     10-2258-cv(L)
     Johnson, et al. v. Univ. of Rochester Med. Ctr., et al.

 1                      UNITED STATES COURT OF APPEALS
 2
 3                            FOR THE SECOND CIRCUIT
 4
 5
 6
 7                              August Term, 2010
 8
 9    (Argued: March 15, 2011                    Decided: April 19, 2011)
10
11              Docket Nos. 10-2258-cv(L); 10-2267-cv (con)
12
13
14     KEITH JOHNSON, M.D., bringing this action on behalf of the
15                       United States of America,
16
17                                                       Plaintiff-Appellant,
18
19     LAURA SCHMIDT, R.N., bringing this action on behalf of the
20                       United States of America,
21
22                                                                 Plaintiff,
23                                      - v. -
24
25    THE UNIVERSITY OF ROCHESTER MEDICAL CENTER, STRONG MEMORIAL HOSPITAL,
26
27                                                    Defendants-Appellees.*
28
29
30
31   Before:
32        WESLEY, CHIN, and LOHIER, Circuit Judges.
33
34        Appeal from a judgment and orders of the United States
35   District Court for the Western District of New York
36   (Larimer, J.) that: (1) dismissed Appellant’s complaint and
37   denied leave to amend; (2) denied relief pursuant to Federal


           *
             We direct the Clerk of the Court to amend the official
     caption in accordance with this opinion.

                                    Page 1 of 10
 1   Rule of Civil Procedure 60(b)(1); and (3) sanctioned
 2   Appellant’s counsel pursuant to Federal Rule of Civil
 3   Procedure 11 or, alternatively, 28 U.S.C. § 1927.
 4
 5        We DISMISS the appeal from the district court’s
 6   judgment and order that dismissed Appellant’s complaint and
 7   denied leave to amend. We AFFIRM the orders that denied
 8   relief pursuant to Federal Rule of Civil Procedure 60(b)(1)
 9   and sanctioned Appellant’s attorney pursuant to § 1927.
10
11
12
13             CHRISTINA A. AGOLA, Christina A. Agola, PLLC,
14             Rochester, NY, for Plaintiff-Appellant.
15
16             THOMAS S. D’ANTONIO, (Christin M. Murphy, on the
17             brief), Ward Greenberg Heller & Reidy LLP,
18             Rochester, NY, for Defendants-Appellees.
19
20
21
22
23
24   PER CURIAM:

25        Appellant Keith Johnson, M.D.1 appeals from a judgment

26   and three orders of the United States District Court for the

27   Western District of New York (Larimer, J.) that: (1)

28   dismissed his complaint and denied leave to amend; (2)

29   denied relief under Federal Rule of Civil Procedure

30   60(b)(1); and (3) sanctioned his attorney.



          1
             Laura Schmidt, R.N. brought the qui tam action in
     conjunction with Johnson. This appeal, however, is brought
     solely on Johnson’s behalf. Accordingly, we refer solely to
     Johnson throughout.

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 1        For the reasons stated below, we DISMISS the appeal

 2   from the judgment and order that dismissed his complaint and

 3   denied leave to amend for lack of appellate jurisdiction.

 4   We AFFIRM the orders that denied Rule 60(b)(1) relief and

 5   imposed § 1927 sanctions.

 6                            I. Background

 7        Johnson filed a qui tam action pursuant to 31 U.S.C.

 8   § 3729, alleging that the University of Rochester Medical

 9   Center and Strong Memorial Hospital (the “University”)

10   fraudulently billed Medicare/Medicaid for medical procedures

11   performed by unsupervised residents.     The United States

12   declined to intervene, the district court unsealed the

13   complaint, and Johnson served the University.

