                                                          F I L E D
                                                    United States Court of Appeals
                                                            Tenth Circuit
                 UNITED STATES CO URT O F APPEALS
                                                        February 21, 2007
                       FO R TH E TENTH CIRCUIT         Elisabeth A. Shumaker
                                                           Clerk of Court

TH O MA S R . H U TC HIN SO N ;
DENNIS P. BULLARD; ROBERT J.
BU LLARD; BA RBA RA L.
LA W REN Z; R UTH A N N LIB BY;
K A TH RY N M. R OB IN SO N ; JOHN
M . SPA N TO N ,

           Plaintiffs-Appellants,
                                              No. 06-5053
v.                                       (D.C. No. 02-C-408-E)
                                              (N.D. Okla.)
RICHARD BRADY PFEIL; M ARY
JOAN PFEIL; LEW IS N. CARTER;
DOERNER, STU ART, SAUNDERS,
DANIEL & ANDERSON, L.L.P.;
SCOTT E. HERSHM AN ; BA RRETT
W . FREEDLANDER,

           Defendants-Appellees.


TH O MA S R . H U TC HIN SO N ;
DENNIS P. BULLARD; DENNIS J.
BU LLARD; BA RBA RA L.
LA W REN Z; R UTH A N N LIB BY;
K A TH RY N M. R OB IN SO N ; JOHN
M . SPAN TON ; JOA N G OD LOV E,

           Plaintiffs-Appellants,

v.

RICHARD BRADY PFEIL; M ARY                    No. 06-5055
JOAN PFEIL; LEW IS N. CARTER;           (D.C. No. 02-CV -425-E)
DOERNER, STU ART, SAUNDERS,                   (N.D. Okla.)
DA NIEL & AN DER SON ; DO ERN ER
STUART, SAUND ERS, DA NIEL,
ANDERSON, BIOLCHINI;
DO ERNER SAU ND ERS, DA NIEL &
AND ERSON; DOERNER,
SAU ND ERS, DA NIEL &
ANDERSON, L.L.P.; GEORGE M .
HOFFM AN; NEAL GERBER &
EISENBERG; JOHN DAVID
HOO VER; BARRY BOXER; IRA
SPA N IER MA N ; SPA N IER MA N
G A LLERY; H A RR Y D . SH A PIRO;
RA YM ON D J. HO RO W ITZ; SCOTT
E. HERSHM AN; PHILLIPE M .
SALOM ON ; HIRSCHL & AD LER
GALLERIES, IN C.,

             Defendants-Appellees.


TH O MA S R . H U TC HIN SO N ,

             Plaintiff-Appellant,

v.

RICHARD BRADY PFEIL; M ARY                       No. 06-5121
JOAN PFEIL; LEW IS N. CARTER;              (D.C. No. 02-CV-721-K)
DOERNER, STU ART, SAUNDERS,                      (N.D. Okla.)
DANIEL & ANDERSO N, an
Oklahoma partnership; DOERNER,
STUART, SAUND ERS, DA NIEL,
ANDERSO N AND BIOLCHINI, an
Oklahoma partnership; DOERNER,
SAU ND ERS, DA NIEL &
AND ERSON, an Oklahoma
partnership; DOERNER, SAUNDERS,
DANIEL & ANDERSON, L.L.P.;
NEAL GERBER & EISENBERG, an
Illinois partnership; GEORGE M .
HOFFM AN, individually and as a
member of the N eal Gerber &


                                     -2-
Eisenberg firm,

              Defendants-Appellees.


TH O MA S R . H U TC HIN SO N ;
DENNIS P. BULLARD; BARBARA
L. LA W R EN Z; R UTH A N N LIBBY;
K A TH RY N M. R OB IN SO N ; JOHN
M . SPANTON; ROBERT J.
BU LLARD; JOA N G OD LOV E,

              Plaintiffs-Appellants,

v.

B ON N IE J. H A H N ,                             No. 06-5122
                                             (D.C. No. 04-CV -341-E)
              Defendant,                           (N.D. Okla.)

       and

B AM BER GER , FO REM A N ,
O SW A L D A N D H AH N ;
B AM BER GER , FO REM A N ,
OSW ALD AND HAHN, L.L.P.;
D A V ID P. K A SPER ; LO CK E
REYNO LDS BO YD & W EISELL;
LO CK E REY NOLD S LLP,

              Defendants-Appellees.




                                       -3-
                           OR D ER AND JUDGM ENT *


Before TA CH A, Chief Judge, KELLY and O’BRIEN, Circuit Judges.


