UNPUBLISHED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.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM:
Appellants challenge the district courts 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.
physical
property,

The release of the chlorine gas led to death and

injury

to

economic

individuals,
loss,

and

damage

evacuation

to

real

and

expenses.

personal
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).

Affected

class

members

could

opt

out

settlement agreement by August 1, 2005. 1

members

had

to

mail

written

request

of

the

Curtis

To opt out, class

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 datestamp indicating the receipt date.
passed,

the

district

court

After the time to opt out

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.

Norfolk

Southern

argued

that

the

Curtis

class

settlement

agreement foreclosed the state court actions.

Following

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 Southerns request for attorneys fees associated with
the motions.
entered

On February 8 and 9, 2010, the district court

orders

granting

Norfolk

Southerns

motions

for

injunctions.

The district court directed Norfolk Southern to

file

and

motions

affidavits

supporting

and

specifying

its

motions

for

attorneys fees request.

Subsequently,

Schmidt

filed

separate

reconsideration or new trial on behalf of all Appellants except

Walker

and

attend

the

K&B

Properties,

hearing

due

explaining

to

that

illness.

he

was

unable

Additionally,

to

Norfolk

Southern filed several motions for attorneys fees, specifying

the actual amounts incurred in litigating each action.
On

April

14,

reconsideration

and

2010,
the

at

hearing

motions

for

on

the

motions

for

fees,

the

attorneys

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.
pursuant

to

28

U.S.C.

The district court determined that

1927,

the
7

fees

should

be

borne

individually by Appellants counsel, Schmidt, because the state

court actions were filed and maintained as a result of counsels
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

Specifically,

injunctions
three

on

the

grounds

Appellants--Coleman,

of

new

Hydrick,

evidence.

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 Schmidts 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 Fairs optout

form

was

timely

filed,

although

it

was

filed

under

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 courts injunctions
enjoining their state court actions.
no

jurisdiction

over

certain

We conclude that we have

untimely

filed

appeals

of

the

injunctions, and the remaining appeals are without merit.

We

address both points in turn.

While these appeals were pending, Appellants filed a

motion in this Court to strike objectionable portions of Norfolk
Southerns Response Brief. As the Seventh Circuit has noted:
The Federal Rules of Appellate Procedure provide a
means to contest the accuracy of the other sides
statement of facts:
that means is a brief (or reply
brief, if the contested statement appears in the
appellees brief), not a motion to strike. Motions to
strike sentences or sections out of briefs waste
everyones 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 Southerns Brief but failed to
do so. Hence, we deny the motion to strike.

i.
[T]he timely filing of a notice of appeal in a civil case
is a jurisdictional requirement.
205, 214 (2007).

Bowles v. Russell, 551 U.S.

Federal Rule of Appellate Procedure 4(a)(1)(A)

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

the district courts 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 courts order
disposing of such motion.
With

the

exception

Fed. R. App. P. 4(a)(4)(A).

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

dismiss

court

their

actions--are

appeals

of

time-barred.

the

Accordingly,

injunctions

for

lack

we
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
10

Appellants

moved

for

reconsideration, their time to appeal the denial of the request

for reconsideration lapsed thirty days from the district courts
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 courts
decision on the motions for reconsideration was not final.
disagree.

28

U.S.C

1291

confers

on

courts

of

We

appeals

jurisdiction over final decisions of federal district courts.

A district courts 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

because

prevent
it

merits.

does

judgment

not

call

on

into

the

merits

question

from

being

decision

final

on

the

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

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

[attorneys
damages,

fees]

then

to

be

proved

judgment

on

at

trial

liability

damages is not a final judgment.

as
that

an

element

does

not

of
fix

Fed. R. Civ. P. 54(d)(2)(A);

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

11

Here,

Norfolk

Southerns

motion

for

attorneys

fees

is

collateral and does not call into question the district courts
decision to enjoin the state court actions.

The only condition

precedent to recovering attorneys fees is Norfolk Southerns

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 courts order from being a final judgment).
Thus, the district courts denial of the motions to reconsider
the

injunctions

attorneys fees.

was

appealable

before

the

determination

of

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

district

courts

decision to enjoin state court actions for abuse of discretion.

The district courts decision to set aside Norfolk

Southerns
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 datestamp to prove receipt by Epiq, and the affidavit submitted by
Schmidts

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.
did

not

abuse

its

discretion

in

Thus, the district court

denying

the

motion

for

reconsideration filed by Hydrick and Coleman.

Regarding Valley Fair, we read the district courts March
29, 2011 opinion as lifting the injunction against Valley Fair.
Therefore,

Valley

Fairs

dismissed as moot.

challenge

of

the

injunction

is

For all these reasons, the appeals of the

injunctions are dismissed in part and affirmed in part.

B.
Appellants

next

challenge

the

district

courts

entry

attorneys fees against Schmidt under 28 U.S.C. 1927.

to

addressing

the

merits

of

the

1927

determine whether we have jurisdiction.

13

sanctions,

we

of

Prior
must

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

1927.

We

attorneys
review

fees

against

district

Schmidt

courts

under

decision

28

U.S.C.

to

impose

sanctions pursuant to 1927 for abuse of discretion.

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

14

Miltier

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

such conduct.

fees

reasonably

incurred

because

of

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

require a finding of bad faith.

that

1927

does

not

Sanford discusses our line of

cases which clearly state the proposition that bad faith is a

precondition to sanctions under 1927.
808.

689 F. Supp. 2d at 806-

Sanford asserts, however, that our decisions merely state

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

necessary

to

reach

disagree.

In

Great

our

conclusions

Steaks,

our

most

in

those

recent

cases.

decision

Id.
on

We

this

issue decided after Sanford, we restated the proposition that

bad

faith

is

required

for

1927

sanctions

and

affirmed

the

district courts denial of the defendants motion for attorneys

fees where the district court expressly found that the plaintiff

15

had not acted in bad faith.

this

Circuit

requires

667 F.3d at 522-23. 5

finding

of

bad

faith

Accordingly,
prior

to

the

imposition of sanctions pursuant to 1927.

Here,

in

awarding

attorneys

fees,

the

district

court

stated:
having observed Plaintiffs counsel and judged his
credibility, and having listened to his arguments in
justification for his actions, finds that Plaintiffs
counsels 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. Dennys, 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,
63132 (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 Circuits 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 courts 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.
refrained

Because the district court expressly and specifically

from

finding

bad

attorneys fees on Schmidt.

faith,

it

was

error

to

impose

Accordingly, the district courts

order imposing attorneys fees is reversed.

17

III.
For

the

reasons

stated

above,

we

dismiss

affirm in part, the appeals of the injunctions.

in

part,

and

Additionally,

we reverse the award of attorneys fees issued against Schmidt.

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

18