UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

OUTLAWS CLUB, located at 5420

Howard Street, Charlotte, NC, More

particularly Described in a Deed

Recorded at Book 4407, Page 460,

No. 95-1241

Mecklenburg County Registry,

Defendant-Appellant,

and

MICHAEL WELDON BAZEMORE;

CHARLOTTE-MECKLENBURG COUNTY

TAX COLLECTOR,

Claimants.

Appeal from the United States District Court

for the Western District of North Carolina, at Charlotte.

Robert D. Potter, Senior District Judge.

(CA-91-408-3-P)

Argued: July 10, 1996

Decided: August 19, 1996

Before RUSSELL, WIDENER, and HALL, Circuit Judges.

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Dismissed by unpublished per curiam opinion. Judge Widener wrote

a dissenting opinion.

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COUNSEL

ARGUED: Harold Johnson Bender, LAW OFFICE OF HAROLD J.

BENDER, Charlotte, North Carolina, for Appellant. B. Frederic Williams, Jr., Assistant United States Attorney, Charlotte, North Carolina, for Appellee. ON BRIEF: Mark T. Calloway, United States

Attorney, Charlotte, North Carolina, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

On November 22, 1991, the government filed a civil forfeiture

action in the district court against the clubhouse occupied by the

Charlotte, North Carolina, chapter of the Outlaws motorcycle club,

and the lot upon which it is situated. On March 9, 1992, Michael W.

Bazemore, then a member of the Outlaws, asserting that he was

"attorney-in-fact for the record owners of the property," filed a claim

contesting the forfeiture. Neither the club itself 1 nor any other members filed claims.

Following a lengthy period of discovery, culminating in a bench

trial, the district court entered a final judgment of forfeiture on behalf

of the government on January 23, 1995. Eight days later, a notice of

appeal was filed in the district court that stated:

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1 Under North Carolina law, unincorporated associations have the

capacity to sue and be sued. N.C. Gen. Stat. § 1-69.1 (1983). It therefore

appears that the Outlaws could have filed its own claim in the forfeiture

proceeding, and that such a claim need not have named individual members of the club. Indeed, we note that the government's complaint for forfeiture named "The Outlaws" as a "person" who "may have or claim an

interest in the defendant property."

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NOW COMES the Defendant, by and through its attorney,

and gives Notice of Appeal to the Fourth Circuit Court of

Appeals from the Memorandum of Decision and Order and

Judgment entered by The Honorable Robert D. Potter on

January 23, 1995.

(emphasis supplied). The notice of appeal was captioned United

States v. Outlaws Club, located at [etc.], the same as all other filings

and orders in the proceedings below. No other notices of appeal from

the final judgment were filed.

Under the federal rules, a notice of appeal

must specify the party or parties taking the appeal by naming each appellant in either the caption or the body of the

notice of appeal. . . . An appeal will not be dismissed for

informality of form or title of the notice of appeal, or for

failure to name a party whose intent to appeal is otherwise

clear from the notice.

Fed. R. App. P. 3(c). The notice of appeal filed in this case specifies

that it is being taken on behalf of "the Defendant," which, in this in

rem proceeding, is merely the real property that is the subject of the

action. However, inasmuch as pieces or parcels of real property are

not themselves "owners" within the meaning of the federal forfeiture

statutes, they have no legal standing to contest their own forfeiture.

United States v. One Parcel of Real Property, 831 F.2d 566, 568 (5th

Cir. 1987).

The notice of appeal nowhere specifies that it is being taken on

behalf of Bazemore, and his intent to appeal is not otherwise clear

therefrom.2 Although one might conclude from all the circumstances

that Bazemore intended to appeal (insofar as he was the only party

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2 The notice of appeal not only fails to name Bazemore anywhere in its

caption or body, but it also affirmatively states that the entity taking the

appeal is doing so "by and through its attorney," instead of "by and

through his attorney." Thus, quite apart from the notice's failure to offer

any positive evidence of Bazemore's intent to appeal, a plain reading of

the document would appear to support the opposite conclusion.

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with legal standing to appeal and that a notice of appeal was in fact

filed), Rule 3(c) specifically states that a party's intent to appeal must

be discernible "from the notice," rather than from the filing of the

notice.

The failure of a party to comply with the specificity requirement

of Rule 3(c) divests the court of appeals of jurisdiction to hear the

appeal so noted. Torres v. Oakland Scavenger Co. , 487 U.S. 312, 315

(1988); Mallas v. United States, 993 F.2d 1111, 1116 (4th Cir. 1993).

In Torres, Justice Marshall, writing for the seven-Justice majority,

stated: "The failure to name a party in a notice of appeal is more than

excusable `informality'; it constitutes a failure of that party to

appeal." Id. at 314.3 Hence, though Bazemore was the only party entitled to appeal the judgment below, it is evident that he has not.

Because it appears to this court that it lacks jurisdiction to consider

the appeal filed in this case, that appeal is hereby

DISMISSED.

WIDENER, Circuit Judge, dissenting:

I respectfully dissent.

The lack of jurisdiction upon which this case is decided is based

upon the mere fact of an oversight in filing with the court papers a

power of attorney executed by the three grantees in the deed to the

property, the record owners thereof, who had executed a power of

attorney to Bazemore, a claimant in this case, to prosecute the claim

on their behalf.

This power of attorney was seen by the government, which yet

acknowledges that it exists, and merely was not filed through the

oversight of Bazemore's attorney. A trial on the merits was held in

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3 Although the applicability of Torres to appeals from judgments

against multiple parties has been somewhat curtailed by subsequent

amendments to Rule 3(c), its general declarations respecting the effect of

a party's clear failure to comply with the Rule surely remain viable.

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which no issue was made of any lack of authority on the part of

Bazemore to proceed with the case.

Even at oral argument on appeal the following question and answer

took place:

The Court: The grantees in the deed apparently had given

him [Bazemore] the power of attorney?

Assistant United States Attorney: The United States had

no intention of making an issue of that at trial.

In my opinion, the dismissal of the case by the district court and

the dismissal of this appeal carry too far a rigid construction of both

rules of pleading as well as the Rules of Appellate Procedure.

I would vacate the judgment of the district court and remand the

case for a decision on the merits. The matter has already been tried.

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