      This case involves four appeals that we consolidate for procedural purposes

only. The parties are familiar with the facts and extensive procedural history and

we need not restate that material here. Suffice it to say that what we have before

us is the latest chapter in a legal battle that began many years ago concerning the

ownership of paintings by American Impressionist artist Theodore Robinson. Our

jurisdiction arises under 28 U.S.C. § 1291, and we affirm each of the four

challenged decisions.

      In appeal number 06-5053, plaintiffs challenge the district court’s order

dated M arch 3, 2003, granting defendants’ motions to dismiss for failure to state a

claim under Fed. R. Civ. P. 12(b)(6). 1 Specifically, plaintiffs assert that the court




*
       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 w ith Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
1
      Plaintiffs’ docketing statement for appeal number 06-5053 suggests that
they are also challenging the district court’s sealed order dated January 24, 2006,
denying their motion to vacate the judgment entered M arch 20, 2003. But
                                                                       (continued...)

                                         -4-
relied on materials outside of their amended complaint and engaged in

impermissible fact-finding, thereby erroneously rejecting, among other claims,

their claim that the judgment in Hutchinson v. Pfeil, 94-C-1134-E (N.D. Okla.

M ar. 9, 1998), aff’d, No. 98-5248, 2000 W L 345688 (10th Cir. Apr. 4, 2000)

(unpublished), w as procured by fraud on the court. Plaintiffs also assert that we

should certify to the Oklahoma Supreme Court questions of state law related to

their attorney-deceit and collusion claim.

      In appeal number 06-5055, plaintiffs challenge the district court’s order

dated M arch 3, 2003, granting defendants’ motions to dismiss for failure to state a

claim under Rule 12(b)(6). 2 Again, plaintiffs assert that the court relied on

materials outside of their amended complaint and engaged in impermissible

fact-finding. As a result, argue plaintiffs, the court erroneously rejected, among

other claims, their claim that a magistrate judge’s sanctions order entered against

Thomas R. Hutchinson and his counsel, Joan Godlove, in Hutchinson v. Pfeil,

92-C-1088-E (N.D. Okla. Dec. 22, 1993), and subsequent affirmances of that

sanctions order, 92-C-1088-E (N .D. Okla. Feb. 18, 1998), aff’d, No. 98-5043,


1
 (...continued)
plaintiffs abandoned this issue by failing to brief it on appeal. Reazin v. Blue
Cross & Blue Shield of Kan., Inc., 899 F.2d 951, 979 n.43 (10th Cir. 1990).
2
       Plaintiffs’ docketing statement for appeal number 06-5055 suggests that
they are also challenging the district court’s sealed order dated January 24, 2006,
denying their motion to vacate the judgment entered M arch 20, 2003. As in
appeal number 06-5053, plaintiffs in appeal number 06-5055 abandoned this issue
by failing to brief it on appeal. Reazin, 899 F.2d at 979 n.43.

                                         -5-
1999 W L 1015557 (10th Cir. Nov. 9, 1999) (unpublished), were procured by

fraud on both courts.

      In appeal number 06-5121, plaintiff challenges the district court’s sealed

order dated January 24, 2006, granting defendants’ motions to dismiss for failure

to state a claim under Rule 12(b)(6). 3 Plaintiff asserts that the court relied on

materials outside of his amended complaint and engaged in impermissible

fact-finding, thereby erroneously rejecting his argument that the grant of summary

judgment in Hutchinson v. Pfeil, 92-C-1088-E (N .D. Okla. Aug. 3, 1995), aff’d,

105 F.3d 562 (10th Cir. 1997), was procured by fraud on the court. Plaintiff also

takes issue with the sealed order insofar as the court found defendants’ reasons

for their late filings constituted excusable neglect. And, plaintiff contends that

the court erred by declining to strike defendants’ motions to dismiss and by

deeming defendants’ motion to set aside the default judgment moot.

      In the last appeal before this court, appeal number 06-5122, plaintiffs

challenge the district court’s sealed order dated January 24, 2006, granting




3
       W ith respect to appeal number 06-5121, we note that the district court
entered default judgment against two of the named defendants on January 30,
2003. But in its sealed order dated January 24, 2006, the court considered the
proffered reasons for late filings, found them to constitute excusable neglect, and,
in effect, set aside the default judgment. As a result, we construe the court’s
January 24 sealed order as having granted defendants’ motion for leave to file an
answ er or otherwise plead out of time and as having set aside the default
judgment.

                                          -6-
defendants’ motions to dismiss for failure to state a claim under Rule 12(b)(6). 4

Yet again, plaintiffs assert that the court relied on materials outside of plaintiffs’

amended complaint and engaged in impermissible fact-finding, thereby

erroneously rejecting their claim— as far as w e can discern— that the holdings in

Hutchinson v. Day, EV-80-104-C (S.D. Ind. 1988), Hutchinson v. Spainerman,

EV-90-44-C & EV-90-43-C (S.D. Ind. Jan. 22, 1997), Hutchinson v. Spainerman,

EV-90-44-C & EV-90-43-C (S.D. Ind. M ay 13, 1997), and Hutchinson v.

