We direct the Clerk of the Court to amend the official caption in accordance with… v. Univ. of Rochester Med. Ctr., et al. UNITED STATES COURT OF APPEALS 1 2 FOR THE…

* We direct the Clerk of the Court to amend the official
caption in accordance with this opinion.
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10-2258-cv(L)
Johnson, et al. v. Univ. of Rochester Med. Ctr., et al.
UNITED STATES COURT OF APPEALS 1
2
FOR THE SECOND CIRCUIT 3
4
5
6
August Term, 2010 7
8
(Argued: March 15, 2011 Decided: April 19, 2011) 9
10
Docket Nos. 10-2258-cv(L); 10-2267-cv (con) 11
12
13
K EITH J OHNSON , M.D., bringing this action on behalf of the 14
United States of America, 15
16
Plaintiff-Appellant, 17
18
L AURA S CHMIDT , R.N., bringing this action on behalf of the 19
United States of America, 20
21
Plaintiff, 22
- v. - 23
24
T HE U NIVERSITY OF R OCHESTER M EDICAL C ENTER , S TRONG M EMORIAL H OSPITAL , 25
26
Defendants-Appellees.*
27
28
29
30
Before: 31
W ESLEY , C HIN , and L OHIER , Circuit Judges. 32
33
Appeal from a judgment and orders of the United States 34
District Court for the Western District of New York 35
(Larimer, J.) that: (1) dismissed Appellant’s complaint and 36
denied leave to amend; (2) denied relief pursuant to Federal 37

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1 Laura Schmidt, R.N. brought the qui tam action in
conjunction with Johnson. This appeal, however, is brought
solely on Johnson’s behalf. Accordingly, we refer solely to
Johnson throughout.
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Rule of Civil Procedure 60(b)(1); and (3) sanctioned 1
Appellant’s counsel pursuant to Federal Rule of Civil 2
Procedure 11 or, alternatively, 28 U.S.C. § 1927. 3
4
We DISMISS the appeal from the district court’s 5
judgment and order that dismissed Appellant’s complaint and 6
denied leave to amend. We AFFIRM the orders that denied 7
relief pursuant to Federal Rule of Civil Procedure 60(b)(1) 8
and sanctioned Appellant’s attorney pursuant to § 1927. 9
10
11
12
CHRISTINA A. AGOLA, Christina A. Agola, PLLC, 13
Rochester, NY, for Plaintiff-Appellant. 14
15
THOMAS S. D’ANTONIO, (Christin M. Murphy, on the 16
brief), Ward Greenberg Heller & Reidy LLP, 17
Rochester, NY, for Defendants-Appellees. 18
19
20
21
22
23
P ER C URIAM : 24
Appellant Keith Johnson, M.D. 1 appeals from a judgment 25
and three orders of the United States District Court for the 26
Western District of New York (Larimer, J.) that: (1) 27
dismissed his complaint and denied leave to amend; (2) 28
denied relief under Federal Rule of Civil Procedure 29
60(b)(1); and (3) sanctioned his attorney. 30

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2 Johnson moved for leave to amend on December 31, 2008.
Thus, former Rule 15 governed the amendment. Former Rule 15
stated:
“A party may amend the party’s pleading once
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For the reasons stated below, we DISMISS the appeal 1
from the judgment and order that dismissed his complaint and 2
denied leave to amend for lack of appellate jurisdiction. 3
We AFFIRM the orders that denied Rule 60(b)(1) relief and 4
imposed § 1927 sanctions. 5
I. Background 6
Johnson filed a qui tam action pursuant to 31 U.S.C. 7
§ 3729, alleging that the University of Rochester Medical 8
Center and Strong Memorial Hospital (the “University”) 9
fraudulently billed Medicare/Medicaid for medical procedures 10
performed by unsupervised residents. The United States 11
declined to intervene, the district court unsealed the 12
complaint, and Johnson served the University. 13
The University then moved to dismiss Johnson’s 14
complaint for failure to state a claim. In response, 15
Johnson moved for leave to amend, arguing that leave should 16
be “freely given” in the absence of “bad faith,” “repeated 17
failures to cure deficiencies,” or “futility of the 18
amendment.” 2 Johnson did not assert that he was entitled to 19

