                            UNPUBLISHED

                 UNITED STATES COURT OF APPEALS
                     FOR THE FOURTH CIRCUIT


                            No. 10-1829


DARRYL MCKENZIE; MORRIS LAWN AND LANDSCAPE; BENNY W.
HYDRICK; DONALD SUELL; RG, through his Guardian ad Litem
Wilber Calhoun Jr; Guardian ad Litem Wilber Calhoun, Jr; JC,
through his Guardian ad Litem Wilber Calhoun Jr; Guardian ad
Litem Wilber Calhoun, Jr; GREGORY HALL; BEVERLY JEAN ALLEN;
JOHN   ELLA  COLEMAN;  VALLEY   FAIR  BAPTIST   CHURCH;  K&B
PROPERTIES; JS, through his Guardian ad Litem Wilber Calhoun
Jr; Guardian ad Litem Wilber Calhoun, Jr; TORINA LORENZO
COLEMAN,

                     Plaintiffs – Appellants,

WILLIAM HALL; ROOSEVELT WALKER; DW1, through her Guardian ad
Litem   Darlene   Champagne;  Guardian    ad Litem   Darlene
Champagne; DW2, through her Guardian ad Litem Della Mae
Jones; Guardian ad Litem Della Mae Jones,

                     Movants – Appellants,

          and

TIMOTHY ARD; BETHLEHEM BAPTIST CHURCH OF GRANITEVILLE,
INCORPORATED; TINA BEVINGTON, individually and on behalf of
others similarly situated; JESSICA CURTIS; JAMES SPLAWN;
ELIZABETH R. CUTRIGHT, individually and on behalf of others
similarly   situated;  MIKE   WILLIAMS   CONSTRUCTION  LLC;
CHRISTINE GREEN,

                     Plaintiffs,

CHRISTY T. DALTON,

                     Petitioner,

ROBERT M. BELL; ERWIN J. LEIZERMAN; MICHAEL J. LEIZERMAN;
PATRICK J. PEROTTI; STEPHEN K. SURASKY,

                     Movants,
          v.

NORFOLK SOUTHERN RAILWAY COMPANY,

                    Defendant – Appellee,

          and

NORFOLK SOUTHERN CORPORATION; JOHN DOES 1-10,

                    Defendants.




                           No. 11-1365


DARRYL MCKENZIE; MORRIS LAWN AND LANDSCAPE; TIMOTHY ARD;
BENNY W. HYDRICK; DONALD SUELL; BETHLEHEM BAPTIST CHURCH OF
GRANITEVILLE, INCORPORATED; RG, through his Guardian ad
Litem Wilber Calhoun Jr; Guardian ad Litem Wilber Calhoun,
Jr; JS, through his Guardian ad Litem Wilber Calhoun Jr;
Guardian ad Litem Wilber Calhoun, Jr; JC, through his
Guardian ad Litem Wilber Calhoun Jr; Guardian ad Litem
Wilber   Calhoun,   Jr;  GREGORY   HALL;  TINA   BEVINGTON,
individually and on behalf of others similarly situated;
JOHN ELLA COLEMAN; BEVERLY JEAN ALLEN; VALLEY FAIR BAPTIST
CHURCH; K&B PROPERTIES; JESSICA CURTIS; ELIZABETH R.
CUTRIGHT, individually and on behalf of others similarly
situated; JAMES SPLAWN; MIKE WILLIAMS CONSTRUCTION LLC;
TORINA LORENZO COLEMAN,

                    Plaintiffs – Appellants,

WILLIAM HALL; DW1, through her Guardian ad Litem Darlene
Champagne; Guardian ad Litem Darlene Champagne; ROOSEVELT
WALKER; DW2, through her Guardian ad Litem Della Mae Jones;
Guardian ad Litem Della Mae Jones,

                    Movants – Appellants,

          and

CHRISTINE GREEN,

                    Plaintiff,

                                    2
CHRISTY T. DALTON,

                     Petitioner,

ROBERT M. BELL; ERWIN J. LEIZERMAN; MICHAEL J. LEIZERMAN;
PATRICK J. PEROTTI; STEPHEN K. SURASKY,

                     Movants,

           v.

NORFOLK SOUTHERN RAILWAY COMPANY,

                     Defendant – Appellee,

           and

NORFOLK SOUTHERN CORPORATION; JOHN DOES 1-10,

                     Defendants.



