FILED

United States Court of Appeals

Tenth Circuit

January 18, 2012

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

JOHNNY O’MARA; JILL O’MARA,

Plaintiffs-Appellants,

v.

GOVERNMENT EMPLOYEES

INSURANCE COMPANY; GEICO

GENERAL INSURANCE COMPANY,

Defendants-Appellees.

No. 10-5158

(D.C. No. 4:09-CV-00229-GKF-FHM)

(N.D. Okla.)

ORDER AND JUDGMENT*

Before TYMKOVICH, Circuit Judge, BRORBY, Senior Circuit Judge, and

EBEL, Circuit Judge.

This civil diversity case involves an insurance dispute related to a

motorcycle accident. Following a jury trial, the district court entered a final

judgment in favor of one of the appellants, and this appeal followed. The only

issue remaining in this appeal, however, is whether the district court erred in

imposing an attorneys’ fees sanction against appellants’ counsel under

* After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore

ordered submitted without oral argument. This order and judgment is not binding

precedent, except under the doctrines of law of the case, res judicata, and

collateral estoppel. It may be cited, however, for its persuasive value consistent

with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. 
Fed. R. Civ. P. 30(g)(1) based on events that occurred during discovery.1

Although neither side has raised the issue of whether this court has jurisdiction to

consider the sanction issue, we have an independent duty to examine that question

and may raise the issue sua sponte. See Phelps v. Hamilton, 122 F.3d 1309,

1315-16 (10th Cir. 1997). We conclude that we lack jurisdiction to consider the

sanction issue. 

Appellants and their counsel filed a notice of appeal on November 23,

2010. See R., Doc. 305. At that time, the magistrate judge had entered only a

non-binding recommendation regarding the sanction issue pursuant to 28 U.S.C.

§ 636(b)(1)(B) and Fed. R. Civ. P. 72(b)(1). Id., Doc. 302. As a result, the

district court had not yet entered a final appealable order on the sanction issue

within the meaning of 28 U.S.C. § 1291. Indeed, at that point, there was no

district court decision or order at all. Hence, the provision in Fed. R. App. P.

4(a)(2) allowing a notice of appeal filed between the announcement of a district

court decision or order and the subsequent entry of judgment to be “treated as

filed on the date of and after the entry” is not applicable here. Instead, after the

district court made a de novo determination of the sanction issue and entered its

final orders on December 6 and 7, 2010, accepting the magistrate judge’s

1 Appellants initially raised two other issues in this appeal (No. 10-5158),

and appellees raised three issues in a cross-appeal (No. 10-5160). Pursuant to

stipulations of the parties, this court dismissed the cross-appeal and all issues

except the sanction issue have been withdrawn from this appeal.

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recommendation and imposing the attorneys’ fees sanction against appellants’

counsel, see R., Docs. 317, 321, appellants and/or their counsel were required to

file a separate notice of appeal to challenge the sanction award, but they failed to

do so.2

 See EEOC v. Wal-Mart Stores, Inc., 187 F.3d 1241, 1250 (10th Cir. 1999)

(“[A] supplemental notice of appeal is required for us to have jurisdiction over an

attorneys’ fee issue that becomes final subsequent to the initial notice of

appeal.”); RMA Ventures Cal. v. SunAmerica Life. Ins. Co., 576 F.3d 1070, 1073

(10th Cir. 2009) (“[A] decision on the merits and a decision on attorneys’ fees are

considered separate, final decisions of the district court, subject to appeal under

28 U.S.C. § 1291.”).

This appeal is DISMISSED for lack of jurisdiction.

Entered for the Court

David M. Ebel

Circuit Judge

2 We do not need to decide whether the separate notice of appeal should have

been filed on behalf of counsel or appellants, or both, to resolve the jurisdictional

issue raised by this appeal.

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