The full case caption appears at the
end of this opinion. TERRY, Associate Judge: These consolidated appeals are the latestchapter in a decade of litigation in the courts of Pennsylvania, Illinois, and theDistrict of Columbia. This case was one of four proposed nationwide classactions, all involving allegedly faulty transmissions in certain Ford automobiles,filed by attorney Beverly C. Moore, Jr., and others. The complaint in thepresent case was filed in the Superior Court in February 1991. A few monthslater, the trial court granted Ford Motor Company’s motion to dismiss astime-barred, with prejudice, all individual and class claims. The plaintiffs notedan appeal from that ruling, and in 1993 this court remanded the case to the trialcourt with directions to determine whether it should have ruled on the plaintiffs’motion for voluntary dismissal without prejudice before granting Ford’s motionto dismiss with prejudice. Thoubboron v. Ford Motor Co., 624 A.2d 1210(D.C. 1993) (“Thoubboron I”). After extensive further proceedings, the court ultimately granted theplaintiffs’ request for voluntary dismissal without prejudice and awarded costsand attorneys’ fees to Ford in the amount of $62,669.16. The fee award wasentered jointly and severally against Mr. Moore, his law firm, and the numerous(approximately thirty-three) named plaintiffs. After a motion to alter or amendthe judgment under Super. Ct. Civ. R. 59 (e) was denied, the plaintiffs filed anotice of appeal (No. 98-CV-1437). The second appeal (No. 99-CV-618) is taken from the denial of a motion to amend the notice of appeal in No. 98-CV-1437. I In Thoubboron I we directed the trial court on remand to consider denovo the plaintiffs’ motion for voluntary dismissal without prejudice. We alsosaid: In the event that the judge determineson remand that the dismissal of thecomplaint should be without prejudice, hemay of course impose reasonableconditions, e.g., that the plaintiffs . . . shallcompensate the defendant for its costs andcounsel fees incurred in defending againstwhat has turned out to be the plaintiffs’improvident foray into the courts of thisjurisdiction. 624 A.2d at 1216 n.12 (citations omitted). Accordingly, when the court decidedto grant the plaintiffs’ motion, it did so on the express condition that plaintiffsreimburse Ford for its costs and attorneys’ fees attributable to major portions ofthis litigation. About two weeks later, Ford submitted to the court an itemizedrequest for $88,228.06 in costs and attorneys’ fees, supported by affidavits andother documentation.
[FOOTNOTE 1] Ford also specifically contended that “these amounts should be awarded jointly against plaintiffs and their counsel.”
[FOOTNOTE 2] After plaintiffsfiled an opposition, the court in due course issued an order on July 26, 1998,granting Ford’s request in part, denying it in part, and awarding $62,669.16 incosts and attorneys’ fees. The order stated in pertinent part: “Plaintiffs and theirattorneys, Beverly Moore, Jr., Esq., and [his law firm] Moore & Brown, jointlyand severally, shall pay to Defendant [the stated amount], less any credit forsums already paid . . . .” We discern nothing in the July 26 order that warrants reversal, in wholeor in part; on the contrary, we are in substantial agreement with it. The courtcarefully explained its reasons for granting Ford’s motion in part and denying it inpart, examining each specific request in detail. We review such orders only forabuse of discretion, Bagley v. Foundation for the Preservation of Historic Georgetown, 647 A.2d 1110, 1115 (D.C. 1994), and on this record we find none. Given the protracted history of this litigation, the award strikes us as altogether reasonable, especially considering that the court reduced the total amount that Ford sought by almost 30 percent.
[FOOTNOTE 3] We also reject the plaintiffs’ assertion that this appeal should be dismissedas moot in light of the intervening decision of the Supreme Court of Illinois inone of the related cases, Portwood v. Ford Motor Co., 183 Ill. 2d 459, 701N.E.2d 1102, 233 Ill. Dec. 828 (1998). In Portwood the court ruled that certainof the plaintiffs’ claims were time-barred in Illinois. While it is possible that thepresent litigation may become moot at some time in the future as a result (at leastin part) of the Illinois ruling, it is not moot yet. We conclude that any suggestionof mootness is at best premature. II The notice of appeal from the order awarding costs and attorneys’ feeswas captioned in the names of thirty-three plaintiffs.
[FOOTNOTE 4] The text of the notice stated that “[e]ach and every named plaintiff hereby appeals” from thechallenged orders. When Ford filed its brief in the first of the two instantappeals, it argued that this court “should summarily uphold the order as it appliesto Mr. Moore and his law firm” because neither Mr. Moore nor the law firm wasnamed or otherwise identified as an appellant in the notice of appeal. In supportof this argument, Ford cited this court’s decision in Walker v. District ofColumbia, 656 A.2d 722 (D.C. 1995), in which we refused to consider anappellant’s challenge to the imposition of Rule 11 sanctions against her attorney”because the attorney did not list herself as an appellant in her client’s notice ofappeal, nor did she file a separate notice of appeal in her own name.” Id. at 725.In so ruling, we relied on the Supreme Court decision in Torres v. OaklandScavenger Co., 487 U.S. 312 (1988),
[FOOTNOTE 5] and on several opinions from various federal circuits (seven out of the nine that had addressed the issue) which hadfollowed Torres in rejecting similar claims. See also Walsh v. Ford Motor Co.,292 U.S. App. D.C. 32, 36, 945 F.2d 1188, 1192 (1991) (dismissing an appealbecause “no party was adequately ‘specified’ by the notice of appeal,” citingTorres).