Appeals from the United States District Court for the District
of South Carolina, at Aiken.    Margaret B. Seymour, District
Judge. (1:05-cv-00115-MBS)


Argued:   September 19, 2012            Decided:   November 20, 2012


Before GREGORY, SHEDD, and AGEE, Circuit Judges.


Affirmed in part, dismissed in part, and reversed in part by
unpublished per curiam opinion.


ARGUED: Paul Allen Dominick, NEXSEN PRUET, Charleston, South
Carolina, for Appellants. Ronald K. Wray, II, GALLIVAN, WHITE &
BOYD, PA, Greenville, South Carolina, for Appellee. ON BRIEF:
Stephen P. Groves, Sr., NEXSEN PRUET, Charleston, South
Carolina; Douglas M. Schmidt, DOUGLAS SCHMIDT LAW FIRM,
Graniteville,   South   Carolina, for   Appellants.  Thomas  E.
Vanderbloemen, GALLIVAN, WHITE & BOYD, PA, Greenville, South
Carolina, for Appellee.


                                    3
Unpublished opinions are not binding precedent in this circuit.




                                  4
PER CURIAM:

     Appellants challenge the district court’s orders enjoining

their state court actions and imposing attorneys’ fees against

their counsel.       For the reasons that follow, we dismiss in part

and affirm in part the injunctions, and reverse the imposition

of attorneys’ fees.


                                         I.

     The underlying facts arise from a Norfolk Southern Railway

Company (“Norfolk Southern”) train derailment and collision that

occurred in January 2005, in Graniteville, South Carolina.                     The

collision caused the release of chlorine from a ruptured train

car tank.     The release of the chlorine gas led to death and

physical    injury   to   individuals,        damage   to   real   and    personal

property,    economic     loss,    and   evacuation     expenses.         Multiple

federal court actions ensued, were consolidated, litigated, and

settled in the U.S. District Court of South Carolina.                    Of import

to this appeal is the Curtis class action that covered harm

suffered by individuals and businesses located in the area close

to the derailment site.           See Curtis v. Norfolk S. Ry. Co., No.

1:05-CV-115, 2010 WL 2560679, at *1 (D.S.C. June 21, 2010).




                                              5
      Affected      class      members    could     opt     out     of    the    Curtis

settlement agreement by August 1, 2005. 1                        To opt out, class

members    had     to   mail   a   written    request       to    the    Class   Notice

Administrator, Epiq Systems (“Epiq”)--a neutral party appointed

by the district court to handle this matter.                     Upon receipt of an

opt-out form, Epiq stamped the form with a barcode and date-

stamp indicating the receipt date.                After the time to opt out

passed,    the     district     court    approved     the    Joint       Class   Action

Settlement for the Curtis class.

      In 2007, Appellants 2 sued Norfolk Southern in South Carolina

state court to recover for injuries they sustained as a result

of   the   train    derailment.         The   state   court       actions   proceeded

through the normal course of litigation until discovery.                          While

discovery in state court was ongoing, Norfolk Southern filed in

the District Court of South Carolina several motions for orders

to show cause and to enjoin the pending state court actions.

      1
       Appellants contend that the opt-out date was extended to
September 15, 2005. However, the record supports the conclusion
that the deadline was August 1, 2005.
      2
        Appellants are as follows: (1) Darryl McKenzie; (2)
Morris Lawn & Landscape (“Morris Lawn”); (3) Benny W. Hydrick;
(4) Donald Suell; (5) Wilber Calhoun Jr., as guardian ad litem
for RG, JS, and JC; (6) Gregory Hall; (7) Beverly J. Allen;
(8) John E. Coleman; (9) Valley Fair Baptist Church (“Valley
Fair”);    (10)    K&B   Properties;   (11)    William   Hall;
(12) Roosevelt Walker; (13) Darlene Champagne, as guardian ad
litem for DW I; and (14) Della Mae Jones as guardian ad litem
for DW II.



                                              6
Norfolk      Southern          argued     that       the       Curtis   class      settlement

agreement foreclosed the state court actions.

