MOTION TO ENTER ORDER VACATING SANCTIONS 

AGAINST V. BRYAN MEDLOCK, JR. AND SIDLEY AUSTIN LLP 

IN ACCORDANCE WITH AUGUST 9, 2010 OPINION AND ORDER PAGE 1 

IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF TEXAS 

FORT WORTH DIVISION 

HIGHMARK, INC., § 

 § 

Plaintiff, § 

vs. § 

 § CIVIL ACTION NO. 4: 03-CV-1384-Y 

ALLCARE HEALTH MANAGEMENT § 

SYSTEM, INC., § 

 § 

Defendant. § 

MOTION TO ENTER ORDER VACATING SANCTIONS 

AGAINST V. BRYAN MEDLOCK, JR. AND SIDLEY AUSTIN LLP 

IN ACCORDANCE WITH AUGUST 9, 2010 OPINION AND ORDER

V. Bryan Medlock, Jr. and Sidley Austin LLP (“Medlock”) respectfully request the Court 

to enter an order vacating sanctions against them, in accordance with the Court’s August 9, 2010 

Opinion and Order. Given the procedural posture of the case, and the current status of the 

April 30 notice of appeal, this Court has jurisdiction to vacate its prior sanctions order, and 

movants request that the Court do so. 

Procedural History and Requested Relief 

On March 31, 2010, the Court issued its Opinion and Order Granting Motion for 

Exceptional Case Finding and Attorneys’ Fees (“Sanctions Order”) (Dkt 564), which imposed 

sanctions against various counsel, including Medlock. On April 1, the Court corrected a clerical 

error in the Sanctions Order. (Dkt 566) On April 28, Medlock timely moved to alter or amend 

the Sanctions Order pursuant to Federal Rule of Civil Procedure 59(e) (“Rule 59(e) Motion”), 

seeking to vacate the sanctions imposed against Medlock. (Dkt 590) Other sanctioned counsel 

also filed motions to reconsider the Sanctions Order. 

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MOTION TO ENTER ORDER VACATING SANCTIONS 

AGAINST V. BRYAN MEDLOCK, JR. AND SIDLEY AUSTIN LLP 

IN ACCORDANCE WITH AUGUST 9, 2010 OPINION AND ORDER PAGE 2 

 On April 30, as a precautionary measure, Medlock filed a Notice of Appeal to the Federal 

Circuit appealing the Sanctions Order. (Dkt 604) It does not appear from the District Court’s 

docket sheet that the Notice of Appeal was transmitted to the Federal Circuit. In any event, the 

appeal was never docketed in the Federal Circuit.1

 On May 4, pursuant to the Federal Circuit 

Practice Notes, Medlock notified the Federal Circuit by letter that the Rule 59(e) motions were 

pending in this Court. On the same date, Medlock gave notice in this Court of the 

correspondence with the Court of Appeals. (Dkt 611) 

 On May 6, 2010, this Court granted the Rule 59(e) Motion in part and ordered Medlock 

and other sanctioned counsel to show cause why they should not be sanctioned. (Dkt 612) On 

May 26, Medlock filed its Response to the May 6 show-cause order. (see Dkt 618) On 

August 9, the Court issued its Opinion and Order Reconsidering and Vacating Sanctions. (Dkt 

633) The Court vacated sanctions against Steven Hill and his firm, Joseph Cleveland and his 

firm, and McKool Smith LLP and associated attorneys. The Court also stated its intent to vacate 

the sanctions imposed against Medlock, but questioned its jurisdiction to do so. The August 9 

Opinion and Order says: 

The Court notes that Medlock has already filed a notice of appeal, 

and that he filed his motion for reconsideration after that notice. 

“Generally, a notice of appeal divests the district court of 

jurisdiction over the judgment or order that is the subject of the 

appeal.” Sierra Club, Lone Star Chapter v. Cedar Point Oil Co., 

73 F.3d 546, 578 (5th Cir. 1996). But a district court may seek 

leave from the court of appeals to entertain a motion to reconsider, 

Shepherd v. International Paper Co., 372 F.3d 326, 329 (5th Cir. 

2004), and this Court hereby seeks such leave of the Federal 

Circuit. Once leave is sought, the appellant may file a motion to 

remand so that the district court may grant reconsideration. See id. 

 

1

 An August 10, 2010, electronic search of the Federal Circuit’s docket through the PACER system 

confirmed that the appeal had not been docketed. Medlock’s counsel also called the Federal Circuit Clerk’s Office 

on August 10, 2010, to confirm that no appeal had been docketed. Because the appeal has not been docketed, there 

is no appellate case for Medlock to address by a motion to remand or otherwise. 

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MOTION TO ENTER ORDER VACATING SANCTIONS 

AGAINST V. BRYAN MEDLOCK, JR. AND SIDLEY AUSTIN LLP 

IN ACCORDANCE WITH AUGUST 9, 2010 OPINION AND ORDER PAGE 3 

In the event Medlock does so, and his case is remanded to this 

Court, the sanctions imposed on Medlock will be vacated. 

