CASE NO. 08-3187
IN THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT
SAMUEL K. LIPARI,
Appellant,
v. NEOFORMA, INC., ROBERT J. ZOLLARS, VOLUNTEER HOSPITAL ASSOCIATION, CURT NONOMAQUE, UNIVERSITY HEALTH SYSTEM CONSORTIUM, ROBERT J. BAKER, U.S. BANCORP N.A., U.S. BANK NATIONAL ASSOCIATION, JERRY A. GRUNDHOFER, ANDREW CECERE, PIPER JAFFRA Y COMPANIES, ANDREW S. DUFF, SHUGHART THOMSON & KILROY, WATKINS BOULWARE, P.C., and NOVATION, LLC
Defendants - Appellees, On Appeal from the United States District Court for the District of Kansas
APPELLEES'
MOTION TO DISMISS APPEAL
TO THE HONORABLE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT: Pursuant to Fed. R. App. P. 27, Appellees Neoforma, Volunteer Consortium,
Hospital
Association,
Curt
Nonomaque,
Inc., Robert J. Zollars,
University
Health
Robert J. Baker, U.S. Bancorp N.A., U.S. Bank National
Jerry A. Grundhofer,
Andrew
Cecere, Piper Jaffray Companies,
System
Association,
Andrew S. Duff,
Shughart Thomson & Kilroy, Watkins Boulware, P.e., and Novation, LLC (hereinafter, collectively,
"Appel1ees")
file this Motion to Dismiss Appeal.
Appellees
would
respectfully show this Court: I. Introduction The appeal should be dismissed for two independent reasons. standing to pursue this appeal. Lipari's appeal is untimely.
First, Lipari lacks
Lipari was not a party to the action below.
Second,
Lipari failed to file a notice of appeal within 30 days after
the striking of his first Rule 60(b) motion to reopen the case. Lipari cannot remedy this failure, as he attempts to do here, by filing a second Rule 60(b) motion on the same grounds and then seeking review of the court's order striking the second motion. II. Procedural History On October 22, 2002, Plaintiff in the case below, Medical Supply Chain, Inc. ("MSC") filed a Complaint in the U.S. District Court for the District of Kansas al1eging numerous claims, including federal antitrust claims, arising from the al1eged refusal of U.S. Bank to provide certain escrow account services. See Medical Supply Chain, Inc. v. US Bancorp, et al., No. 02-2539-CM, 2003 WL 21479192, *1 (D. Kan., June 16, 2003) ("Medical Supply J").
On June 16, 2003, the district court dismissed the Medical
Supply J Complaint. Jd. This Court affirmed the dismissal and held that the appeal was not supported by law or facts. 112 Fed. Appx. 730 (10th Cir. 2004) (unpublished) (ordering MSC and its counsel to show cause why they should not be sanctioned). On March 9, 2005, MSC filed this action, Medical Supply II, in the u.S. District Court for the Western District of Missouri.
MSC's Complaint in this case reasserted its 2
previously dismissed federal and state law claims. The Missouri federal court transferred this action to Kansas and, on March 7, 2006, the U.S. District Court for the District of Kansas entered an Order dismissing MSC's claims and granting Motions for Sanctions filed by several of the Appel1ees. See 419 F. Supp.2d 1316, 1335-36 (D. Kan. 2006). On March 14, 2006, the Chief Executive Officer of MSC, Samuel K. Lipari, who is neither a party nor an attorney representing a party, purported to file on behalf of himself and MSC, a Motion for Reconsideration
of the March 7, 2006 Order.
See
Medical Supply Chain, Inc. v. Neoforma, Inc., 508 F.3d 572, 574 (lOth Cir. 2007)(setting forth procedural history).
Lipari was never substituted as a party and no attorney ever
executed the Motion for Reconsideration or filed a pleading to adopt it. On August 7, 2006, the district court entered an order striking the Motion for Reconsideration filed by Lipari. Medical Supply Chain, Inc. v. Neoform a, Inc., 2006 WL 2570312 (D. Kan. Aug 07, 2006). The Court found that Lipari was not a proper party to the action and that he could not represent MSC in this action. Id. Further, the District Court noted that MSC "has a history of filing frivolous lawsuits and motions, for which the Court has sanctioned plaintiff on several occasions"
and warned that "[fJuture
attempts to resurrect this case could result in the court imposing additional sanctions." See id. at *3. On September 8, 2006, MSC's attorney filed, on behalf of MSC and Lipari, a Notice of Appeal on September 8, 2006. In that appeal, MSC and Lipari sought to overturn the dismissal of the action and to overrule the district court's refusal to substitute
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Lipari as party-plaintiff.
