Affholder, Inc., a Missouri Corporation v. Southern Rock, Inc., a Mississippi Corporation

On Motion to Assess Damages for Appeal

ALVIN B. RUBIN, Circuit Judge:

The appellee, Affholder, having prevailed in this diversity case, seeks to recover 15% of its judgment, in addition to the judgment amount, under a Mississippi statute that assesses such a fixed penalty against a litigant who unsuccessfully appeals. We conclude that Fed.R.App.P. 38 precludes such an automatic deterrent to the right to appeal and allows a federal appellate court to chasten an unsuccessful appellant only when it finds an appeal to be frivolous. In doing so, we decline to follow a prior decision by a panel of…