Lexon Insurance Co. v. Aziz Naser

Filing

OPINION and JUDGMENT filed : The judgment of the district court is AFFIRMED. Decision for publication. Julia Smith Gibbons, Jeffrey S. Sutton (AUTHORING), and David W. McKeague, Circuit Judges.

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RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 15a0049p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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LEXON INSURANCE COMPANY,
Plaintiff-Appellee,
v.

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No. 14-1844

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AZIZ NASER,
Defendant-Appellant.

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Appeal from the United States District Court
for the Eastern District of Michigan at Flint.
No. 4:12-cv-13218—Gershwin A. Drain, District Judge.
Argued: March 5, 2015
Decided and Filed: March 19, 2015
Before: GIBBONS, SUTTON, and McKEAGUE, Circuit Judges.
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COUNSEL
ARGUED: Kevin B. Hirsch, JAFFE, RAITT, HEUER & WEISS, PC, Southfield, Michigan, for
Appellant. Mark A. Rysberg, HILGER HAMMOND, Grand Rapids, Michigan, for Appellee.
ON BRIEF: Kevin B. Hirsch, Brian G. Shannon, JAFFE, RAITT, HEUER & WEISS, PC,
Southfield, Michigan, for Appellant. Mark A. Rysberg, HILGER HAMMOND, Grand Rapids,
Michigan, for Appellee.
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OPINION
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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 coowned. Although Naser signed the agreement twice—once as an officer of Michigan Orthopedic

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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 provides prosthetic and orthopedic services to Medicare recipients and
other patients. The other co-owner was MOS Holdings, Inc., a private equity firm that held
80 percent of the company. In January 2009, new Medicare regulations required the company to
obtain surety bonds for each of its billing locations. See 42 C.F.R. § 424.57(d). The co-owners
submitted an application for surety bonds to Lexon Insurance Company.
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
Medicare & Medicaid Services began issuing claims against its bonds. Lexon sent a letter to

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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, 42 C.F.R. § 424.57(d)(5)(i),
or to let the company know if for some reason the agency’s claims were invalid. Rather than pay
the claims or explain why they were invalid, Naser merely responded that the claims were false
and that Lexon should not pay them.
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 Fed. R. Civ. P. 59(e). The next day, May 15, the court
struck Naser’s motion for being too long under the district court’s local rules and gave Naser
“seven days to file a revised motion.” R. 67.
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). Fed. R. App. P. 4(a)(4). In that case, “the time to file an appeal runs for all
parties from the entry of the order disposing of the last such remaining motion.” Id. A Rule
59(e) motion is “timely” if filed within 28 days of the entry of judgment, a deadline the district
court may not extend. See Fed. R. Civ. P. 6(b)(2).
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. Fed. R. App. P. 4(a). Naser extended his time when he filed a
timely Rule 59(e) motion on May 14—28 days after the entry of judgment. Id. 4(a)(4); Fed. R.
Civ. P. 59(e). But this was Naser’s only “timely” Rule 59(e) motion, as the district court had no
authority to extend the rule’s 28-day deadline beyond May 14. Fed. R. Civ. P. 6(b)(2); see

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Bowles v. Russell, 551 U.S. 205 (2007). As a result, Lexon argues, Naser’s amended May 21
motion was untimely, and the court’s June 4 order disposing of the untimely motion on the
merits could not reset the 30-day clock.

The only order “disposing of” a “timely” Rule

59 motion, Fed. R. App. P. 4(a)(4), Lexon reasons, was the May 15 order striking Naser’s
original motion as too long, giving Naser until Monday, June 16 to file his notice of appeal. See
Fed. R. Civ. P. 6(a)(1)(C).
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 that 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.

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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 “[a] person seeking to file a longer brief [to] apply ex
parte in writing setting forth the reasons”). The May 15 order thus lacked the requirements of
finality integral to an order “disposing of” a motion.
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 (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 Civil Rule 83, which warns that “[a] local rule imposing a
requirement of form must not be enforced in a way that causes a party to lose any right because
of a nonwillful failure to comply.” Fed. R. Civ. P. 83(a)(2). Heeding this warning, we rejected a
claim that a Rule 59 motion filed on the last day of the 28-day period was untimely filed when
plaintiffs’ counsel used the wrong docket information to file the motion electronically. Shuler v.
Garrett, 715 F.3d 185, 187 (6th Cir. 2013). Even though the filing failed to comply with a local
rule of form—using the correct docket number—that error did not mean the document was
untimely filed. Id. In similar circumstances, other circuits have accepted notices of appeal as
timely filed even though they were rejected for not complying with local rules and even though
they had to be re-filed after the expiration of Appellate Rule 4’s immoveable deadline. See, e.g.,
Klemm v. Astrue, 543 F.3d 1139, 1143 (9th Cir. 2008) (accepting notice of appeal that was
rejected for arriving by mail rather than electronically, contrary to local rules); Contino v. United
States, 535 F.3d 124, 127 (2d Cir. 2008) (accepting notice of appeal that was rejected for arriving
electronically rather than by mail, contrary to local rules); United States v. Harvey, 516 F.3d 553,
556 (7th Cir. 2008) (accepting notice of appeal that was rejected for arriving electronically rather
than in electronic and paper form, contrary to local rules). If a brief may satisfy the form