This Court dismissed that appeal as untimely.
See Medical
Supply Chain, Inc. v. Neoforma, Inc, 508 F.3d 572 (10th Cir. 2007). On February 13, 2008, Lipari filed a Rule 60(b) Motion arguing that MSC's claims should be reinstated and that Lipari had standing to proceed on those claims. Among other things, Lipari's Rule 60(b) motion argued that the district court was biased against Lipari. See App. Rec. at Docket Entry 122. The district court struck the Rule 60(b) Motion on March 31, 2008, noting that "Mr. Lipari's actions and filings appear to violate Federal Rule of Civil Procedure II (b)" and ordering him to show cause why he has not violated Rule 11(b). See App. Rec. at Docket Entry 127. Instead of timely appealing his first Rule 60(b) Motion, Lipari filed a second motion on April 8,2008 and again argued, under both Rule 60(b) and Rule 59(e), that the case should be reopened with Lipari as plaintiff.
App. Rec. at Docket Entry 128. On
July 7, 2008, the district court struck from the record Lipari's second Rule 60(b) motion. App. Rec. at Docket Entry 135. Lipari now seeks to appeal the court's striking from the record of his second Rule 60(b) motion. For the Court's
convenience,
the procedural history discussed above can be
summarized as follows: October 22, 2002
Medical Supply Chain I is filed
June 16, 2003
Medical Supply Chain I is dismissed
March 9, 2005
Medical Supply Chain II is filed
March 7, 2006
Medical Supply Chain II is dismissed
March 14,2006
Lipari files Motion for Reconsideration 4
August 7, 2006
District Court strikes Motion for Reconsideration
September 8, 2006
Lipari and MSC appeal
November 16, 2007
Appeal dismissed as untimely
February 13, 2008
Lipari files Rule 60(b) Motion
March 31, 2008
District Court strikes Rule 60(b) Motion
April 8, 2008
Lipari files second Rule 60(b) Motion grounds as February 13,2008 motion
July 7, 2008
District Court strikes Rule 60(b) Motion
July 8, 2008
Lipari files Notice of Appeal
on same
III. Argument and Authorities A.
Lipari Lacks Standing to Appeal The first reason this appeal should be dismissed is because Lipari lacks standing to
appeal. Lipari seeks to appeal the district court's refusal to reconsider a judgment in an action to which Lipari is not a party. "It is well-settled
standing to appeal."
that, absent extraordinary
circumstances,
a non-party lacks
Hutchinson v. Pfeil, 211 F.3d 515, 519 (10th Cir. 2000).
The
extraordinary circumstances that would permit a non-party to appeal are not present in this case. See Coffey v. Whirlpool Corp., 591 F.2d 618,619 (10th Cir.1979) (holding that insurer lacked standing to appeal where district court denied insured's motion to vacate dismissal to permit substitution of insurer as plaintiff).
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On the contrary, the circumstances of this case compel the dismissal of this appeal. First, Lipari and MSC have already sought appellate review of the very issues Lipari raises in his Notice of Appeal and that prior appeal was dismissed as untimely.
This
Court should reject his attempt to revive these stale issues by his repeated filings in district court (in defiance of the district court's orders that he stop).
Second, as the
district court repeatedly held, there was no reason to permit the substitution of Lipari as party-plaintiff because (1) MSC, even after it was dissolved, could proceed in its own name and (2) the case was already dismissed by the time Lipari sought to substitute in as plaintiff and, thus, the substitution would serve no purpose.
In short, the case was over,
and Lipari's serial filings since the dismissal have only served as vehicles for Lipari's baseless attacks on the integrity of the district court.
B.
Lipari's Appeal is Untimely This Court can exercise jurisdiction over this appeal only if Lipari's Notice of
Appeal is timely filed. Allender v. Raytheon Aircraft Co., 439 F.3d 1236, 1239 (lOth Cir. 2006). As the U.S. Supreme Court has noted, the 30 day deadline of Federal Rule of Appellate Procedure 4 is both "mandatory and jurisdictional."
Browder v. Director, Dept.
of Corrections of Illinois, 434 U.S. 257, 264 (l978) (noting that the purpose of the time limit is "to set a definite point of time when litigation shall be at an end, unless within that time the prescribed application has been made; and if it has not, to advise prospective appellees that they are freed of the appellant's demands.") quotation omitted).
