* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order (continued...) 

## F I L E D United States Court of Appeals Tenth Circuit 

### JAN 28 1998 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

RICHARD R. MARKGRAF; ROBERT COLLETT; ESTHER KATZ; WILLIAM WESTWOOD; WALTER H. VEIT; EVANGELOS STATHAKOS; RICHARD HADDAD; SIERRA ENTERPRISES, INC. PROFIT SHARING PLAN; RONALD KASSOVER; SEE MORE LIGHT INVESTMENTS; FRITZ D. KAHLENBERG; JOHN W. MCLAMB, JR.,

Plaintiffs-Appellees,

v. STORAGE TECHNOLOGY CORPORATION,

Defendant.

DR. SEYMOUR LICHT,

Objector-Appellant. No. 97-1166 (D.C. No. 92-B-750) (D. Colo.)

ORDER AND JUDGMENT ** (...continued)

and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. -2- Before PORFILIO , KELLY , and HENRY , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The c ase is therefore ordered submitted without oral argument. This appeal arises out of the settlement of a secur ities fraud class action against Storage Technology Corporation and several of its officers and directors. See generallyIn re Storage Tech. Corp. Sec. Litig. , 147 F.R.D. 232 (D. Colo. 1993); In re Storage Tech. Corp. Sec. Litig. , 804 F. Supp. 1368 (D. Colo. 1992). Appearing pro se, Seymour Licht appeals the distric t court’s denial of his objections to the amount of fees and expenses paid to the claims administrator out of the settlement’s common fund. Licht is a partne r in a partnership that is a class member and named plaintiff in this case. On December 1, 1995, the district court approved a settlement and distribution plan. On February 18, 1997, plaintiff s’ co-lead counsel moved for entry of an administrative order that provided, int er alia, for payment of the-3-

claims administrator’s fees and expenses. The district court granted the motion the same day. Licht received a copy of counsel’s m otion on February 19 and filed his objections to the motion on February 21, the day he received a copy of the court’s administrative order granting the motion. On February 24, he filed a motion for reconsideration. The district court ord ered a response and Licht filed a reply. On March 20, the court denied the motion for reconsideration. Licht filed his notice of appeal on April 14. Plaintiffs have filed a motion to dismiss the appea l. They contend that Licht’s notice of appeal was untimely and that Licht lacks standing to appeal because he is not a party to the litigation. Theirfirst contention clearly lacks merit. Licht filed his motion for reconsideration, which we construe as a motion to alter or amend the judgment under Fed. R. Civ. P . 59(e), see Hatfield v. Board of County Comm’rs , 52 F.3d 858, 861 (10th Cir. 1995), within ten day s of the district court’s administrative order, and it there fore tolled the time for filing the notice of appeal until the court ruled on the motio n, see id. ; Fed. R. App. P. 4(a)(4). Licht filed his notice of appeal within t hirty days after the court denied his motion for reconsideration and therefore was ti mely. Plaintiffs contend Licht lacks standing because he did not intervene in the case and because in his individual capacity, he is not a class member. Were Licht challenging the validity of the settlement agreement itself, his failure to intervene-4-

might be determinative. See Gottlieb v. Wiles , 11 F.3d 1004, 1009 (10th Cir. 1993). However, he is challenging only the award o f the claims administrator’s fees and expenses, and his failure to intervene doe s not preclude him from appealing the award. See Rosenbaum v. MacAllister , 64 F.3d 1439, 1442-43 (10th Cir. 1995) (holding nonintervening class memb er had standing to challenge award of attorney fees). Plaintiffs also contend that because Licht as an in dividual did not own any stock in Storage Technology and did not file a clai m as an individual to settlement proceeds, he is not a class member in his individua l capacity. See Uselton v. Commercial Lovelace Motor Freight, Inc. , 9 F.3d 849, 854-55 (10th Cir. 1993) (holding that only class members had standing to ob ject to award of attorney fees paid from class settlement fund). Plaintiffs recog nize that a partnership in which Licht is the senior partner, See More Light Investm ents, is a class member as well as a named plaintiff in this case and that the part nership received proceeds from the settlement. Having apparently learned that as a non-lawyer, he may not represent the partnership in court, see Seymour Licht v. America West Airlines (In re Amer ica West Airlines) , 40 F.3d 1058, 1059 (9th Cir. 1994), Licht has pro ceeded in this case in his own name. However, whether Licht may c hallenge the claims administration fees and expenses appears to be more properly viewed as a real--5-

party-in-interest issue rather than a standing issu e. See FDIC v. Bachman , 894 F.2d 1233, 1235-36 (10th Cir. 1990) (“Standing pert ains to suits brought by individuals or groups challenging governmental acti on which has allegedly prejudiced their interests. On the other hand, the real party in interest question is raised in those much rarer instances between privat e parties where a plaintiff’s interest is not readily discernible.”) (quotation o mitted). Because unlike a lack of standing, a real-party-in-interest defense is waivable, see id. at 1236, and since plaintiffs did not raise this issue in the districtcourt, they may not raise it for the first time on appeal. However, because the merits of the appeal are much easier to resolve against Licht than the jurisdictional is sue, we will assume jurisdiction without deciding the matter and proceed to the meri ts. Cf. Norton v. Matthews , 427 U.S. 524, 532 (1976) (noting that the Court res erves “difficult questions of our jurisdiction when the case alternatively could be resolved on the merits in favor of the same party”). Licht first contends that the district court violat ed his due process rights by issuing the administrative order without giving himnotice and an opportunity to object. In ruling on his motion for reconsideratio n, the district court fully considered his objections but rejected them and rea ffirmed its earlier order. Licht was thus given an opportunity to be heard, and ther e is no due process violation. Licht contends that based on his “professional opin ion” as a “PHD in-6-

engineering” with a “degree in mathematical statist ics,” Appellant’s Br. at 20, the amount of fees charged per claim evaluation was exc essive. He also contends that the charge for envelopes and copying costs was too high. We review the award of claims administration fees and expenses fo r abuse of discretion. Cf. Rosenbaum , 64 F.3d at 1444 (reviewing award of attorney fees ). We have considered Licht’s arguments and conclude that he h as not demonstrated that the court abused its discretion in approving the claims administrator’s fees and
expenses. The motion to dismiss is DENIED. The judgment of the district court is AFFIRMED. Licht’s request for sanctions is DENIED. The mandate shall issue forthwith.

Entered for the Court

Paul J. Kelly, Jr. Circuit Judge