Ambrosio Rouse v. II-VI Inc

658 F. App'x 21
CourtCourt of Appeals for the Third Circuit
DecidedJuly 26, 2016
Docket16-1143
StatusUnpublished
Cited by2 cases

This text of 658 F. App'x 21 (Ambrosio Rouse v. II-VI Inc) is published on Counsel Stack Legal Research, covering Court of Appeals for the Third Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ambrosio Rouse v. II-VI Inc, 658 F. App'x 21 (3d Cir. 2016).

Opinion

OPINION *

PER CURIAM

Ambrosio Rouse appeals pro se from orders of the United States District Court for the Western District of Pennsylvania, which, inter alia, denied his motion to reopen his civil action and his petition for a preliminary injunction. We will affirm the District Court’s judgment.

In January 2013, Rouse filed a complaint in the District Court, seeking to relitigate several employment discrimination cases that he had brought in Pennsylvania state court against his former employer, II-VI Incorporated. His federal complaint added civil conspiracy allegations against the attorneys and state court judges who were involved in those cases. On August 26, 2013, the District Court granted the defendants’ motions to dismiss and, in a separate order, denied three then-pending motions that had been filed by Rouse. After the District Court denied his motion for reconsideration, Rouse appealed. We summarily affirmed, concluding that Rouse’s claims were foreclosed by claim and issue preclusion, barred by judicial immunity, and untimely under the applicable statute of limitations. 1 In re Rouse, C.A. No. 13-4233 (order entered June 10,2014).

Shortly thereafter, Rouse filed in the District Court a motion to reopen the proceedings. The District Court denied that motion, citing the law of the case doctrine. Rouse filed “exceptions” to that order. By order entered August 28, 2014, the District Court denied Rouse’s exceptions. Rouse filed a notice of appeal. We again summarily affirmed, concluding that the District Court did not abuse its discretion in denying the motion to reopen as there was no change in controlling law, new evidence, or a need to correct a clear error of law. Rouse v. II-VI Inc., 609 Fed.Appx. 62, 64 *23 (3d Cir. 2015) (nonprecedential opinion), cert. denied, — U.S. -, 136 S.Ct. 588, 193 L.Ed.2d 469 (2015). We also denied Appellees’ motion for fees and costs pursuant to Federal Rule of Appellate Procedure 38. Rouse also filed a mandamus petition, which we denied. We concluded that Rouse’s allegations pertained solely to his displeasure with legal rulings and failed to set forth a reasonable basis for questioning Judge Schwab’s impartiality. In re Rouse, 582 Fed.Appx. 132 (3d Cir. 2014) (nonpre-cedential opinion).

On December 11, 2015, Rouse filed a motion to reopen, asking the District Court to consider his complaint and rule on all of his causes of actions. Rouse also filed a motion for preliminary injunction, alleging that the Pennsylvania Superior Court violated his rights under 42 U.S.C. § 1981 by denying his request for publication of an opinion of the court. The District Court denied both motions, holding that they were foreclosed by claim and issue preclusion, barred by judicial immunity, and were untimely under the statute of limitations.

Rouse filed a notice of appeal on January 19, 2016, seeking review of (1) the orders denying Rouse’s motions for a hearing, to extend the time limit for service, for a hearing on the propriety of judicially noticed facts, for recusal, and for reconsideration, as well as the order dismissing the complaint (“the 2013 orders”), (2) the orders denying Rouse’s motions for reconsideration and to reopen (the 2014 orders), and (3) the order denying Rouse’s motions to reopen and for a preliminary injunction entered on December 17, 2015. Appellees filed a filed a joint motion to summarily affirm, which Rouse opposes. Appellees have also filed a separate motion to award damages and costs under Federal Rule of Appellate Procedure 38, which Rouse opposes.

We have jurisdiction under 28 U.S.C. § 1291 of Rouse’s appeal of the District Court’s December 17, 2015, order. However, we lack jurisdiction over Rouse’s appeals of the 2013 orders and the 2014 orders as the notice of appeal was untimely filed as to them. Fed. R. App; P. 4(a)(1)(A) (“[i]n a civil case, ... the notice of appeal required by Rule 3 must be filed with the district clerk within 30 days after entry of the judgment or order appealed from.”). Moreover, no party filed any timely post-judgment motion as enumerated in Rule 4(a)(4)(A), and, thus, no exception to this rule applies.

Rouse’s December 2015 motions to reopen and for injunctive relief were predicated on claims previously addressed by this Court. As we have indicated previously, the law-of-the-case doctrine generally bars reconsideration of issues already resolved. See Atl. Coast Demolition & Recycling, Inc. v. Bd. of Chosen Freeholders of Atl. Cnty., 112 F.3d 652, 663 (3d Cir. 1997). The traditional exceptions to the law-of-the-case doctrine, an intervening change in the controlling law, new evidence that was not available, or a need to correct a clear error of law, do not apply here. Id. at 663; see Max’s Seafood Café v. Quinteros, 176 F.3d 669, 673 (3d Cir. 1999). Accordingly, there is nothing that calls into doubt our previous determination that the judicial defendants are immune from liability, Stump v. Sparkman, 435 U.S. 349, 356, 98 S.Ct. 1099, 55 L.Ed.2d 331 (1978); Azubuko v. Royal, 443 F.3d 302, 303 (3d Cir. 2006) (per curiam), that the claims are foreclosed by claim and issue preclusion, see Burlington N. R.R. Co. v. Hyundai Merchant Marine Co., Ltd., 63 F.3d 1227, 1231 (3d Cir. 1995), and that the claims are untimely under the applicable statute of limitations, Kach v. Hose, 589 F.3d 626, 634 (3d Cir. 2009).

*24 Turning to Appellees’ motion to award damages and costs, Rule 38 allows, but does not require, us to award damages and costs to appellees where an appeal is frivolous. Fed. R. App. P. 38. For purposes of Rule 38, an appeal is frivolous when, viewed objectively, it is wholly without merit, i.e, when there is no “colorable argument” in support of the appeal. Mellon Bank Corp. v. First Union Real Estate Equity & Mortg. Invs., 951 F.2d 1399, 1413 (3d Cir. 1991); Huck v. Dawson, 106 F.3d 45, 52 (3d Cir. 1997). Awards under Rule 38 are based on the merits of the appeal; we do not consider whether an appellant has acted “out of malice, ignorance, or deceit.” Beam v.

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658 F. App'x 21, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ambrosio-rouse-v-ii-vi-inc-ca3-2016.