                                                           F I L E D
                                                     United States Court of Appeals
                                                             Tenth Circuit
                  UNITED STATES CO URT O F APPEALS
                                                         February 16, 2007
                         FO R TH E TENTH CIRCUIT        Elisabeth A. Shumaker
                                                            Clerk of Court

STICH TING M AY FLOW ER
RECR EA TIONAL FO NDS;
STICH TING M AY FLOW ER
M OUNTAIN FO NDS, Netherlands
associations,

      Plaintiffs-Counter-
      Defendants-Appellants,
                                                No. 05-4307
v.                                      (D.C. No. 2:04-CV-925-DAK)
                                                  (D. Utah)
C ITY O F PA RK CITY , U TA H ,

      Defendant-Appellee,

UNITED PARK CITY M IN ES CO.,
a Delaware corporation,

      Defendant-Counter-Claimant-
      Third-Party-Plaintiff-
      Appellee,

v.

ARIE CORNELIS BOGERD, an
individual and citizen of Hei-en
Boeicop, Netherlands,
M AYFIN ANANCE CV, a
Netherlands commanditaire
vennotschap; STICH TING BEHEER
M AY FLOW ER PROJECT,
a Netherlands Foundation,

      Third-Party-Defendants.
                           OR D ER AND JUDGM ENT *


Before PO RFILIO, B AL DOC K , and EBEL, Circuit Judges.




      Plaintiffs appeal from an order dismissing their claims but not dismissing

the counterclaims filed against them by United Park City M ines Co. (United

Park). United Park and the City of Park City (the City) moved to dismiss the

appeal for lack of jurisdiction and filed motions for sanctions for filing a

frivolous appeal. W e conclude that w e lack jurisdiction over the appeal.

Accordingly, the appeal is dismissed, the motions for sanctions are granted, and

the sanctions issue is remanded to the district court to determine the sanction

amount.

      “Under 28 U.S.C. § 1291, this court has jurisdiction over all final orders of

the district court. A final order ends litigation on the merits and leaves nothing

for the district court to do but execute the judgment.” Rodriguez v. IBP, Inc.,

243 F.3d 1221, 1227 (10th Cir. 2001) (quotation omitted). Because the district


*
       After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.

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court’s order did not dispose of all claims, this court directed plaintiffs to obtain

an order from the district court either certifying the order for appeal under

Fed. R. Civ. P. 54(b) or explicitly resolving the remaining counterclaims. The

district court then issued an order expressly declining to certify its earlier order

under R ule 54(b) or otherw ise resolving the pending counterclaims.

      Plaintiffs maintain that they are entitled to an immediate appeal “on a

defense of immunity from suit.” Plaintiff’s Feb. 9, 2006 letter to clerk, at 1.

Plaintiffs appear to argue that they are entitled to qualified immunity (or a

defense similar to qualified immunity), which permits an interlocutory appeal, see

M itchell v. Forsyth, 472 U.S. 511, 530 (1985). But they have cited no legal

authority that supports this position. Qualified immunity generally is available

only to those acting under color of state law, not to private actors such as

plaintiffs. Cf. Richardson v. M cKnight, 521 U.S. 399, 412 (1997) (holding

private prison guards, unlike those employed by government, not entitled to

qualified immunity in defense of §1983 action). Therefore, plaintiffs’

qualified-immunity argument does not provide a basis for appellate jurisdiction.

The order appealed from is not a final order and this court lacks jurisdiction. See

Lewis v. B.F. Goodrich Co., 850 F.2d 641, 645-46 (10th Cir. 1988) (en banc).

      As noted, United Park and the City have moved for sanctions against

plaintiffs and/or their attorney for filing a frivolous appeal. They seek to recover

their respective appellate attorney fees plus double costs, as authorized by

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28 U.S.C. § 1927 and Fed. R. Civ. P. 38. Based on our conclusion that appellate

jurisdiction is clearly lacking, we agree that this appeal is frivolous and we award

reasonable attorney fees and costs for filing a frivolous appeal.

      W e remand the issue of reasonableness to the district court to determine the

amount to be awarded. See Hoyt v. Robson Companies, Inc., 11 F.3d 983, 985

(10th Cir. 1993) (“[A]n application for appeal-related attorneys’ fees must first be

m ade to our court. Should w e decide that it is appropriate to award such fees, we

may then remand to the district court to determine an award of reasonable fees.”).

In addition, the district court is directed to determine how the sanction shall be

apportioned between plaintiffs and their counsel. If the appeal was taken upon

the insistence of plaintiffs, they may be liable for a contribution to the sanctions

awarded. On the other hand, if the court finds that counsel undertook the appeal

without the insistence of his clients, counsel shall alone bear the costs of the

sanctions.

      This appeal is DISM ISSED for lack of jurisdiction. The motions filed by

United Park and the City for sanctions are GR AN TED. The case is REM AN DED

to the district court to determine the sanction amount and the responsible parties

in accordance with this order and judgment.


                                                     Entered for the Court

                                                     John C. Porfilio
                                                     Circuit Judge

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