           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                           August 21, 2009

                                     No. 08-41139                      Charles R. Fulbruge III
                                   Summary Calendar                            Clerk



BILLY RAY JOHNSON, By and Through Lue Wilson as Next Friend of Ray
Johnson; LUE WILSON


                                                   Plaintiffs-Appellants
v.

DONALD W DOWD, In his official and personal capacity; RALPH K
BURGESS, In his official and personal capacity; THOMAS JOHNSON;
GLENN PERRY; MORRIS DEES; ANN ELLISOR; LENDA BEACHUM


                                                   Defendants-Appellees




                   Appeal from the United States District Court
                         for the Eastern District of Texas
                               USDC No. 5:07-CV-99


Before JOLLY, BENAVIDES, and HAYNES, Circuit Judges.
PER CURIAM:*
       This is an appeal of the district court’s award of Rule 11 sanctions against
the plaintiffs’ attorney, Claudene T. Arrington. For the following reasons, the
judgment of the district court is affirmed.

       *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
                                 No. 08-41139

                                       I.
      Billy Ray Johnson suffered disabling injuries resulting from an assault,
and his friend Lue Wilson brought a civil suit in Texas state court against the
assailants on his behalf. After the civil trial—in which Johnson recovered a nine
million dollar verdict—and subsequent guardianship proceedings, Wilson filed
the underlying action pursuant to 42 U.S.C. § 1983 and 42 U.S.C. § 1985 on his
own behalf and on behalf of Johnson as next friend. Plaintiffs sued numerous
defendants: Lenda Beachum (Johnson’s cousin and court-appointed temporary
guardian at the time this case was filed); attorneys Thomas Johnson and Glenn
Perry (counsel to Beachum in the guardianship proceeding); attorney Morris
Dees (counsel to Johnson); and Ann Ellisor (the owner of the Texarkana Nursing
Center where Johnson resided at the time) (collectively, “non-judicial
defendants”). Plaintiffs also named Judge Ralph K. Burgess (presiding judge in
the state civil trial) and Judge Donald W. Dowd (presiding judge in the
guardianship proceedings) (collectively, “judicial defendants”) as defendants in
their official and personal capacities. The complaint alleged that plaintiffs’
constitutional rights were violated in both the civil suit against Johnson’s
assailants and the guardianship proceedings.
      The judicial defendants filed motions to dismiss under Rule 12(b)(6)
asserting that they were immune from suit under the doctrine of judicial
immunity. The district court granted these motions on December 26, 2007,
holding that the judicial defendants were entitled to absolute immunity because
they were acting in their judicial capacities. After the dismissal, the district
court granted plaintiffs leave to file an amended complaint only as to the non-
judicial defendants. Plaintiffs instead filed an amended complaint that did not
contain any new allegations and reiterated the same claims against both the
judicial defendants and the non-judicial defendants. All of the defendants moved




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to dismiss the action. The judicial defendants filed a motion for sanctions under
Rule 11.
      On March 13, 2008, the district court dismissed all claims with prejudice
and sanctioned Arrington, the plaintiffs’ attorney, under Rule 11 for re-filing
claims against the judicial defendants.        On April 10, 2008, the plaintiffs
appealed the dismissal of the action on the merits, but did not appeal the order
issuing sanctions against Arrington. This court affirmed the judgment of the
district court dismissing all of the plaintiffs’ claims on December 15, 2008.
Johnson ex rel. Wilson v. Dowd, 305 F. App’x 221, 2008 WL 5212795 (5th Cir.
December 15, 2008) (unpublished).
      On September 9, 2008, following the appeal on the merits, the district
court set the award of sanctions against plaintiffs, rather than Arrington, in the
amount of $5,377.50—the amount of attorneys’ fees and costs incurred by the
judicial defendants as a result of the sanctionable conduct. On September 19,
2008, the non-judicial defendants filed a motion to clarify the court’s September
9 order, requesting that the court order Arrington, rather than the plaintiffs, to
pay the monetary sanction awarded. The district court granted this motion to
clarify on September 23, 2008, specifying that Arrington, rather than plaintiffs,
was required to pay the monetary sanction. On October 17, 2008, plaintiffs filed
a motion to set aside the district court’s September 9 and September 23 orders.
The district court denied this motion to set aside in a October 22, 2008 order.
The instant appeal was filed on October 22, 2008.
                                         II.
      Defendants first argue that the plaintiffs’ notice of appeal was insufficient
under Rule 3(c).    Fed. R. App. P. 3(c).      In the notice of appeal, plaintiffs
specifically appeal only the district court’s September 23 clarification order and
October 22 order refusing to set aside. In their brief, plaintiffs explicitly specify
that they are appealing the September 9, 2008 order, which set the amount of


