Imig, Inc. v. Steel City Vacuum Co. ( 2023 )

22-125
Imig, Inc. v. Steel City Vacuum Co.
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION
TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS
GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S
LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH
THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY
CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT
REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit,
held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the
City of New York, on the 10th day of January, two thousand twenty-three.
PRESENT:
SUSAN L. CARNEY,
RICHARD J. SULLIVAN,
Circuit Judges,
LEWIS J. LIMAN,
District Judge. *
_____________________________________
IMIG, INC., NATIONWIDE SALES AND
SERVICES INC., GUMWANT INC., PERFECT
PRODUCTS SERVICE & SUPPLY INC.,
Plaintiffs-Appellants,
v. No. 22-125
STEEL CITY VACUUM COMPANY,
Respondent-Appellee,
* Judge Lewis J. Liman, of the United States District Court for the Southern District of New York,
sitting by designation.
XU SHIHUI, OMI ELECTRIC APPLIANCE
COMPANY CO., LTD., BEIJING CHINA BASE
STARTRADE CO., LTD.,
Defendants.
_____________________________________
For Plaintiffs-Appellants: LAURA JEAN SCILEPPI (William
Dunnegan, on the brief), Dunnegan &
Scileppi LLC, New York, NY.
For Respondent-Appellee: Brian A. Sutherland, Reed Smith LLP,
New York, NY.
Appeal from orders of the United States District Court for the Eastern
District of New York (Gary R. Brown, Judge).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the appeal is DISMISSED.
Imig, Inc., Nationwide Sales and Services Inc., GUMWANT INC., and
Perfect Products Service & Supply Inc. (collectively, “Nationwide”) appeal from
what they refer to as “final orders of the district court, entered January 11, 2022
and January 18, 2022.” Nationwide Br. at 1. Because those orders are not in fact
final within the meaning of 28 U.S.C. § 1291, we dismiss Nationwide’s appeal for
lack of jurisdiction. We assume the parties’ familiarity with the underlying facts,
procedural history, and issues on appeal.
2
In 2016, Nationwide, which is in the business of selling vacuum cleaners and
parts, filed this suit in the Eastern District of New York against Xu Shihui and his
companies Omi Electric Appliance Company Co., Ltd. (“Omi”) and Beijing China
Base Startrade Co., Ltd. Parallel to that litigation, two of the Nationwide entities
also filed suit in the Eastern District against Steel City Vacuum Company (“Steel
City”) for its importation and sale of vacuum products allegedly procured from
Shihui and his companies. In 2018, the district court granted summary judgment
in favor of Steel City in the latter action, in part because the undisputed evidence
showed that Steel City had in fact acquired the products in question from
Nationwide. 1 Shortly thereafter, in the other litigation against Shihui and his
companies, the district court dismissed the majority of Nationwide’s complaint,
permitting only a breach-of-contract claim against Omi to go forward, with the
caveat that Nationwide was collaterally estopped from relitigating any alleged
sales to Steel City.
1 Because the action against Steel City included a claim for patent infringement, Nationwide
appealed to the United States Court of Appeals for the Federal Circuit, which summarily
affirmed.
3
In November 2019, as part of its litigation against Omi, Nationwide served
third-party subpoenas on Steel City pursuant to Rule 45 of the Federal Rules of
Civil Procedure. While the subpoenas listed the issuing court as the Eastern
District of New York, the subpoenas requested compliance in Pittsburgh,
Pennsylvania, presumably because Nationwide understood Rule 45(c) to require
the place of compliance to be within 100 miles of where Steel City resided and/or
regularly transacted business. Steel City objected on numerous grounds,
including that the discovery sought was irrelevant in light of the district court’s
collateral-estoppel order and unduly burdensome because Nationwide had made
no effort to obtain the documents and information from party Omi. Pursuant to
Rule 45(d)(2)(B)(i), Nationwide then filed a motion to compel in the Western
District of Pennsylvania. That same day, pursuant to Rule 45(f), the Western
District of Pennsylvania (Nora B. Fischer, Judge) transferred the motion to the
Eastern District of New York.
Back in the Eastern District of New York, Nationwide’s motion was
docketed as its own ancillary proceeding. Steel City opposed Nationwide’s
motion to compel, asserting multiple reasons why the motion should be denied.
