                                                               F I L E D
                                                        United States Court of Appeals
                                                                Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                               MAY 26 2000
                              TENTH CIRCUIT
                                                             PATRICK FISHER
                                                                    Clerk

BENJAMIN J. CHAVEZ, and VIOLA
F. CHAVEZ, doing business as Santa
Fe Southwest Jewelry,

     Plaintiffs-Appellants,
v.                                             No. 98-2144
BENNETT PROPP, CARMELITA                (D.C. No. CIV-96-1656-SC)
HOUTMAN, and DEBI MCNEIL,                        (D.N.M.)

     Defendants-Appellees.




BENJAMIN J. CHAVEZ, doing
business as Santa Fe Southwest
Jewelry; VIOLA F. CHAVEZ, doing
business as Santa Fe Southwest
Jewelry,

     Plaintiffs,
v.                                             No. 99-2218
BENNETT PROPP; CARMELITA                  (D.C. No. CIV-96-1656)
HOUTMAN; DEBI MCNEIL,                            (D.N.M.)

     Defendants-Appellees,



PAUL LIVINGSTON,

     Attorney-Appellant.
                            ORDER AND JUDGMENT *


Before BALDOCK, KELLY, and BRISCOE, Circuit Judges. **


      Plaintiffs Benjamin J. and Viola F. Chavez and their attorney, Paul

Livingston, challenge the district court’s award of attorney’s fees and sanctions to

Defendants Bennett Propp, Carmelita Houtman, and Debi McNeil. Defendants

filed a motion to dismiss appeal no. 98-2144 for lack of jurisdiction, and we grant

that motion to dismiss. In appeal no. 99-2218, we exercise jurisdiction pursuant

to 28 U.S.C. § 1291 and affirm.

                                             I.

      The underlying facts of this case are set forth in   Chavez v. Propp , No.

97-2309, 1999 WL 1015540, at *1-*2 (10th Cir. Nov. 9, 1999) (unpublished

disposition). After several battles in New Mexico state court regarding rights to

sell crafts on the Santa Fe Plaza, Plaintiffs filed a complaint in federal district

court alleging that Defendants conspired with state court judges to deprive

      *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      **
         After examining the briefs and appellate record, the panel has
determined unanimously that oral argument would not materially assist the
determination of this appeal. See Fed. R. App. P. 34(a)(2)(c); 10th Cir. R.
34.1(G). The case is therefore ordered submitted without oral argument.

                                            -2-
Plaintiffs of their civil rights. In August 1997, the district court dismissed

Plaintiffs’ complaint, noting that it contained insufficient allegations of state

action. The district court dismissed the 42 U.S.C. §§ 1981, 1983, 1985, and 1986

claims under Fed. R. Civ. P. 12(b)(6) for failure to state a claim upon which relief

can be granted. Also, the district court dismissed the 42 U.S.C. § 2000a claim for

discrimination in a public accommodation for lack of subject matter jurisdiction

under Fed. R. Civ. P. 12(b)(1) because Plaintiffs failed to exhaust their

administrative remedies.

       Defendants subsequently filed a motion for attorney’s fees under 42 U.S.C.

§ 1988(b). In appeal no. 97-2309, we affirmed the district court’s dismissal of the

complaint but declined to reach the attorney’s fee issue.         Chavez , 1999 WL

1015540, at *3. While appeal no. 97-2309 was pending, the district court found

Plaintiffs’ complaint “frivolous, unreasonable, and without foundation” and found

Defendants, as prevailing parties, entitled to attorney’s fees.     1
                                                                        On May 7, 1998,

the district court ordered the payment of attorney’s fees in the amount of



       1
         Plaintiffs argue that the district court lacked jurisdiction to award
attorney’s fees or sanctions during the pendency of an appeal on the merits of the
dismissal because the merits are intertwined with the attorney’s fee issue. We
disagree: “The law is well settled the district judge retains jurisdiction over the
issue of attorneys’ fees even though an appeal on the merits of the case is
pending.” City of Chanute, Kansas v. Williams Natural Gas Co.        , 955 F.2d 641,
658 (10th Cir. 1992), overruled on other grounds , Systemcare Inc. v. Wang Lab.
Corp. , 117 F.3d 1137 (10th Cir. 1997).

                                             -3-
$5871.50 to Defendants, but stayed that order sua sponte pending a magistrate

judge’s evaluation of sanctions pursuant to Fed. R. Civ. P. 11. Plaintiffs

attempted to appeal the May 7 order by filing a notice of appeal on May 26, 1998.

       In November 1998, a magistrate judge recommended imposing sanctions of

$2000 on attorney Livingston. After reviewing the objections to the magistrate

judge’s proposed findings and recommended disposition, on June 16, 1999, the

district court ordered attorney Livingston to pay sanctions of $5000 into the

registry of the court and lifted the stay on the order to pay attorney’s fees to

Defendants in the amount of $5871.50. Livingston filed a notice of appeal of the

June 16 order on July 7, 1999.

                                             II.

       In appeal no. 98-2144, Plaintiffs attempt to appeal the district court’s May

7 order, which set an amount of attorney’s fees but stayed that order pending a

determination of Rule 11 sanctions. Defendants filed a motion to dismiss appeal

no. 98-2144 for lack of jurisdiction. We have jurisdiction to review “final

decisions of the district courts.” 28 U.S.C. § 1291. Generally, an order awarding

attorney’s fees is not final until the amount is determined.     Phelps v. Washburn

Univ. of Topeka , 807 F.2d 153, 154 (10th Cir. 1986).