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as a matter of course at any time before a
responsive pleading is served . . . .
Otherwise a party may amend the party’s
pleading only by leave of court or by written
consent of the adverse party; and leave shall
be freely given when justice so requires.”
Fed. R. Civ. P. 15(a) (1998).
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amend as of right. In the University’s opposition to 1
Johnson’s motion, it moved for sanctions pursuant to Federal 2
Rule of Civil Procedure 11. 3
In a judgment entered February 19, 2010, the district 4
court dismissed the action and denied Johnson leave to 5
amend, holding that Johnson’s request to amend his complaint 6
would prove futile because he repeated the original 7
complaint’s insufficient allegations and added two new, but 8
ultimately defective, causes of action. The court also 9
denied, without prejudice, the University’s sanctions motion 10
because the University failed to file the motion separately, 11
as required by Federal Rule of Civil Procedure 11(c)(2). 12
On March 22, 2010, Johnson moved for reconsideration 13
pursuant to Federal Rule of Civil Procedure 60(b)(1). 14
Johnson argued that the district court should have granted 15
leave to amend because former Federal Rule of Civil 16
Procedure 15(a) allowed one amendment as of right. The 17

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district court denied reconsideration, reasoning that it 1
made no mistake since Johnson committed the decision asking 2
whether to allow amendment to the court’s discretion by 3
asking for permission to amend. 4
The University subsequently filed a separate sanctions 5
motion pursuant to Federal Rule of Civil Procedure 11 or, 6
alternatively, 28 U.S.C. § 1927, alleging that Johnson’s 7
attorney knowingly included a false accusation in the 8
amended complaint. The district court granted the sanctions 9
motion, holding that Johnson’s attorney relentlessly pursued 10
claims without basis in law or fact and knowingly included a 11
false statement in the proposed amended complaint. 12
II. Discussion 13
A. Jurisdiction to Review the District Court’s Judgment 14
This Court lacks appellate jurisdiction over Johnson’s 15
appeal from the district court’s February 19, 2010 judgment 16
and order dismissing his complaint and denying leave to 17
amend. Pursuant to Federal Rule of Appellate Procedure 4, a 18
party must file a notice of appeal within thirty days from 19
the date judgment is entered. Fed. R. App. P. 4(a)(1)(a). 20
A party tolls its filing deadline, however, by filing a Rule 21
60(b) motion within twenty-eight days of the judgment’s 22

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3 Johnson also argues that the district court’s order
denying the University’s sanctions motion without prejudice
rendered the February 19th judgment and order non-final.
Although Johnson is correct that some sanctions orders (e.g.,
discovery sanctions) are “inextricably intertwined” with the
merits of a case when the order appealed from is a sanctions
order, see Cunningham v. Hamilton Cnty., 527 U.S. 198, 205-06
(1999), there was no reasonable possibility in this case that
resolving the University’s sanction motion would require further
analysis of the merits. The pendency of the sanctions motion
therefore did not extend the time to appeal the merits judgment.
Cf. Salovaara v. Eckert, 222 F.3d 19, 27 n.4 (2d Cir. 2000)
(“Salovaara’s time to appeal from the District Court’s decision
on the merits began to run in July 1998, notwithstanding the fact
that Eckert was granted leave to file a motion for attorney’s
fees and/or sanctions.”)
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entry. Fed. R. App. P. 4(a)(4)(A)(vi). Filing deadlines 1
are mandatory and jurisdictional. Silivanch v. Celebrity 2
Cruises, Inc., 333 F.3d 355, 363 (2d Cir. 2003). 3
Accordingly, failure to comply with Rule 4 warrants 4
dismissal. Glinka v. Maytag Corp., 90 F.3d 72, 74 (2d Cir. 5
1996) (citation omitted). 6
Johnson filed his Rule 60(b) motion on March 22, 2010, 7
three days after the twenty-eight day tolling deadline 8
expired. Because Johnson’s Rule 60(b) motion failed to toll 9
his deadline to file a notice of appeal, his June 4, 2010 10
notice of appeal was untimely. 3 Accordingly, this Court 11
lacks appellate jurisdiction over the judgment and order 12
dismissing Johnson’s complaint and denying leave to amend. 13

