98-2327 -- Martinez v. Roscoe -- 08/25/1999

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

SYLVIA MARTINEZ; MICHELLE ARCHULETA; CHRISTINA ARCHULETA; YVONNE LOVATO; ROBERTA AMAYA, individually and on behalf of all others similarly situated,

Plaintiffs-Appellees,

BENJAMIN J. ROSCOE, Owner of Valle Del Norte Apartments,

Defendant-Appellant,

and

GERALDINE M. ROSCOE, Owner of Valle Del Norte Apartments,

Defendant.

No. 98-2327

(D.C. No. CIV-93-1156-LH)

(D. N.M.)

ORDER AND JUDGMENT^(*)

Before TACHA, McKAY, and MURPHY, Circuit Judges.

After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.

Plaintiffs, tenants of a federally subsidized apartment complex owned by defendants, sued to enforce rights secured by the subsidy program. The district court granted permanent injunctive relief. The district court later granted a second permanent injunction and awarded plaintiffs attorney's fees as a sanction for defendants' violation of the first injunction. We affirmed the relief granted by the district court on appeal. See Martinez v. Roscoe, 100 F.3d 121 (10th Cir. 1996). Defendants then moved the district court for relief from that court's prior orders and for sanctions, and moved to quash the entry of appearance of substitute counsel for plaintiffs as a violation of the court's local rules. The district court denied the motions. Defendant Benjamin J. Roscoe appeals pro se. Plaintiffs move for attorney's fees and costs under Fed. R. App. P. 38 on the basis that the appeal is frivolous. We have jurisdiction under 28 U.S.C. § 1291.

We review the district court's denial of defendants' motion for relief from prior orders under Fed. R. Civ. P. 60(b) for abuse of discretion. See DeVargas v. Montoya, 796 F.2d 1245, 1248 (10th Cir. 1986), overruled on other grounds by Newcomb v. Ingle, 827 F.2d 675 (10th Cir. 1987). We review the district court's denial of sanctions against plaintiffs' counsel for abuse of discretion. See Portales Nat'l Bank v. Smith (In re Byrd, Inc.), 927 F.2d 1135, 1137 (10th Cir. 1991). We review the district court's interpretation and application of its local rules for abuse of discretion. See Hernandez v. George, 793 F.2d 264, 266 (10th Cir. 1986).

We have reviewed the briefs and the record and find that this appeal is frivolous. The judgment of the United States District Court for the District of New Mexico is AFFIRMED for substantially the same reasons set forth in the district court's memorandum opinion and order entered on November 10, 1998. Plaintiffs' motion for attorney's fees and costs is granted. The case is REMANDED for a determination of the fee award. The mandate shall issue forthwith.

Entered for the Court

Michael R. Murphy

Circuit Judge

FOOTNOTES
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^*. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.

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