14        The University then moved to dismiss Johnson’s

15   complaint for failure to state a claim.     In response,

16   Johnson moved for leave to amend, arguing that leave should

17   be “freely given” in the absence of “bad faith,” “repeated

18   failures to cure deficiencies,” or “futility of the

19   amendment.”2   Johnson did not assert that he was entitled to


          2
             Johnson moved for leave to amend on December 31, 2008.
     Thus, former Rule 15 governed the amendment. Former Rule 15
     stated:
               “A party may amend the party’s pleading once

                               Page 3 of 10
 1   amend as of right.   In the University’s opposition to

 2   Johnson’s motion, it moved for sanctions pursuant to Federal

 3   Rule of Civil Procedure 11.

 4        In a judgment entered February 19, 2010, the district

 5   court dismissed the action and denied Johnson leave to

 6   amend, holding that Johnson’s request to amend his complaint

 7   would prove futile because he repeated the original

 8   complaint’s insufficient allegations and added two new, but

 9   ultimately defective, causes of action.     The court also

10   denied, without prejudice, the University’s sanctions motion

11   because the University failed to file the motion separately,

12   as required by Federal Rule of Civil Procedure 11(c)(2).

13        On March 22, 2010, Johnson moved for reconsideration

14   pursuant to Federal Rule of Civil Procedure 60(b)(1).

15   Johnson argued that the district court should have granted

16   leave to amend because former Federal Rule of Civil

17   Procedure 15(a) allowed one amendment as of right.        The



               as a matter of course at any time before a
               responsive pleading is served . . . .
               Otherwise a party may amend the party’s
               pleading only by leave of court or by written
               consent of the adverse party; and leave shall
               be freely given when justice so requires.”

     Fed. R. Civ. P. 15(a) (1998).

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 1   district court denied reconsideration, reasoning that it

 2   made no mistake since Johnson committed the decision asking

 3   whether to allow amendment to the court’s discretion by

 4   asking for permission to amend.

 5        The University subsequently filed a separate sanctions

 6   motion pursuant to Federal Rule of Civil Procedure 11 or,

 7   alternatively, 28 U.S.C. § 1927, alleging that Johnson’s

 8   attorney knowingly included a false accusation in the

 9   amended complaint.   The district court granted the sanctions

10   motion, holding that Johnson’s attorney relentlessly pursued

11   claims without basis in law or fact and knowingly included a

12   false statement in the proposed amended complaint.

13                           II. Discussion

14   A.   Jurisdiction to Review the District Court’s Judgment

15        This Court lacks appellate jurisdiction over Johnson’s

16   appeal from the district court’s February 19, 2010 judgment

17   and order dismissing his complaint and denying leave to

18   amend.   Pursuant to Federal Rule of Appellate Procedure 4, a

19   party must file a notice of appeal within thirty days from

20   the date judgment is entered.     Fed. R. App. P. 4(a)(1)(a).

21   A party tolls its filing deadline, however, by filing a Rule

22   60(b) motion within twenty-eight days of the judgment’s

                              Page 5 of 10
 1   entry.     Fed. R. App. P. 4(a)(4)(A)(vi).   Filing deadlines

 2   are mandatory and jurisdictional.     Silivanch v. Celebrity

 3   Cruises, Inc., 333 F.3d 355, 363 (2d Cir. 2003).

 4   Accordingly, failure to comply with Rule 4 warrants

 5   dismissal.     Glinka v. Maytag Corp., 90 F.3d 72, 74 (2d Cir.

 6   1996) (citation omitted).

 7        Johnson filed his Rule 60(b) motion on March 22, 2010,

 8   three days after the twenty-eight day tolling deadline

 9   expired.     Because Johnson’s Rule 60(b) motion failed to toll

10   his deadline to file a notice of appeal, his June 4, 2010

11   notice of appeal was untimely.3    Accordingly, this Court

12   lacks appellate jurisdiction over the judgment and order

13   dismissing Johnson’s complaint and denying leave to amend.



          3
             Johnson also argues that the district court’s order
     denying the University’s sanctions motion without prejudice
     rendered the February 19th judgment and order non-final.
     Although Johnson is correct that some sanctions orders (e.g.,
     discovery sanctions) are “inextricably intertwined” with the
     merits of a case when the order appealed from is a sanctions
     order, see Cunningham v. Hamilton Cnty., 527 U.S. 198, 205-06
     (1999), there was no reasonable possibility in this case that
     resolving the University’s sanction motion would require further
     analysis of the merits. The pendency of the sanctions motion
     therefore did not extend the time to appeal the merits judgment.
     Cf. Salovaara v. Eckert, 222 F.3d 19, 27 n.4 (2d Cir. 2000)
     (“Salovaara’s time to appeal from the District Court’s decision
     on the merits began to run in July 1998, notwithstanding the fact
     that Eckert was granted leave to file a motion for attorney’s
     fees and/or sanctions.”)