       Following          a     hearing        at     which       Appellants’        counsel,

Douglas Schmidt, was absent, the district court informed Norfolk

Southern that it would enjoin the state court actions and grant

Norfolk Southern’s request for attorneys’ fees associated with

the motions.             On February 8 and 9, 2010, the district court

entered       orders          granting        Norfolk          Southern’s       motions     for

injunctions.         The district court directed Norfolk Southern to

file     motions     and        affidavits          supporting      and      specifying      its

attorneys’ fees request.

       Subsequently,            Schmidt         filed           separate        motions     for

reconsideration or new trial on behalf of all Appellants except

Walker      and    K&B    Properties,         explaining         that   he   was   unable    to

attend      the    hearing       due     to    illness.           Additionally,          Norfolk

Southern filed several motions for attorneys’ fees, specifying

the actual amounts incurred in litigating each action.

       On    April       14,    2010,     at     a    hearing      on     the    motions     for

reconsideration           and     the     motions         for     attorneys’       fees,    the

district court denied the motions for reconsideration and took

the motions for attorneys’ fees under advisement.                                On June 21,

2010, the district court issued an order awarding attorneys’

fees to Norfolk Southern.                     The district court determined that

pursuant      to     28       U.S.C.     § 1927,         the     fees   should      be     borne

                                                     7
individually by Appellants’ counsel, Schmidt, because the state

court actions were filed and maintained as a result of counsel’s

errors      and    omissions.        On    July       20,   2010,    Appellants       filed

notices of appeal in this Court appealing the February 8 and 9

orders issuing the injunctions, the denial of the motions for

reconsideration, and the June 21 order awarding attorneys’ fees.

       On   October       26,    2010,    pursuant     to   Federal      Rule    of   Civil

Procedure 60(b), Appellants moved the district court to vacate

or    modify      the    injunctions      on   the      grounds     of   new     evidence.

Specifically,           three    Appellants--Coleman,            Hydrick,   and       Valley

Fair--moved the district court to vacate the injunctions issued

against their state actions on the basis that Epiq mishandled

and mismanaged their forms.                Appellants also moved the court to

vacate or modify the June 21 order on attorneys’ fees on the

basis that Schmidt’s actions were not a result of bad faith.

The district court denied the motion for reconsideration, with

one exception--the court reduced the attorneys’ fees award by

the   amount      attributable       to    obtaining        the    injunction     against

Valley Fair because the court determined that Valley Fair’s opt-

out    form    was      timely    filed,    although        it    was    filed    under   a




                                                  8
different name.     On April 19, 2011, Appellants appealed the Rule

60(b) decision.     We consolidated the first and second appeals. 3



                                     II.

                                     A.

      Appellants first challenge the district court’s injunctions

enjoining their state court actions.           We conclude that we have

no   jurisdiction   over   certain    untimely   filed   appeals   of   the

injunctions, and the remaining appeals are without merit.                We

address both points in turn.




      3
       While these appeals were pending, Appellants filed a
motion in this Court to strike objectionable portions of Norfolk
Southern’s Response Brief. As the Seventh Circuit has noted:

      The Federal Rules of Appellate Procedure provide a
      means to contest the accuracy of the other side’s
      statement of facts:    that means is a brief (or reply
      brief, if the contested statement appears in the
      appellee’s brief), not a motion to strike. Motions to
      strike sentences or sections out of briefs waste
      everyone’s time. . . . Motions to strike words,
      sentences, or sections out of briefs serve no purpose
      except to aggravate the opponent--and though that may
      have been the goal here, this goal is not one the
      judicial system will help any litigant achieve.
      Motions to strike disserve the interest of judicial
      economy.   The aggravation comes at an unacceptable
      cost in judicial time.

Redwood v. Dobson, 476 F.3d 462, 471 (7th Cir. 2007). In their
Reply Brief, Appellants had the opportunity to object or rebut
objectionable portions of Norfolk Southern’s Brief but failed to
do so. Hence, we deny the motion to strike.



                                           9
                                          i.

      “[T]he timely filing of a notice of appeal in a civil case

is a jurisdictional requirement.”                   Bowles v. Russell, 551 U.S.

205, 214 (2007).         Federal Rule of Appellate Procedure 4(a)(1)(A)

allows parties thirty days to file an appeal after the entry of

the district court’s final judgment or order.                        When a party

files a Rule 59 motion for new trial or reconsideration, or a

Rule 60 motion within 28 days after judgment, the time to file

an appeal runs from the entry of the district court’s order

disposing of such motion.          Fed. R. App. P. 4(a)(4)(A).

