July 10, 2013
TIMOTHY GEISZLER, Plaintiff and Appellee,
KYEANN SAYER, Defendant and Appellant.
Appellee Timothy D. Geiszler, by counsel (Geiszler), has filed a combined motion to strike and motion for sanctions, premised upon the contents of the opening brief of defendant and appellant Kyeann Sayer (Sayer). Sayer, appearing as a self-represented litigant (Sayer), has filed an objection to Geiszler's motion, and a counter-motion for sanctions against him.
Geiszler asks this Court to strike the arguments set forth in Issues 2 through 7 of Sayer's opening brief, and further asks this Court to sanction her for filing a meritless appeal. Geiszler maintains that the arguments set forth under these issues are precisely the issues that this Court dismissed with prejudice in Sayer's previous appeal under Cause No. 12-0397.
In our Order of December 4, 2012, in Cause No. 12-0397, we dismissed Sayer's appeal with prejudice for her failure to file an amended notice of appeal as previously directed by Order of this Court. We further concluded that Geiszler was entitled to sanctions against Sayer in the form of attorney fees and costs incurred in that appeal, and we remanded to the District Court for determination of the appropriate amount of fees and costs to be assessed. Subsequently, on January 8, 2013, the District Court entered its order and amended judgment, setting forth the amount of attorney fees to be assessed against Sayer as a sanction. The District Court also concluded that Sayer remained in contempt of court by posting an offending blog, and directed her to remove it from the public domain. Sayer thereafter filed a notice of appeal from the District Court's amended judgment of January 8, 2013.
On May 29, 2013, in response to motions filed by Sayer in this action, we issued an Order rejecting her attempt to incorporate into the record in this matter transcripts from hearings conducted in 2011 and 2012, noting that the transcripts she sought to interject were associated with the dismissed appeal in Cause No. 12-0397. We said that the transcripts were irrelevant to the matter presently before this Court, and we cautioned Sayer to limit the issues she raises in her appeal to those directly arising from the January 8, 2013 order and amended judgment. A review of Sayer's opening brief on appeal confirms that she has chosen to wholly and willfully disregard our cautionary instruction, and that she is again attempting to resurrect issues from the dismissed appeal.
In her response to Geiszler's motion, Sayer asserts that this Court does not have the power to strike portions of her opening brief, noting that the appellate rules make no specific provision for striking portions of briefs on appeal. Sayer is incorrect. M. R. App. P. 19(5) permits this court to impose sanctions, including costs, attorney fees, "or such other monetary or non-monetary penalty as the supreme court deems proper under the circumstances." We deem it appropriate under the circumstances to impose the non-monetary penalty of striking Sayer's Issues 2 through 7, as the arguments set forth under those issues have been definitively foreclosed by virtue of the dismissal of Sayer's previous appeal, and Sayer has been repeatedly warned that she is precluded from resurrecting these arguments. Thus, we will consider only Sayer's arguments on appeal that stem directly from the District Court's order and amended judgment of January 8, 2013.
Geiszler also asks this court to award the amount of $5, 000 as a sanction. We will hold the motion for a monetary sanction in abeyance, pending final resolution of this appeal. Accordingly,
IT IS HEREBY ORDERED that Geiszler's motion to strike issues 2 through 7 as set forth in Sayer's opening brief on appeal is GRANTED.
IT IS FURTHER ORDERED that Geiszler's motion for monetary sanctions is HELD IN ABEYANCE.
IT IS FURTHER ORDERED that Geiszler's response brief shall be due 30 days from the date of this Order.
IT IS FURTHER ORDERED that Sayer's cross-motion for sanctions is DENIED.
The Clerk of this Court is directed to provide a copy of this Order to all counsel of record, and to Sayer at her last known address.