August 9 Opinion and Order at 50. 

 As detailed below, this Court in fact has jurisdiction now to vacate the sanctions against 

Medlock. The Federal Rules of Appellate Procedure and applicable case law make clear that a 

timely filed motion under Rule 59 automatically suspends the effect of a notice of appeal until 

the district court disposes of the motion. The district court has jurisdiction to grant the motion 

without resorting to the indicative ruling procedure referenced in the August 9 Opinion and 

Order. Moreover, Medlock has filed notice of the withdrawal of its April 30 notice of appeal and 

moved to voluntarily dismiss the appeal under Fed. R. App. P. 42(a). Medlock respectfully 

requests that the Court vacate the sanctions imposed on Medlock without further proceedings. 

Argument 

Federal Rule of Appellate Procedure 4(a)(4)(B)(i) provides that if a party files a notice of 

appeal before the district court disposes of a motion to alter or amend the judgment under Fed. R. 

Civ. P. 59(e) (or any other motion listed in Rule 4(a)(4)(A)), the notice “becomes effective . . . 

when the order disposing of the last such remaining motion is entered.” Fed. R. App. P. 

4(a)(B)(i). Thus, a timely-filed motion pursuant to Rule 59(e) “will suspend the effect of a 

notice of appeal” until the district court rules on the motion. 12 James W. Moore, Moore’s 

Federal Practice § 62.1.10[2] (3d ed. 2004). “The district court has authority to grant [the 

motion] . . ., even if a notice of appeal has been filed or the appeal has been docketed, without 

resorting to the indicative ruling procedure.” 12 James W. Moore, Moore’s Federal Practice 

§ 62.1.10[2] (3d ed. 2004). 

 A timely-filed motion listed in Fed. R. App. P. 4(a)(4)(A), such as a motion to alter or 

amend under Rule 59(e), suspends a notice of appeal until the district court disposes of the 

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MOTION TO ENTER ORDER VACATING SANCTIONS 

AGAINST V. BRYAN MEDLOCK, JR. AND SIDLEY AUSTIN LLP 

IN ACCORDANCE WITH AUGUST 9, 2010 OPINION AND ORDER PAGE 4 

relevant motion. Fed. R. of App. P. 4(a)(4)(B)(i).2 Both the Federal Circuit and the Fifth Circuit 

have addressed this issue. For instance, in Ross v. Marshall, the Fifth Circuit ruled that a timely 

filed motion listed in Rule 4(a)(4)(A) “suspends or renders dormant a notice of appeal until all 

such motions are disposed of by the trial court.” 426 F.3d 745, 751-52 (5th Cir. 2005). “This 

holds true regardless of whether the motion was filed before or after the notice of appeal.” Id. at 

751-52 In Ross, a judgment was entered August 20; the judgment debtor filed a notice of appeal 

September 3; a motion to intervene was filed September 3; and the judgment debtor filed a Rule 

59 motion on September 4, which the court denied September 15. The Fifth Circuit held that the 

timely filed Rule 59(e) motion suspended the effect of the notice of appeal such that the district 

court had jurisdiction on September 12 to decide the motion to intervene, before disposing of the 

Rule 59 motion three days later. Id. at 752.3

 

 The cases cited in this Court’s August 9 Opinion and Order are not to the contrary. 

Sierra Club, Lone Star Chapter v. Cedar Point Oil Co., 73 F.3d 546, 578 (5th Cir. 1996), did not 

involve a Rule 59(e) motion or other post-judgment motion listed in Fed. R. App. P. 4. Instead, 

the Fifth Circuit found that Rule 62(c) provided an exception to the general rule that a notice of 

 

2

 Here, Medlock’s Rule 59 Motion remains pending, as the Court resolved the motion only in part on May 6 

and did not grant or deny the requested relief in its August 9 Opinion and Order. 

3

 The Federal Circuit applied the same rule in two unpublished and non-precedential opinions. In Board of 

Trustees of Bay Medical Center v. Humana Military Healthcare Services, Inc., the Federal Circuit recognized that 

where a party timely files a motion to alter or amend under Rule 59(e), a notice of appeal “does not become 

effective until the order disposing of the motion for reconsideration is entered.” 123 Fed. Appx. 995, *2 (Fed. Cir. 

2005). In that case, a district court order issued on March 16; a party moved for reconsideration on March 30, and 

the same party filed a notice of appeal on April 15. On April 19, the district court denied the motion for 

reconsideration as moot on the ground that the notice of appeal had divested the district court of jurisdiction. The 

Federal Circuit concluded that the district court erred when it “mistakenly found the notice of appeal divested the 

court of jurisdiction.” Id. at *3. “Under Fed. R. App. P. 4(a)(4)(B)(i), the notice of appeal was not effective until 

the district court had disposed of the motion for reconsideration on the merits. . . . [The district court] retained 

jurisdiction until the merits of the motion were passed upon.” Id. See also Typeright Keyboard Corp. v. Microsoft 

Corp., 251 F.3d 169, 2000 WL 1897297, *1 (Fed. Cir. 2000) (“Typeright’s notice of appeal, filed after judgment 

was entered but before the district court ruled on the Rule 60(b) motion, did not become effective until the order 

disposing of the Rule 60(b) motion was entered.”). 