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the monetary sanctions, rather than the orders specified in their notice of
appeal. In addition, the notice of appeal references only the plaintiffs as the
appealing parties, rather than the plaintiffs’ counsel Arrington, who was the
subject of the sanctions.
       The Supreme Court has noted that “imperfections in noticing an appeal
should not be fatal where no genuine doubt exists about who is appealing, from
what judgment, to which appellate court.” Becker v. Montgomery, 532 U.S. 757,
767 (2001). Rule 3(c) provides that a notice of appeal must “designate the
judgment, order, or part thereof being appealed.” Fed. R. App. P. 3(c). “In
general, this court liberally construes a notice where the intent to appeal an
unmentioned ruling is apparent and there is no prejudice to the adverse party.”
NCNB Texas Nat’l Bank v. Johnson, 11 F.3d 1260, 1269 (5th Cir. 1994) (citation
omitted). “If a party mistakenly designates the ruling from which he seeks to
appeal, the notice of appeal is liberally construed and a jurisdictional defect will
not be found if (1) there is a manifest intent to appeal the unmentioned ruling
or (2) failure to designate the order does not mislead or prejudice the other
party.” Trust Co. of La. v. N.N.P. Inc., 104 F.3d 1478, 1486 (5th. Cir. 1997)
(emphasis added).
       Here, the notice of appeal fails to mention the order which is being
appealed according to the substance of the briefs, namely the September 9, 2008
order fixing the amount of the sanction award. 1 However, the notice does

       1
         Defendants also contend that plaintiffs’ notice of appeal was untimely. The filing of
a timely notice of appeal, within thirty days after entry of the court’s judgment, is mandatory
and jurisdictional. Kinsley v. Lakeview Reg’l Med. Ctr. LLC, 570 F.3d 586, 588 (5th Cir. 2009).
Defendants contend that the thirty-day time period in which the plaintiffs had to appeal the
March 13, 2008 order awarding sanctions and the September 9, 2008 order fixing the amount
of sanctions had passed. Defendants err in this contention. The law of this court specifies that
an award of sanctions without specifying a quantum is not a final order and is not appealable.
Southern Travel Club, Inc. v. Carnival Air Lines, Inc., 986 F.2d 125, 131 (5th Cir. 1993) (per
curiam). Thus, plaintiffs could not have appealed from the March 13 sanctions order, which
did not fix the amount of the sanction. In addition, plaintiffs’ notice of appeal, filed October
22, 2008, was timely as to the September 9 order. The defendants filed a motion to clarify the

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mention two orders that relate to the award of sanctions, the order clarifying the
sanction award and the order denying the plaintiffs’ motion to set aside the
sanction award.        Furthermore, both sides briefed the issue of the Rule 11
sanctions, and there is no indication that the defendants are in any way
prejudiced by an appeal on that issue. Thus, the notice of appeal, liberally
construed, is sufficient to provide us with jurisdiction to hear challenges to the
unenumerated sanctions order.
       The notice of appeal’s failure to name the proper party as the appellant is
also not fatal to the appeal. “An appeal will not be dismissed . . . for failure to
name a party whose intent to appeal is otherwise clear from the notice.” Garcia
v. Wash, 20 F.3d 608, 609 (5th Cir. 1994) (quoting Fed. R. App. P. 3(c)). In
Garcia, this court held that a notice of appeal naming the plaintiff, rather than
plaintiff’s attorney, as the appellant in an appeal of sanctions issued against the
attorney was sufficient under the requirements of Rule 3(c).                   Id. at 610. The
court reasoned that even though the attorney was not formally named in the
notice of appeal, his intent to appeal the award of sanctions was clear from the
notice of appeal because the notice appealed the final judgment, in which
sanctions were assessed against the attorney individually. Id. Here, the notice
of appeal, though it does not formally name Arrington as the party, does appeal
two district court orders that are explicitly related to the award of sanctions