      With    the    exception     of    the    injunction    appeals       filed    by

Coleman, Hydrick, and Valley Fair, all the other challenges to

the     injunctions     are     untimely.       Specifically,     Appellants        K&B

Properties and Walker did not move for reconsideration of the

February 8 and 9 district court orders enjoining their state

court actions.         Consequently, their appeals filed on July 20,

2010--more than five months after the injunctions issued against

their    state   court    actions--are         time-barred.       Accordingly,       we

dismiss      their     appeals     of     the       injunctions     for     lack     of

jurisdiction.

        Further, the appeals of the injunctions filed by Appellants

McKenzie,     Morris     Lawn,     Suell,       Gregory   Hall,     William       Hall,

Calhoun, Allen, Champagne, and Jones are also dismissed for lack

of      jurisdiction.         Although      these      Appellants         moved     for

                                               10
reconsideration, their time to appeal the denial of the request

for reconsideration lapsed thirty days from the district court’s

denial of the motions on April 14, 2010.                               Thus, their appeals

filed on July 20, 2010, were untimely.

       Appellants contend that because the district court took the

attorneys’ fees matter under advisement, the district court’s

decision on the motions for reconsideration was not final.                                       We

disagree.         28     U.S.C       § 1291      confers        on     courts       of    appeals

jurisdiction over “final” decisions of federal district courts.

A district court’s order is “final” for purposes of 28 U.S.C.

§ 1291 if it “‘ends the litigation on the merits and leaves

nothing      for       the     court       to    do    but     execute       the    judgment.’”

Carolina Power & Light Co. v. Dynegy Mktg. & Trade, 415 F.3d

354, 358 (4th Cir. 2005) (quoting Catlin v. United States, 324

U.S.    229,       233       (1945)).       “[A]n      unresolved          motion    to     assess

attorneys[’] fees as costs to the prevailing party generally

does   not     prevent         a    judgment      on    the    merits      from     being    final

because      it    does       not    call       into    question       a    decision      on    the

merits.”       Carolina Power & Light Co., 415 F.3d at 358; see Fed.

R. Civ. P. 58(e). If, however, the “substantive law requires

[attorney’s        fees]       to     be    proved      at     trial    as    an    element      of

damages,”      then       “a       judgment      on    liability       that    does       not   fix

damages is not a final judgment.”                           Fed. R. Civ. P. 54(d)(2)(A);

Carolina Power & Light Co., 415 F.3d at 358.

                                                       11
      Here,    Norfolk    Southern’s       motion       for   attorneys’      fees   is

collateral and does not call into question the district court’s

decision to enjoin the state court actions.                       The only condition

precedent to recovering attorneys’ fees is Norfolk Southern’s

successful     litigation      of   the    injunctions. 4          See   Budinich    v.

Becton Dickinson & Co., 486 U.S. 196, 198-203 (1988) (holding

that a motion for attorneys’ fees was collateral and did not

prevent the district court’s order from being a final judgment).

Thus, the district court’s denial of the motions to reconsider

the   injunctions       was    appealable       before    the      determination     of

attorneys’ fees.        Accordingly, these appeals of the injunctions

are untimely and dismissed for lack of jurisdiction.

                                          ii.

      The only injunction appeals that survive the jurisdictional

time-bar are those filed by Appellants Coleman, Hydrick, and

Valley Fair because the district court ruled on their subsequent

Rule 60(b) motion on March 29, 2011, and they timely filed their

appeals   on    April    19,    2011.       We       review   a    district   court’s

decision to enjoin state court actions for abuse of discretion.




      4
        The district court’s decision to set aside Norfolk
Southern’s   fees  attributable  to   Valley  Fair   upon  its
determination that Valley Fair properly opted out evinces this
point.



                                                12
In re Am. Honda Motor Co., Inc., 315 F.3d 417, 434 (4th Cir.

2003).