       Although the district court’s May 7 order specified the amount of attorney’s

fees, it also stayed that order pending an evaluation of Rule 11 sanctions.   Cf.


                                             -4-
Phelps , 807 F.2d at 154-55 (“It is apparent from the order that the district court

contemplated further proceedings prior to entering a final order setting the

amount of attorney’s fees.”). The order did not “end[] the litigation on the merits

and leave[] nothing for the court to do but execute the judgment.”          Quackenbush

v. Allstate Ins. Co. 517 U.S. 706, 712 (1996). We lack jurisdiction because the

order is not a final decision of the district court. Accordingly, appeal no. 98-2144

is dismissed.   2



                                             III.

       In appeal no. 99-2218, Plaintiffs and their attorney, Livingston, appeal the

district court’s grant of attorney’s fees and imposition of sanctions.       3
                                                                                 We review

an attorney’s fee award under § 1988 for abuse of discretion.            Robinson v. City of

Edmond , 160 F.3d 1275, 1280 (10th Cir. 1998). We review all aspects of an

       2
          In their motion to dismiss the appeal, Defendants also request costs and
attorney’s fees under Fed. R. App. P. 38 and 28 U.S.C. § 1927, arguing that
Plaintiffs filed a frivolous appeal.   See Braley v. Campbell , 832 F.2d 1504, 1510
(10th Cir. 1987) (en banc). We deny their motion because this court has not
previously analyzed the particular circumstances presented by this appeal.    See
Kamplain v. Curry County Bd. of Comm’rs        , 159 F.3d 1248, 1253 (10th Cir.
1998).
       3
          Plaintiffs’ names do not appear in the body of the notice of appeal in no.
99-2218. We include Plaintiffs as appellants, however, because we believe their
intention to appeal is clear from the inclusion of their names in the caption of the
notice of appeal and the docketing statement.      See Fed. R. App. P. 3(c)(1)(A)
(“The notice of appeal must specify the party or parties taking the appeal by
naming each one in the caption or body of the notice . . . .”);  id. at 3(c)(4) (“An
appeal must not be dismissed . . . for failure to name a party whose intent to
appeal is otherwise clear from the notice.”).

                                             -5-
award of sanctions under Rule 11 for abuse of discretion.        Cooter & Gell v.

Hartmarx Corp. , 496 U.S. 384, 405 (1990);         In re Cascade Energy & Metals Corp.   ,

87 F.3d 1146, 1149 (10th Cir. 1996).

       In civil rights actions, “the court, in its discretion, may allow the prevailing

party . . . a reasonable attorney’s fee as part of its costs.” 42 U.S.C. § 1988(b);

Robinson , 160 F.3d at 1280. In cases in which the defendant is the prevailing

party, the plaintiff should not be obligated to pay fees “unless a court finds that

his claim was frivolous, unreasonable, or groundless.”        Christiansburg Garment

Co. v. EEOC , 434 U.S. 412, 422 (1978). The district court evaluated the merits

of claims, and did not clearly err in finding that the complaint was frivolous.      See

Crabtree v. Muchmore , 904 F.2d 1475, 1478 (10th Cir. 1990) (advising district

courts to look to the merits of a complaint dismissed under Rule 12(b)(6) to

determine frivolousness). Indeed, we affirmed the district court’s dismissal of the

complaint in Chavez , 1999 WL 1015540. The record shows that Plaintiffs

brought suit in federal court after repeated failed attempts to get relief in state

court. The district court did not abuse its discretion in awarding reasonable

attorney’s fees to Defendants.

       Rule 11 provides that, by signing a complaint, an attorney certifies that “it

is not being presented for any improper purpose, such as to harass or to cause

unnecessary delay or needless increase in the cost of litigation” and “the claims,


                                             -6-
defenses, and other legal contentions therein are warranted by existing law or by a

nonfrivolous argument for the extension, modification, or reversal or existing law

or the establishment of new law.” Fed. R. Civ. P. 11(b). After a hearing, the

magistrate judge recommended finding that the complaint was filed for the

improper purpose of causing needless expense to Defendants and recommended

imposing sanctions of $2000. Livingston objected to the proposed findings and

recommended disposition.

      The district court acted within its discretion in imposing sanctions against

Livingston. After conducting a de novo review of the record, the district court

made detailed findings regarding the complaint’s objectively apparent impropriety

and frivolousness.   See White v. General Motors Corp. , 908 F.2d 675, 680 (10th

Cir. 1990) (“This circuit has adopted the view that an attorney’s actions must be

objectively reasonable in order to avoid Rule 11 sanctions.”). As a result of its

examination, the district court concluded that a $2000 sanction was insufficient to

deter Livingston’s conduct and increased the amount to $5000.    See id. at 684

(“The appropriate sanction should be the least severe sanction adequate to deter

and punish the plaintiff.”).

      We DISMISS cause no. 98-2144 for lack of jurisdiction and AFFIRM cause

no. 99-2218 awarding attorney’s fees and sanctions.


                                        Entered for the Court,

                                          -7-
Bobby R. Baldock
Circuit Judge




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