[FOOTNOTE 6] Thus alerted by Ford, Mr. Moore filed in the trial court a motion toamend the first notice of appeal by adding himself and his law firm as namedappellants. He asserted that he had “excusably neglected to include himself as anappellant” because the court had made an “obvious oversight error in includinghim as jointly and severally liable,” and because “neither the named plaintiffs noranyone else [is] liable for any fees anyway,” in light of the Illinois decision in thePortwood case. Ford opposed the motion on several grounds, and the courtthereafter denied it. From that ruling “Mr. Moore and his firm” noted a secondappeal, No. 99-CV-618, which we consolidated with the first one. This court’s Rule 3 (a) states in part: “The notice of appeal shall specifythe party or parties taking the appeal . . . .”
[FOOTNOTE 7] Mr. Moore contends that his motion to amend the notice of appeal should have been granted because he madea sufficient showing of “excusable neglect.” We reject this contention for tworeasons. First, the term “excusable neglect” appears not in Rule 3 (a) but in Rule4 (a)(4), which authorizes the trial court to extend (for no more than thirty days)the time for filing a notice of appeal in a civil case. Since there is no comparablelanguage in Rule 3 (a), we conclude that excusable neglect cannot justifyamending a notice of appeal in the manner sought by Mr. Moore. Second, even assuming that a showing of excusable neglect might warrantsome relief in an appropriate case, and putting aside any issue as to the timelinessof the motion to amend, we cannot grant such relief here.
[FOOTNOTE 8] Mr. Moore has surely demonstrated neglect, but we cannot regard it as excusable. The Walkercase, which is materially indistinguishable from this case, was decided in 1995, three years before the first notice of appeal was filed. Torres, on which Walkerwas substantially based, was decided by the Supreme Court in 1988. Mostsignificantly, the Walsh case, involving a similar issue and some of the sameparties (and the same counsel), was decided in 1991, almost seven years beforethe notice of appeal at issue here was filed. With Torres, Walker, and especiallyWalsh on the books, the trial court could, and did, properly conclude that “thefailure to include the name of a party to the appeal hardly fits [the definition] ofexcusable neglect.”
[FOOTNOTE 9] III For the foregoing reasons, the orders from which these appeals are takenare both Affirmed. :::FOOTNOTES:::
FN1 In an accompanying memorandum, Ford stated that the amountrequested was “less than the costs and fees actually billed to and paid by Ford inconnection with Ford’s motion to dismiss and Ford’s response to plaintiffs’ Rule41 motion and First Motion to Intervene.”
FN2Appellants’ assertion on appeal that the court acted sua sponte inimposing joint and several liability is thus refuted by the record.
FN3We therefore have no occasion to address Ford’s alternative claim ofestoppel.
FN4There appears to have been one additional plaintiff below, RobertMcIntyre, but his name did not appear on the notice of appeal.
FN5The court held in Torres that a federal appellate court lacked jurisdictionover claims presented by “a losing party not named in the notice of appeal.” 487U.S. at 318.
FN6The Walsh case was one of the four proposed class actions to which wereferred in the first paragraph of this opinion.
FN7The corresponding federal rule, FED. R. APP. P. 3 (c), on which Torreswas based, contains essentially identical language.
FN8We note that Mr. Moore filed his “excusable neglect” motion almost sixmonths after the notice of appeal was filed.
FN9The court also ruled that the failure to name Mr. Moore and his law firmas appellants did not warrant relief under Super. Ct. Civ. R. 60 (b). We find noerror in that ruling. See McMillan v. Choice Healthcare Plan, Inc., 618 A.2d664, 667 (D.C. 1992).
Thoubboron v. Ford Motor Co. District of Columbia Court of Appeals Eileen Thoubboron, et al., Appellants v. Ford Motor Company, Appellee Nos. 98-CV-1437 and 99-CV-618 Appeals from the Superior Court of the District of Columbia (Hon. Richard A. Levie, Trial Judge) Argued: March 1, 2000 Decided: April 20, 2000 Before: TERRY, REID, and WASHINGTON, Associate Judges. Counsel: Beverly C. Moore, Jr., with whom John W. Pillette was on the brief, forappellants. Carl R. Schenker, Jr., with whom William T. Coleman, Jr., Richard C.Warmer, and Patrick R. Rizzi were on the brief, for appellee.