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requirements of a notice of appeal under Appellate Rule 3, see Smith v. Barry, 502 U.S. 244,
245, 248–49 (1992), surely an unduly long motion and brief may satisfy the timing requirements
of a Civil Rule 59 filing so long as they are resubmitted in proper form shortly afterwards.
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, at *1 (D.C. Cir. 1996) (table); Fed. R. Civ. P. 5(d)(4) (“The clerk must not refuse
to file a paper solely because it is not in the form prescribed by these rules or by a local rule or
practice.”). Although this case involves a defective Rule 59 motion and not a defective notice of
appeal, there is no good reason to treat them differently. In a case factually indistinguishable
from this one, the Ninth Circuit concluded that a “Rule 59(e) motion, despite its technical
noncompliance with Local Rule 7.4.1”—requiring a statement that the parties conferred prior to
filing—“tolled the time for appeal until . . . the date on which the district court ruled on its
merits.” Feldman v. Allstate Ins. Co., 322 F.3d 660, 665–66 (9th Cir. 2003).
What of the reality that the district court, after realizing that Naser had attached an
overlength brief to his motion, entered an order “striking” the motion on the last day of the 28day period for filing a Rule 59 motion? Doesn’t that action prohibit the motion from being
resurrected after the period ends? This concern calls to mind a case in which our court did not
heed the warning that the form requirements of Appellate Rules 3 and 4 should not be enforced
at all costs without regard to whether the appellant has satisfied the function of them. In Becker
v. Montgomery, our court struck an otherwise timely notice of appeal because the appellant had
not complied with the “signature” requirement of Civil Rule 11 when he typed, rather than
signed, his name on the notice of appeal. Becker v. Montgomery, No. 99-4190 (6th Cir. May 12,
2000) (unpublished). The Supreme Court reversed. 532 U.S. 757 (2001). It agreed that Becker
should have signed the pleading. Id. at 763–64. But it disagreed that the consequence was to
dismiss the appeal. Instead, the Court said, we should have accepted the filing and given Becker
a limited amount of time to sign the pleading. Id. at 764–767. It then cited and quoted its own
rule and practice for dealing with such matters, where “return[ing]” a pleading and asking the
litigant to submit a proper pleading in terms of form within a set period of time becomes another

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word for “striking” it. Id. at 767; see S. Ct. R. 14.5 (“If the Clerk determines that a petition
submitted timely and good faith is in a form that does not comply with [rules governing
document preparation], the Clerk will return it with a letter indicating the deficiency.

A

corrected petition submitted in accordance with [the rule governing filing of documents] no more
than 60 days after the date of the Clerk’s letter will be deemed timely.”). Just so here.
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 Fed.
R. Civ. P. 6(a)(1)(C). Naser properly perfected his appeal.
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—once as an officer and again as an
individual.” Livonia Bldg. Materials Co. v. Harrison Constr. Co., 742 N.W.2d 140, 146 (Mich.
Ct. App. 2007) (internal quotation marks omitted). Naser’s second signature complies with this
“universal practice.” Naser offers no reason why he would sign the indemnification agreement
twice if he did not intend to hold himself personally liable. Naser had no authority to sign on

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behalf of MOS Holdings, which was owned by a private equity firm. And it would be odd if
Naser were signing on behalf of Michigan Orthopedic Services because the “undersigned
owners” sentence indicated that the owners, “jointly and severally, join[ed]” the agreement with
their signatures. R. 1-3 at 2 (emphasis added). Why would this section include a joint-andseveral-liability phrase if Naser and MOS Holdings were signing on behalf of the single
applicant? And why would the agreement say the owners were “join[ing]” the agreement if
Naser were signing on behalf of Michigan Orthopedic Services for a second time? Naser has no
satisfactory answer to either question, confirming the district court’s conclusion that he signed
the “undersigned owners” section on his own behalf.
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.,

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729 N.W.2d 277, 285 (Mich. Ct. App. 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.” 42 C.F.R. § 424.57(d)(5)(i). But Naser’s argument is an
affirmative defense that Lexon paid the agency in “bad faith,” a defense he forfeited by his
failure to raise it in his first responsive pleading. See Jones v. Bock, 549 U.S. 199, 212 (2007);
Fed. R. Civ. P. 8(c). The same regulation also required Lexon to pay the agency’s claims within
30 days. Yet when Lexon asked Naser for evidence that the claims were invalid, Naser declined
to provide it. R. 60 at 14. The court’s finding that Lexon did not act in bad faith is a distant cry
from being clearly erroneous.
For these reasons, we affirm.