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4 Johnson cites Kassner v. 2nd Avenue Delicatessen, Inc.,
496 F.3d 229 (2d Cir. 2007), to support his contention that a
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B. Johnson’s Request for Reconsideration 1
Johnson contends that the district court abused its 2
discretion by declining to reconsider its order that denied 3
his request for leave to amend. Federal Rule of Civil 4
Procedure 60(b)(1) permits a district court to grant relief 5
from a judgment based on “mistake, inadvertence, surprise, 6
or excusable neglect.” Fed. R. Civ. P. 60(b)(1) (2010). We 7
review a district court’s decision on a Rule 60(b) motion 8
for abuse of discretion. Ins. Co. of N. Am. v. Pub. Serv. 9
Mut. Ins. Co., 609 F.3d 122, 127 (2d Cir. 2010). A court 10
abuses it discretion when (1) its decision rests on an error 11
of law or a clearly erroneous factual finding; or (2) cannot 12
be found within the range of permissible decisions. Zervos 13
v. Verizon N.Y., Inc., 252 F.3d 163, 169 (2d Cir. 2010). 14
Here, the district court denied reconsideration after 15
concluding that Johnson had not requested permission to 16
amend as of right, and that it made no mistake in not 17
divining that Johnson actually intended to do so. The court 18
held that because Johnson sought leave to amend, it was 19
within the court’s discretion to deny his request. 4 We 20

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district court must grant a motion for leave to amend when the
plaintiff can also amend as of right. Kassner does not stand for
the broad proposition that Johnson asserts. Rather, Kassner
states that a plaintiff’s right to amend as a matter of course
“is subject to the district court's discretion to limit the time
[to amend] the pleadings in a scheduling order issued under Rule
16(b).” Id. at 244.
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agree; the district court properly exercised its discretion 1
when it denied Johnson’s Rule 60(b) motion. 2
C. The District Court’s Order Granting Sanctions 3
Johnson also appeals from the district court’s order 4
imposing sanctions under Rule 11 or, alternatively, 28 5
U.S.C. § 1927. We review a district court’s sanctions order 6
for abuse of discretion. Gollomp v. Spitzer, 568 F.3d 355, 7
368 (2d Cir. 2009). 8
Johnson’s attorney contends that the court abused its 9
discretion because the University failed to serve the 10
sanctions motion twenty-one days before filing it, in 11
violation of Rule 11(c)(2)’s safe-harbor provision. The 12
University argues that it substantially complied with the 13
safe-harbor provision by delineating Appellant-counsel’s 14
sanctionable conduct in its opposition to Johnson’s motion 15
for leave to amend. Because we hold that the district court 16
properly exercised its discretion to sanction pursuant to 17
§ 1927, we need not reach the court’s alternate Rule 11 18

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sanctions ruling. 1
A court may award § 1927 sanctions only “when the 2
attorney’s actions are so completely without merit as to 3
require the conclusion that they must have been undertaken 4
for some improper purpose.” Gollomp, 568 F.3d at 368. In 5
addition, the court must find bad faith and must provide the 6
attorney notice and an opportunity to be heard. Id. 7
Here, after a hearing on the University’s sanctions 8
motion, the district court found that Johnson’s attorney 9
pursued claims she knew had no basis in law or fact. The 10
court focused on counsel’s repeated allegations that the 11
University made an unsolicited, libelous statement about 12
Johnson to the Delaware State Medical Board when, in fact, 13
Johnson’s attorney requested and authorized the release of 14
the allegedly libelous statement. We hold that the district 15
court’s decision was reasonable and not an abuse of 16
discretion. 17
III. Conclusion 18
For the above stated reasons, we DISMISS the appeal 19
from the judgment and order dismissing the complaint and 20
denying leave to amend. We AFFIRM the orders denying Rule 21

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60(b)(1) relief and sanctioning Johnson’s attorney pursuant 1
to § 1927. 2

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