       We    conclude    that      the   district         court    did    not    abuse      its

discretion in finding that Appellants Hydrick and Coleman failed

to    opt    out    of      the     Curtis     class        settlement.         The    record

demonstrates that Coleman submitted an opt-out form but later

participated in the settlement and received payments.                                 Hydrick

produced a copy of an opt-out form without a barcode and date-

stamp to prove receipt by Epiq, and the affidavit submitted by

Schmidt’s     office     manager        claiming        that     the   opt-out    form      was

timely submitted fails to indicate who mailed the form or that

the form was sent before the deadline.                      Thus, the district court

did    not    abuse      its      discretion        in    denying        the    motion      for

reconsideration filed by Hydrick and Coleman.

       Regarding Valley Fair, we read the district court’s March

29, 2011 opinion as lifting the injunction against Valley Fair.

Therefore,      Valley         Fair’s     challenge         of     the    injunction         is

dismissed as moot.             For all these reasons, the appeals of the

injunctions are dismissed in part and affirmed in part.

                                              B.

       Appellants     next        challenge    the       district      court’s    entry       of

attorneys’ fees against Schmidt under 28 U.S.C. § 1927.                                    Prior

to    addressing      the      merits    of   the        § 1927    sanctions,         we   must

determine whether we have jurisdiction.

                                                   13
                                              i.

      Federal       Rule    of       Appellate     Procedure      3(c)(1)(A)      requires

that a notice of appeal “specify the party or parties taking the

appeal by naming each one in the caption or body of the notice.”

Schmidt is not a named party in the notice of appeal of the

attorneys’ fees.           As a result, Norfolk Southern contends that we

lack jurisdiction over the appeal of the attorneys’ fees because

there is a “risk of ambiguity and confusion” as to who the

appellant is and what matter is appealed.                            See Newport News

Holdings Corp. v. Virtual City Vision, Inc., 650 F.3d 423, 443

(4th Cir. 2011) cert. denied, 132 S. Ct. 575, 181 L. Ed. 2d 425

(2011).

      We find that there is no ambiguity or confusion because the

attorneys’ fees were assessed individually against Schmidt, and

only Schmidt was entitled to bring the appeal of this sanction.

As   such,    we    have    jurisdiction         to     address    the   merits    of   the

appeal of attorneys’ fees.

                                             ii.

      On the merits, Appellants contend the district court erred

in   issuing       attorneys’         fees   against      Schmidt    under   28    U.S.C.

§ 1927.      We    review        a    district      court’s       decision   to     impose

sanctions pursuant to § 1927 for abuse of discretion.                              Miltier

v. Beorn, 896 F.2d 848, 855 (4th Cir. 1990).



                                                   14
       Pursuant to § 1927, “Any attorney . . . who so multiplies

the proceedings in any case unreasonably and vexatiously may be

required by the court to satisfy personally the excess costs,

expenses,      and    attorneys’      fees      reasonably     incurred      because    of

such conduct.”         We have repeatedly stated that “[b]ad faith on

the part of the attorney is a precondition to imposing fees

under § 1927.”          E.E.O.C. v. Great Steaks, Inc., 667 F.3d 510,

522 (4th Cir. 2012) (citing Chaudhry v. Gallerizzo, 174 F.3d

394, 411 n.14 (4th Cir. 1999); Brubaker v. City of Richmond, 943

F.2d 1363, 1382 n. 25 (4th Cir. 1991).

       Relying on Sanford v. Virginia, 689 F. Supp. 2d 802 (E.D.

Va.    2010),       Norfolk   Southern       contends        that   § 1927     does    not

require a finding of bad faith.                   Sanford discusses our line of

cases which clearly state the proposition that bad faith is a

precondition to sanctions under § 1927.                      689 F. Supp. 2d at 806-

808.    Sanford asserts, however, that our decisions merely state

this proposition in dicta because a finding of bad faith was not

necessary      to    reach    our    conclusions        in    those   cases.     Id.    We

disagree.      In    Great    Steaks,     our    most    recent     decision    on    this

issue decided after Sanford, we restated the proposition that

bad    faith    is    required      for   § 1927      sanctions     and   affirmed     the

district court’s denial of the defendant’s motion for attorneys’

fees where the district court expressly found that the plaintiff



                                                 15
had not acted in bad faith.               667 F.3d at 522-23. 5       Accordingly,

this       Circuit    requires    a    finding   of   bad   faith    prior     to   the

imposition of sanctions pursuant to § 1927.