September 9 order on September 19, which served to extend the deadline for appeal. Fed. R.
App. P. 4(a)(4)(iv) (stating that the time to file a notice of appeal runs for all parties from the
entry of the order disposing of a timely filed Rule 59(e) motion to alter or amend the
judgment). Because the district court did not enter its order granting the defendants’ motion
to clarify until September 23, 2008, the plaintiffs had until October 23, 2008—30 days after
the clarification order was entered—to file their notice of appeal. Thus, plaintiffs’ October 22,
2008 notice of appeal was timely.




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against Arrington. Therefore, Arrington’s intent to appeal is sufficient to meet
the requirements of Rule 3(c).
                                       III.
      Arrington contends that the district court abused its discretion in
awarding Rule 11 sanctions against her. “We review all aspects of the district
court’s decision to invoke Rule 11 and accompanying sanctions under the abuse
of discretion standard.” Am. Airlines, Inc. v. Allied Pilots Ass’n, 968 F.2d 523,
529 (5th Cir. 1992). A district court abuses its discretion if it imposes sanctions
based on (1) an erroneous view of the law or (2) a clearly erroneous assessment
of the evidence. Skidmore Energy, Inc. v. KPMG, 455 F.3d 564, 566 (5th Cir.
2006) (citation omitted). Rule 11 states that attorneys must not file suit for any
improper purpose or without evidentiary support for the allegations contained
in the complaint. Fed. R. Civ. P. 11(a)(1), 11(a)(3).
      The district court did not abuse its discretion in sanctioning Arrington.
The district court dismissed the plaintiffs’ claims against all defendants and
granted the plaintiffs leave to amend the complaint against the non-judicial
defendants.   However, the court expressly dismissed the plaintiffs’ claims
against the judicial defendants with prejudice because the judicial defendants
were absolutely immune from suit under the facts alleged in complaint.
Arrington, however, ignored the order of the district court and re-filed the
plaintiffs’ claims against the judicial defendants while at the same time asking
the court to reconsider dismissing the plaintiffs’ claims in the case. The judicial
defendants were forced to incur costs and fees to respond to the amended
complaint, after having already been dismissed from the suit. The court was
well within its discretion in awarding sanctions against Arrington under these
circumstances.
      Arrington’s contention is that she was not afforded a proper opportunity
to respond to the defendants’ motion for sanctions is without merit. The motion


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for sanctions complied with the procedural requirements of Rule 11 and was
served on Arrington on January 14, 2008, 21 days before the motion was filed
with the court on February 4, 2008, in accordance with the “safe harbor”
provisions of Rule 11. Fed. R. Civ. P. 11(c)(1)(a). Arrington was afforded fifteen
days to respond to the motion, and did respond, but failed to address the merits
of the motion for sanctions. Arrington failed to cure the sanctionable pleading
or otherwise address the merits of the Rule 11 motion before the motion was
granted on March 13, 2008. Thus, the district court did not abuse its discretion
in imposing sanctions against Arrington.
                                             IV.
       The motion of the appellees, Lenda Beachum, Morris Dees, Thomas
Johnson, and Glenn Perry, for additional sanctions against plaintiffs’ attorney
Claudene Arrington pursuant to Rule 38 is DENIED.2
       The motion of the appellees, Ralph Burgess and Donald W. Dowd, to strike
the appellants’ reply brief is DENIED.
       The appellants’ motion to strike the brief of appellees, Thomas Johnson,
Glenn Perry, Morris Dees, and Lenda Beachum, is DENIED.
       The judgment of the district court awarding sanctions under Rule 11 is
AFFIRMED.




       2
         We acknowledge that in the plaintiffs’ prior appeal on the merits, this court issued a
sanctions warning against the plaintiffs. Johnson ex rel. Wilson, 305 F. App’x at 224.
However, because the notice of appeal in this matter was filed two months prior to this court’s
sanction warning, we decline to impose sanctions under Rule 38 at this time. We remind the
plaintiffs and counsel that any future frivolous appeals in this court—including any frivolous
petitions for rehearing—will result in the imposition of sanctions.




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