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MOTION TO ENTER ORDER VACATING SANCTIONS 

AGAINST V. BRYAN MEDLOCK, JR. AND SIDLEY AUSTIN LLP 

IN ACCORDANCE WITH AUGUST 9, 2010 OPINION AND ORDER PAGE 5 

appeal divests the district court of jurisdiction and allowed the district court to modify an 

injunction after the filing of a notice of appeal. 

 In Shepherd v. Int’l Paper Co., 372 F.3d 326, 329 (5th Cir. 2004), the Fifth Circuit 

recognized that pursuant to Fed. R. App. P. 4(a)(4)(A), a district court retains jurisdiction to 

grant a timely filed motion under Rule 60(b), even though a notice of appeal has been filed. Id. 

at 329 n.2. In that case, however, the plaintiffs conceded that Fed. R. App. P. 4 was inapplicable, 

because the Rule 60(b) motion was not timely filed. By filing out of time, “plaintiffs did not 

delay the effective date of their notice of appeal and did not extend the district court’s 

jurisdiction.” Id. 

 Here, Medlock timely filed a motion pursuant to Fed. R. Civ. P. 59(e). That rule requires 

filing within 28 days after entry of judgment. Medlock’s Rule 59(e) motion, filed April 28, 

2010, was filed within 28 days of the Sanctions Order, which issued March 31, 2010. Under the 

Rules and applicable case law, the effect of the Rule 59(e) motion was to delay the effective date 

of the notice of appeal until after the motion is fully disposed of. In fact, the appeal was never 

even docketed in the Court of Appeals. Accordingly, without any further proceedings, this Court 

has jurisdiction to fully grant the relief requested by Medlock’s Rule 59(e) motion and vacate the 

sanctions imposed against Medlock. 

 Moreover, Medlock has today filed in this Court a notice of withdrawal of the Notice of 

Appeal that Medlock filed April 30, 2010, and a motion for voluntary dismissal of its appeal. 

“Before an appeal has been docketed by the circuit clerk, the district court may dismiss the 

appeal . . . on the appellant’s motion with notice to all parties.” Fed. R. App. P. 42(a). Further, 

Medlock is simultaneously notifying the Federal Circuit that the Notice of Appeal has been 

withdrawn in light of the Court’s August 9 Opinion and Order. 

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MOTION TO ENTER ORDER VACATING SANCTIONS 

AGAINST V. BRYAN MEDLOCK, JR. AND SIDLEY AUSTIN LLP 

IN ACCORDANCE WITH AUGUST 9, 2010 OPINION AND ORDER PAGE 6 

Prayer 

This Court has jurisdiction to enter the order vacating sanctions, notwithstanding the 

April 30 notice of appeal. And Medlock has now withdrawn the notice of appeal and moved to 

dismiss the appeal. For the reasons stated above, Mr. Medlock and Sidley Austin respectfully 

request that the Court vacate the sanctions against them and order the Court Clerk to refund the 

sanctions previously paid by them. 

Dated: August 11, 2010 Respectfully submitted, 

 /s/ Timothy S. Durst 

Rod Phelan 

Texas State Bar No. 15899800 

rod.phelan@bakerbotts.com 

Timothy S. Durst 

Texas Bar No. 00786924 

tim.durst@bakerbotts.com 

Jessica B. Pulliam 

Texas State Bar No. 24037309 

jessica.pulliam@bakerbotts.com 

2001 Ross Avenue 

Dallas, TX 75201 

(214) 953-6500 

(214) 953-6503 (Facsimile) 

ATTORNEYS FOR 

V. BRYAN MEDLOCK, JR. 

AND SIDLEY AUSTIN LLP 

Case 4:03-cv-01384-Y Document 634 Filed 08/11/10 Page 6 of 7 PageID 18370
MOTION TO ENTER ORDER VACATING SANCTIONS 

AGAINST V. BRYAN MEDLOCK, JR. AND SIDLEY AUSTIN LLP 

IN ACCORDANCE WITH AUGUST 9, 2010 OPINION AND ORDER PAGE 7 

NOTE REGARDING CERTIFICATE OF CONFERENCE

 No certificate of conference on this Motion is required or possible in light of the 

procedural posture of this case and the issues addressed by this Motion. 

CERTIFICATE OF SERVICE

 This is to certify that a copy of the above and foregoing was furnished to all counsel of 

record via the Court’s Electronic Filing System, if they have consented to electronic service, or 

by e-mail, if they have not so consented. 

 /s/ Timothy S. Durst 

 Timothy S. Durst 

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