       Here,     in    awarding       attorneys’   fees,    the     district    court

stated:

       having observed Plaintiff’s counsel and judged his
       credibility, and having listened to his arguments in
       justification for his actions, finds that Plaintiffs’
       counsel’s errors and omissions are the result of
       inefficiency and lack of competence in dealing with an

       5
        We recognize that our sister circuits have come to
differing conclusions on whether bad faith is a precondition to
imposing sanction under § 1927. The First, Fifth, Sixth,
Seventh, Eight, Tenth, and Eleventh Circuits have found bad
faith is not a predicate to imposing § 1927 sanctions.       See
Rentz v. Dynasty Apparel Indus., Inc., 556 F.3d 389, 396 (6th
Cir. 2009); Hamilton v. Boise Cascade Exp., 519 F.3d 1197, 1202
(10th Cir. 2008); Amlong & Amlong, P.A. v. Denny’s, Inc., 500
F.3d 1230, 1241 (11th Cir. 2007); Clark v. United Parcel Serv.,
Inc., 460 F.3d 1004, 1011 (8th Cir. 2006); Claiborne v. Wisdom,
414 F.3d 715, 721 (7th Cir. 2005); Edwards v. Gen. Motors Corp.,
153 F.3d 242, 246 (5th Cir. 1998); Cruz v. Savage, 896 F.2d 626,
631–32 (1st Cir. 1990). The Second and Third Circuits have held
that bad faith is necessary to impose sanctions under § 1927.
See Oliveri v. Thompson, 803 F.2d 1265, 1273 (2d Cir. 1986);
Baker Indus., Inc. v. Cerberus Ltd., 764 F.2d 204, 209 (3d Cir.
1985).   The Ninth Circuit’s case law is unclear on this issue,
see In re Girardi, 611 F.3d 1027, 1061 (9th Cir. 2010), and the
D.C. Circuit has not decided this issue, see LaPrade v. Kidder
Peabody & Co., Inc., 146 F.3d 899, 905 (D.C. Cir. 1998).

     Recognizing this split in authorities, we are nonetheless
bound by our precedent which explicitly states bad faith is a
precondition to imposing sanctions under § 1927.   United States
v. Chong, 285 F.3d 343, 346 (4th Cir. 2002) (“It is well settled
that a panel of this [C]ourt cannot overrule, explicitly or
implicitly, the precedent set by a prior panel of this [C]ourt.
Only the Supreme Court or this [C]ourt sitting en banc can do
that.”) (citation and quotation marks omitted)).



                                              16
      excessive number of clients, and not the result of bad
      faith or willful misconduct.

Curtis v. Norfolk S. Ry. Co., No. 1:05-CV-115, 2010 WL 2662269,

at   *3   (D.S.C.   June   21,    2010)   (emphasis    added).     In   denying

Appellants’ Rule 60(b) motion for relief from attorneys’ fees,

the district court stated:

      Certainly[,] the court was loath to reach a conclusion
      that [Schmidt] intentionally and with improper motive
      disregarded evidence of res judicata presented by
      Defendant with respect to the state court proceedings
      at issue. It is the court’s expectation that all
      counsel appearing before the court will comport
      themselves   in    accordance    with   the   rules   of
      professional conduct, and the court was willing to
      give [Schmidt] the benefit of the doubt by not making
      a finding of bad faith.     Nevertheless, sanctions are
      appropriate.    Counsel engaged in reckless behavior
      that   demonstrated   a   conscious   disregard   for  a
      foreseeable    risk    that    proceedings    would   be
      unreasonably and vexatiously multiplied.

(J.A. 1968-69 (emphasis added).)            We note that at the time of

its decision, the district court did not have the benefit of

Great Steaks.       Yet, our precedent on the necessity of a bad

faith finding prior to the imposition of § 1927 sanctions is

clear.     Because the district court expressly and specifically

refrained    from   finding      bad   faith,   it   was   error   to   impose

attorneys’ fees on Schmidt.            Accordingly, the district court’s

order imposing attorneys’ fees is reversed.




                                          17
                                    III.

     For   the   reasons   stated   above,   we   dismiss   in   part,   and

affirm in part, the appeals of the injunctions.             Additionally,

we reverse the award of attorneys’ fees issued against Schmidt.



                                                       AFFIRMED IN PART,
                                                      DISMISSED IN PART,
                                                    AND REVERSED IN PART




                                       18
