LEXON INSURANCE COMPANY, Plaintiff-Appellee, v. Aziz NASER, Defendant-Appellant.
No. 14-1844
United States Court of Appeals, Sixth Circuit.
Argued: March 5, 2015. Decided and Filed: March 19, 2015.
781 F.3d 335
has such knowledge, or reason to know, of the facts, but does not realize or appreciate the high degree of risk involved, although a reasonable man in his position would do so. An objective standard is applied to him, and he is held to the realization of the aggravated risk which a reasonable man in his place would have, although he does not himself have it.
Restatement (Second) of Torts § 500 (1965).
Because there is no requirement that the officers have actual knowledge of a risk of harm for a jury to find that they met the objective recklessness standard provided for in the Ohio statute, we affirm the district court’s holding with regard to state law immunity.
V. CONCLUSION
For the foregoing reasons, we AFFIRM the district court’s summary judgment decision in all respects.
Before: GIBBONS, SUTTON, and McKEAGUE, Circuit Judges.
OPINION
SUTTON, Circuit Judge.
Aziz Naser promised to indemnify Lexon Insurance Company for executing surety bonds on behalf of Michigan Orthopedic Services, LLC, a company he co-owned. Although Naser signed the agreement twice—once as an officer of Michigan Orthopedic Services and once as a co-owner—he maintains that he never became personally liable under it. The district court disagreed after a bench trial and entered judgment for Lexon. We affirm and along the way reject a jurisdictional claim that Naser filed an untimely notice of appeal.
I.
In 2009, Naser was the founder, co-owner, and chief executive of Michigan Orthopedic Services, a company that pro-
Lexon responded with a one-page indemnity agreement for Naser and MOS Holdings to complete. The agreement said: “I agree to indemnify Lexon Insurance Company ... in connection with any bond executed on behalf of the person or entity named as ‘applicant’ below.” There were three signature blocks. The first appeared under the named “applicant”: “Michigan Orthopedic Services, LLC.” The last two appeared under the following text: “In consideration of the execution by the Surety of the bond herein applied for, the undersigned owners, jointly and severally, join the foregoing indemnity agreement. MUST BE SIGNED BY A CORPORATE OFFICER.” One of these last signature blocks was for the “Authorized Corporate Officer” of “MOS Holdings.” The other was for “Aziz Naser.” R. 1-3 at 21.
Naser signed the first and third signature blocks—the first under the “applicant” section, the third under the “undersigned owners” section. A man named John C. Higgins signed the other “undersigned owners” signature block on behalf of MOS Holdings. Lexon issued the surety bonds in September 2009 and identified Michigan Orthopedic Services—the applicant—as the principal.
As fortune (and the onset of litigation) would have it, Michigan Orthopedic Services filed for bankruptcy on August 3, 2011.
Lexon turned to the “undersigned owners” for indemnification when the Centers for Naser about the agency’s claims, asking Naser to pay the $256,913.64 the agency requested. Lexon told Naser that he had a thirty-day window to pay the claims,
Lexon paid the agency’s claims. It then sued Naser in federal court for breaching the indemnity agreement. After a bench trial, the district court entered judgment for Lexon on April 16, 2014, finding Naser liable for breaching the agreement. On May 14, Naser filed a timely motion to amend the judgment. See
Naser complied with the court’s order, revising his motion on May 21. The court denied Naser’s motion on the merits on June 4, and Naser filed a notice of appeal on July 7.
II.
We face a threshold jurisdictional question: Did Naser file a timely notice of appeal from the district court’s April 16 judgment? Appellate Rule 4(a) requires parties to file a notice of appeal “within 30 days after the entry of judgment or order appealed from.” The 30-day clock resets if “a party timely files in the district court” a motion to alter or amend the judgment under Civil Rule 59(e).
As Lexon sees it, the notice of appeal was due on June 16, not July 7. The company calculates this date by treating the original due date for Naser’s notice of appeal as May 16—30 days after the April 16 judgment.
The day-counting premises of Lexon’s arguments are correct. But one legal premise of them is not. The district court did not “dispos[e] of” Naser’s timely May 14 motion in its May 15 order rejecting the motion as too long and giving Naser seven days to resubmit the (abridged) motion. A disposition is “a final settlement or determination.” Black’s Law Dictionary 572 (10th ed. 2014). To “dispose of” a motion, a court must act in a way that “indicates an intention that the act be final.” Campbell Indus., Inc. v. Offshore Logistics Int’l, Inc., 816 F.2d 1401, 1404 (9th Cir. 1987). The appeal time starts to run again in other words only after “the district court has finally acted on the tolling motion.” 16A Charles Alan Wright & Arthur R. Miller et al., Federal Practice & Procedure § 3950.4, at 391-92 & n. 134 (4th ed. 2008). There was nothing “final” about the district court’s May 15 order giving Naser seven days (and fewer words) to file an amended motion.
Campbell illustrates the point. The district court stated from the bench that it would grant a postjudgment motion to amend its findings and that the movant’s counsel should prepare a “complete and full document to reflect the changes.” 816 F.2d at 1402-03. Later day, the clerk of court entered a minute order in the docket stating that the motion had been granted. Id. The district court, however, did not file its amended findings until two months later, after which the appellant filed its notice of appeal. The notice of appeal was late if measured by the minute order. But Campbell held—reasonably, in our view—that it was “clear that the district court’s action,” the initial entry of the minute order, “was not intended to be final.” Id. at 1404. “Only when a judge acts in a manner which clearly indicates an intention that the act be final,” the court explained, “does the time for appeal begin to run.” Id. “Thus, the entry of the minute order did not finally dispose of the matter,” and the notice of appeal was timely. Id.
