like any other tortfeasor. It as we noted in our opinion in Beam v.
does not matter whether she filed this Bauer, “[i]n her haste to file [this] lawsuit,
appeal out of malice, ignorance, or deceit; Beam disregarded the then-pending appeal
it is the merit of her argument on appeal before this Court. Beam would have been
that determines whether she carries the well-advised to await our opinion, which
day. It is not a punitive provision. ultimately affirmed the result in the first
“Damages [under Rule 38] are awarded by case.” 88 Fed. Appx. 523, 526 (3d Cir.
the court in its discretion . . . as a matter of 2004). Our affirmation of the District
justice to the appellee.” See Hilmon Co. Court’s first dismissal was lost on counsel,
(V.I.) Inc. v. Hyatt Int’l,
899 F.2d 250, 253 who had already filed the second suit. Had
counsel been paying attention, our result
3
could have given him notice of the fact damages upon counsel when a frivolous
that he had failed to discern on his own; appeal stems from counsel’s professional
that his client’s claims were wholly error. See Nagle v. Alspach, 8 F.3d 141,
without legal or factual substance. We 145 (3d Cir. 1993); see also A-Abart, 956
thus will award damages to appellees. F.2d at 1407.
In her response to the request for In Hilmon we set this standard:
damages, Beam does not raise an issue as
[A]ttorneys have an affirmative
to the propriety of the amount of damages
obligation to research the law and
requested. Moreover, because this is a
to determine if a claim on appeal
damage issue, and because there is neither
[has merit]. We conclude that if
anything shocking in the amount
counsel ignore or fail in this
requested, nor do the fees appear at all
obligation to their client, they do so
inflated, there is no need for us to raise an
at their peril and may become
issue as to the amount sua sponte. Simply
personally liable to satisfy a Rule
stated, appellees have incurred costs and
38 award. The test is whether,
expenses defending a valid judgment
following a thorough analysis of
against a frivolous appeal, and are entitled
the record and careful research of
to be made whole. Hence, we will award
the law, a reasonable attorney
damages in the amount expended by
would conclude that the appeal is
appellees.
frivolous.
Having decided that both the claim for
Hilmon, 899 F.2d at 254.
fees and the statement ad damnum are
proper, we must determine whether to In this case it would have been obvious
place the responsibility for payment with to a reasonable attorney that an appeal
Beam, her counsel, or both. Beam “had a from the District Court’s order was
right to rely upon [her] attorney for sound frivolous, unless he had law or facts to
advice.”
Hilmon, 899 F.2d at 254. support a conclusion that the District Court
Although an unrepresented litigant should judge had erred. By failing to appreciate
not be punished with damages for his this, Beam’s counsel exposed himself to
failure to appreciate legal subtleties in personal liability for Rule 38 damages.
legal arguments, Hughes v. Rowe, 449 Moreover, in his response to the motion
U.S. 5, 15 (1980), we have consistently for damages, counsel presents no reason to
held represented clients, and specifically conclude that the responsibility for the
their counsel, to a higher standard. appeals lies anywhere but with him.
Moreover, because it would be unfair to Hence, we conclude that it is appropriate
charge a damage award against a party that counsel bear the burden of paying the
who has relied upon her counsel’s damages.
expertise in deciding whether to appeal,
we have routinely imposed Rule 38
4
Finally, counsel for Beam contends in
a motion to strike the appellees’ Rule 38
motion that Beam is entitled to an
evidentiary hearing. We disagree. In her
response to the motion for Rule 38
damages, Beam raises no evidentiary
issues that would indicate to us any need
for a hearing to find facts. We will deny
Beam’s motion to strike.
In sum, and upon consideration of the
appellees’ motions, the appellant’s
opposition thereto, and a thorough review
of the record, we will award damages to
appellees’ in the amounts requested, all in
accord with the attached order.
5