                                Page 6 of 10
 1   B.   Johnson’s Request for Reconsideration

 2        Johnson contends that the district court abused its

 3   discretion by declining to reconsider its order that denied

 4   his request for leave to amend. Federal Rule of Civil

 5   Procedure 60(b)(1) permits a district court to grant relief

 6   from a judgment based on “mistake, inadvertence, surprise,

 7   or excusable neglect.”     Fed. R. Civ. P. 60(b)(1) (2010).       We

 8   review a district court’s decision on a Rule 60(b) motion

 9   for abuse of discretion.     Ins. Co. of N. Am. v. Pub. Serv.

10   Mut. Ins. Co., 609 F.3d 122, 127 (2d Cir. 2010).      A court

11   abuses it discretion when (1) its decision rests on an error

12   of law or a clearly erroneous factual finding; or (2) cannot

13   be found within the range of permissible decisions.      Zervos

14   v. Verizon N.Y., Inc., 252 F.3d 163, 169 (2d Cir. 2010).

15        Here, the district court denied reconsideration after

16   concluding that Johnson had not requested permission to

17   amend as of right, and that it made no mistake in not

18   divining that Johnson actually intended to do so.      The court

19   held that because Johnson sought leave to amend, it was

20   within the court’s discretion to deny his request.4      We


          4
             Johnson cites Kassner v. 2nd Avenue Delicatessen, Inc.,
     496 F.3d 229 (2d Cir. 2007), to support his contention that a

                                Page 7 of 10
 1   agree; the district court properly exercised its discretion

 2   when it denied Johnson’s Rule 60(b) motion.

 3   C.   The District Court’s Order Granting Sanctions

 4        Johnson also appeals from the district court’s order

 5   imposing sanctions under Rule 11 or, alternatively, 28

 6   U.S.C. § 1927.   We review a district court’s sanctions order

 7   for abuse of discretion. Gollomp v. Spitzer, 568 F.3d 355,

 8   368 (2d Cir. 2009).

 9        Johnson’s attorney contends that the court abused its

10   discretion because the University failed to serve the

11   sanctions motion twenty-one days before filing it, in

12   violation of Rule 11(c)(2)’s safe-harbor provision. The

13   University argues that it substantially complied with the

14   safe-harbor provision by delineating Appellant-counsel’s

15   sanctionable conduct in its opposition to Johnson’s motion

16   for leave to amend.   Because we hold that the district court

17   properly exercised its discretion to sanction pursuant to

18   § 1927, we need not reach the court’s alternate Rule 11


     district court must grant a motion for leave to amend when the
     plaintiff can also amend as of right. Kassner does not stand for
     the broad proposition that Johnson asserts. Rather, Kassner
     states that a plaintiff’s right to amend as a matter of course
     “is subject to the district court's discretion to limit the time
     [to amend] the pleadings in a scheduling order issued under Rule
     16(b).” Id. at 244.

                               Page 8 of 10
 1   sanctions ruling.

 2       A court may award § 1927 sanctions only “when the

 3   attorney’s actions are so completely without merit as to

 4   require the conclusion that they must have been undertaken

 5   for some improper purpose.”   Gollomp, 568 F.3d at 368.    In

 6   addition, the court must find bad faith and must provide the

 7   attorney notice and an opportunity to be heard.    Id.

 8       Here, after a hearing on the University’s sanctions

 9   motion, the district court found that Johnson’s attorney

10   pursued claims she knew had no basis in law or fact.     The

11   court focused on counsel’s repeated allegations that the

12   University made an unsolicited, libelous statement about

13   Johnson to the Delaware State Medical Board when, in fact,

14   Johnson’s attorney requested and authorized the release of

15   the allegedly libelous statement.    We hold that the district

16   court’s decision was reasonable and not an abuse of

17   discretion.

18                         III. Conclusion

19       For the above stated reasons, we DISMISS the appeal

20   from the judgment and order dismissing the complaint and

21   denying leave to amend.   We AFFIRM the orders denying Rule

                               Page 9 of 10
1   60(b)(1) relief and sanctioning Johnson’s attorney pursuant

2   to § 1927.




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