Spainerman, 190 F.3d 815 (7th Cir. 1999), were the result of defendants’ fraud on

the court, the underpinning of plaintiffs’ RICO claim in this case. Plaintiffs also

take issue with the sealed order insofar as the court deemed moot both their

emergency motion for sanctions and their motion to substitute Bonnie J. Hahn,

personal representative of the estate of Robert H. Hahn, deceased, for defendant

Robert H. Hahn.

      W e review for abuse of discretion the district court’s disposition in an

action for fraud on the court. See Switzer v. Coan, 261 F.3d 985, 987, 988




4
       Plaintiffs’ notice of appeal identifies Joan Godlove (who was not a plaintiff
in the district court), as a party to appeal number 06-5122. Counsel cannot make
herself a party to an appeal by listing herself as a plaintiff-appellant in her
clients’ notice of appeal. We therefore DISM ISS appeal number 06-5122 as to
M s. Godlove for lack of standing. See M arino v. Ortiz, 484 U.S. 301, 304 (1988)
(“The rule that only parties to a lawsuit, or those that properly become parties,
may appeal an adverse judgment, is w ell settled.”); Coffey v. Whirlpool Corp.,
591 F.2d 618, 619 (10th Cir. 1979) (“A nonparty does not have standing to appeal
in the absence of most extraordinary circumstances.”).

                                          -7-
(10th Cir. 2001). W e likewise review for abuse of discretion both a district

court’s determination that a late filing was caused by excusable neglect, see Panis

v. M ission Hills Bank, N.A., 60 F.3d 1486, 1494 (10th Cir. 1995), and its decision

to set aside the entry of default judgment, Stjernholm v. Peterson, 83 F.3d 347,

349 n.1 (10th Cir. 1996). W e review de novo a district court’s ruling on a Fed. R.

Civ. P. 12(b)(6) motion. Hartman v. Kickapoo Tribe Gaming Comm’n, 319 F.3d

1230, 1234 (10th Cir. 2003). W e will affirm a district court’s grant of a Rule

12(b)(6) motion when “it appears beyond doubt that the plaintiff can prove no set

of facts in support of his claim which would entitle him to relief.” Id. (quotation

omitted).

      Having carefully reviewed the briefs, the record, and the applicable law

pursuant to the above-mentioned standards, we conclude that there is no

reversible error in any of the challenged decisions. Indeed, we hold that each of

the four appeals is frivolous; in other words, plaintiffs’ arguments of error, in

each of the four appeals, are without merit. Accordingly, we AFFIRM the

challenged decisions for substantially the same reasons as stated in the district

court’s orders dated (1) M arch 3, 2003, Aplt. App. No. 06-5053 at 123;

(2) M arch 3, 2003, Aplt. App. No. 06-5055 at 156; (3) January 24, 2006, Sealed

Aplt. App. No. 06-5121; and (4) January 24, 2006, Sealed Aplt. App.

No. 06-5122. Plaintiffs’ corrected motions to consolidate appeal numbers




                                          -8-
06-5053, 06-5055, 06-5121, and 06-5122 are GRANTED for procedural purposes

only. All other outstanding motions are denied as M OOT.

      Finally, having determined that each of the four appeals are frivolous, we

“have the power to impose sanctions such as costs, attorney fees, and double

costs.” Van Sickle v. Holloway, 791 F.2d 1431, 1437 (10th Cir. 1986). W e also

have “the inherent power to impose sanctions that are necessary to regulate the

docket, promote judicial efficiency, and . . . to deter frivolous filings.” Id. Here,

as a sanction for filing four frivolous appeals, we are inclined to hold plaintiffs

and plaintiffs’ counsel, M s. Godlove, jointly and severably liable for double costs

consistent with Fed. R. App. P. 38. Although plaintiffs and M s. Godlove have

already had an opportunity to respond to defendants’ request for sanctions, they

have not been able to address the specific sanction we intend to impose.

Accordingly, we are affording plaintiffs and M s. Godlove the opportunity to show

cause why double costs should not be imposed. Their response is limited to five

pages. If their response is not received by the clerk within ten days from the date

of this order and judgment, double costs will be imposed. W ithin fourteen days




                                          -9-
of the date of this order and judgment, defendants-appellees shall, pursuant to

Fed. R. App. P. 39, file an itemized and verified bill with costs and proof service.


                                                     Entered for the Court


                                                     Paul J. Kelly, Jr.
                                                     Circuit Judge




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