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(citations
and internal
If Lipari had standing to seek appellate review of the denial of his Rule 60(b) motion, he was required to do so within 30 days of the order on his first Rule 60(b) motion, which was struck from the record on March 28, 2008. He failed to do so. Lipari cannot remedy that failure to timely file an appeal by filing a second Rule 60(b) motion and appealing the denial of the second motion. Murray v. District of Columbia, 52 F.3d 353,356 (D.e. Cir. 1995) ("Appellants' attempt to appeal the denial of their second [Rule 60(b)] motion is therefore nothing more than an untimely appeal of their first [Rule 60(b)] motion, and we will not indulge the ruse."); Logan v. Evans, 86 Fed. Appx. 996 (7th Cir. 2004)
(not selected
for publication
in the federal
reporter,
No. 03-
1343)(rejecting attempt to appeal a second Rule 60(b) motion when no timely appeal was taken from the first Rule 60(b) motion). Because Lipari's Notice of Appeal was not filed within 30 days of the order on the first Rule 60(b) Motion, it is untimely and this Court lacks jurisdiction over this appeal. WHEREFORE,
PREMISES
CONSIDERED,
Appellees
pray that this Court
dismiss this appeal and order all costs to be borne by the party incurring those costs. Appellees also pray that this Court grant such other and further relief to which Appellees may be justly entitled.
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Respectfully submitted,
JIµ(~
if
MARK A. OLTHOFF KS FED #70339 SHUGHART THOMSON & KILROY, P.e. 1700 Twelve Wyandotte Plaza 120 W 12th Street Kansas City, Missouri 64105-1929 (816) 421-3355 (816) 374-0509 (FAX)
[email protected] ANDREW M. DeMAREA KS #16141 SHUGHART THOMSON & KILROY, P.C. 32 Corporate Woods, Suite 1100 9225 Indian Creek Parkway Overland Park, Kansas 66210 (913) 451-3355 (913) 451-3361
[email protected] ATTORNEYS FOR DEFENDANTS U.S. BANCORP, U.S. BANK NATIONAL ASSOCIATION, PIPER JAFFRA Y COMPANIES, JERRY A. GRUNDHOFER, ANDREW CECERE A~J1ANDREW S. DUFF/) /
J
OH~ K. POWER KS FED #70448 CH BLACKWELL SANDERS LLP One Kansas City Place, Suite 2300 1200 Main Street Kansas City, Missouri 64105 (816) 421-4800 (816) 421-0596 (FAX)
[email protected] v
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KATHLEEN BONE SPANGLER VINSON & ELKINS L.L.P. 2300 First City Tower 1001 Fannin Houston, Texas 77002 (713) 758-2853 (713) 615-5250 (FAX)
[email protected] ATTORNEYS FOR DEFENDANTS NOV ATION, LLC, VOLUNTEER HOSPITAL ASSOCIATION, CURT NONOMAQUE, UNIVERSITY HEAL THSYSTEM CONSORlIfuM, AND ROBF!~.T J. BAKER
One Kansas City Place, Suite 2300 1200 Main Street Kansas City, Missouri 64105 (816) 421-4800 (816) 421-0596 (FAX)
[email protected] STEPHEN N. ROBERTS NOSSAMAN LLP 34th Floor 50 California Street San Francisco, California 94111 (415) 438-7213 (415) 398-2438 (FAX)
[email protected] ATTORNEYS FOR DEFENDANTS ROBERT J. ZOLLARS AND NEOFORMA, INe.
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WILLIAM E. QUIRK SHUGHART THOMSON & KILROY, P.e. 1700 Twelve Wyandotte Plaza 120 W 12th Street Kansas City, Missouri 64105-1929 (816) 421-3355 (816) 374-0509 (FAX)
[email protected] ATTORNEYS FOR DEFENDANT SHUGHART THOMSON & KILROY, P.e.
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CERTIFICATE OF SERVICE I hereby certify that on this 25th day of July, 2008, a true and accurate copy of the foregoing Appellees' Motion to Dismiss Appeal was forwarded by
u.s.
mail, postage
prepaid and properly addressed, to: Samuel K. Lipari 297 NE Bayview Lee's Summit, M 0 64064
CERTIFICATE OF DIGITAL SUBMISSION I hereby certify that (1) all required privacy redactions have been made and, with the exception of those redactions, every document submitted in Digital Form or scanned PDF format is an exact copy of the written document filed with the Clerk, and; (2) the digital submissions have been scanned for viruses with McAfee VirusScan Enterprise Workstation, version 8.5.0.781, updated July 24, 2008, and, according to the program, are free of viruses.
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