A similar conclusion applies here. Read most naturally, the May 15 order did not indicate that the court had finally disposed of Naser’s Rule 59 motion but instead indicated that the court would review the motion when Naser “revised” it to comply with the district court’s page-length rules. R. 67; see E.D. Mich. Local Rule 7.1(d)(3)(A) (setting a 25-page limit for briefs supporting a motion but authorizing
Some conditional orders, it is true, may become final if the conditions expire or if an appellant disclaims any intent to satisfy them. FirsTier Mortgage Co. v. Investors Mortgage Ins. Co., 498 U.S. 269, 275, 111 S.Ct. 648, 112 L.Ed.2d 743 (1991); see, e.g., Slayton v. Am. Express Co., 460 F.3d 215, 224 (2d Cir. 2006). But nothing of the sort happened here. Naser refiled his motion within the time provided and within the brief limits allowed, and the court later addressed the motion. The court thus did not dispose of the May 14 motion until its June 4 order deciding the issues on the merits.
This analysis also respects
Courts have even emphasized that papers “stricken by the district judge” for noncompliance with local rules “should remain filed” for purposes of Civil Rule 5(d)(4) and the Appellate Rules if the right to appeal would be lost otherwise. NationsBank, N.A. v. Plecas, 84 F.3d 1453, 1996 WL 244762, at *1 (D.C. Cir. 1996) (table);
What of the reality that the district court, after realizing that Naser had at-
In the final analysis, the district court did not resolve and dispose of the issues raised in Naser’s May 14 motion until June 4. That gave Naser until July 7 to file his notice of appeal—30 days “from the entry of the order disposing of” his motion plus the July 4 weekend. See
III.
Unhappily for Naser, the strength of his claim on our power to review his appeal exceeds the merits of his appeal. Naser challenges the district court’s conclusion that he signed the indemnity agreement on behalf of himself rather than as a corporate representative. The indemnity agreement, signed twice by Naser, imposes liability on multiple owners in their individual capacities, not in their capacities as corporate representatives of Michigan Orthopedic Services. Recall that the agreement said that Lexon would execute surety bonds on behalf of the “applicant,” Michigan Orthopedic Services, for which Naser signed as “CEO.” The agreement continued: “In consideration of the execution by the Surety of the bond herein applied for, the undersigned owners, jointly and severally, join the foregoing indemnity agreement. MUST BE SIGNED BY A CORPORATE OFFICER.” An “Authorized Corporate Officer” of “MOS Holdings” signed below this text, as did Naser a second time. Rather than include any corporate title, Naser signed this second signature block with his social security number.
“[A]s a general rule, an individual stockholder or officer is not liable for his corporation’s engagements unless he signs individually, and where individual responsibility is demanded the nearly universal practice is that the officer signs twice—
Naser claims that parol evidence supports his position. The first problem with this argument is that the district court, after a bench trial, did not find this evidence “credible.” R. 70 at 3. The second problem is that the argument does not work on its own terms. Naser points to affidavits saying that neither the officers of his company nor Lexon intended to hold an officer of Michigan Orthopedic Services liable under the agreement. R. 56-1 at 7-18; see, e.g., id. at 17. Yet these same affiants declare that Lexon meant to hold the owners of Michigan Orthopedic Services liable. See, e.g., id. at 13. And in its application for an indemnity agreement from Lexon, Michigan Orthopedic Services certified that “Michigan Orthopedic Services is owned by MOS Holdings ... 80%, Aziz Naser ... 15%.” R. 21-15 at 5.
Because everyone agreed that Lexon planned to hold the owners of Michigan Orthopedic Services liable, and because the company certified to Lexon that Aziz Naser was one of its two owners, it makes sense that the agreement asked Naser to “join the foregoing indemnity agreement” as one of two “undersigned owners.” The district court’s identical conclusion was therefore not clearly erroneous. The certification also renders irrelevant the ancillary question of whether Naser sold all of his interest in the company prior to 2009—as some but not all of the parol evidence suggests. See, e.g., R. 56-1 at 7. The only information Michigan Orthopedic Services gave Lexon regarding its ownership came from its certification listing Naser as a 15% owner. Even if this listing was a mistake (and the district court did not believe it was, see R. 60 at 9), it was a unilateral mistake regarding a fact unknown to Lexon, which in Michigan is “not sufficient to warrant reformation” of a contract. Casey v. Auto Owners Ins. Co., 273 Mich. App. 388, 729 N.W.2d 277, 285 (2006); see Stout v. J.D. Byrider, 228 F.3d 709, 715 (6th Cir. 2000).
Naser adds that, even if he is personally liable to Lexon, the company should not have paid the claims of the Centers for Medicare & Medicaid Services without additional evidence of the claims’ validity. It is true that Lexon, as a surety, was not required to pay the agency under its surety bonds unless the agency supplied “sufficient evidence to establish the surety’s liability under the bond of unpaid claims.”
For these reasons, we affirm.
SUTTON
CIRCUIT JUDGE
UNITED STATES of America, Plaintiff-Appellee, v. Raymond Earl BURCH, Jr., Defendant-Appellant.
No. 14-6232
United States Court of Appeals, Sixth Circuit.
March 20, 2015.
Rehearing Denied April 15, 2015.