After the briefing was complete, the motion sat for over two years before the
4
district court docketed a minute entry ordering that the ancillary action be closed,
without any further explanation. See Dist. Ct. Min. Order (Jan. 11, 2022). In
response, Nationwide filed a motion requesting that the district court (1) vacate
the order closing the ancillary action given that the motion to compel was still
outstanding, and (2) transfer the action to the magistrate judge assigned the
underlying Omi litigation. Days later, the district court summarily denied that
motion. See Dist. Ct. Min. Order (Jan. 18, 2022). 2
Despite the fact that the underlying Omi litigation is still ongoing,
Nationwide now appeals from the district court’s January 11, 2022 and January 18,
2022 orders. Because these orders are not yet final within the meaning of 28
U.S.C. § 1291, or otherwise subject to the collateral-order doctrine, we lack
jurisdiction to hear this appeal and must dismiss it. 3
This Court has appellate jurisdiction over “final decisions of the district
courts.” 28 U.S.C. § 1291. “A decision . . . is final if it ends the litigation on the
2 After the transfer from the Western District of Pennsylvania, the ancillary action was assigned
to then-Magistrate Judge Brown, who was also assigned to the underlying Omi litigation. Upon
becoming a district judge, Judge Brown retained the ancillary action, but the underlying Omi
litigation was reassigned to a magistrate judge.
3 In contrast to the Steel City litigation, see supra note 1, the Omi litigation never included a claim
for patent infringement. Consequently, an appeal from a final decision in that action would be
properly filed in this Court, see 28 U.S.C. § 1294, rather than the Federal Circuit.
5
merits and leaves nothing for the court to do but execute the judgment.”
Guggenheim Cap., LLC v. Birnbaum, 722 F.3d 444, 449 (2d Cir. 2013) (internal
quotation marks omitted). Additionally, under the collateral-order doctrine, we
have jurisdiction to review an order that “(1) conclusively determines the disputed
question; (2) resolves an important issue completely separate from the merits of
the action; and (3) is effectively unreviewable on appeal from a final judgment.”
United States v. Bescond, 24 F.4th 759, 766 (2d Cir. 2021) (internal quotation marks
and alterations omitted).
Applying these principles, we have recognized that while orders denying a
motion to compel compliance with a third-party subpoena are immediately
appealable when issued by a district court in a different circuit than the district court
that issued the subpoena as part of the underlying proceedings, such orders are
not immediately appealable when issued by a district court in the same circuit. See
Barrick Grp., Inc. v. Mosse, 849 F.2d 70, 73 (2d Cir. 1988); see also Stolt-Nielsen SA v.
Celanese AG, 430 F.3d 567, 574 n.5 (2d Cir. 2005); Am. Plan Adm’rs v. S. Broward
Hosp. Dist., 39 F.4th 59, 61 (2d Cir. 2022). This is because when the two district
courts are in the same circuit, the “circuit court can consider any appeal on
discovery issues at the same time as the appeal from the judgment in the
6
underlying action.” Barrick, 849 F.2d at 73. In other words, when the two district
courts are in the same circuit, we consider the two actions “in the
aggregate” – “analogous to the ordinary case in which the same district court
conducts discovery and considers the merits” – and thus do not consider the
denial of a motion to compel discovery to be final and appealable until the
underlying action reaches final judgment. McCook Metals LLC v. Alcoa, Inc., 249
F.3d 330, 335 (4th Cir. 2001) (characterizing Barrick).
Here, the district court – albeit without explanation – effectively denied
Nationwide’s motion to compel Steel City’s compliance with the Rule 45
subpoenas in its January 11, 2022 order, and then refused to reconsider that denial
in its January 18, 2022 order. See Henrietta D. v. Giuliani, 246 F.3d 176, 181 (2d Cir.
2001) (“Appealability turns on what has been ordered, not how it has been
described.” (citation omitted)). Under these circumstances – where the district
court closed the ancillary action and then refused to vacate that closure upon being
reminded that it had not technically ruled on Nationwide’s motion to compel – it
seems “most plausible” that the district court intended to deny the motion.
United States ex rel. Polansky v. Pfizer, Inc., 762 F.3d 160, 163–64 (2d Cir. 2014); see
also Cox v. United States, 783 F.3d 145, 148–49 (2d Cir. 2015). Therefore, the Eastern
7
District of New York’s orders denying Nationwide’s motion to compel compliance
with the Eastern District of New York’s subpoenas, and then denying
reconsideration of that motion, are not reviewable until the underlying Omi
litigation reaches final judgment. See P.H. Glatfelter Co. v. Windward Prospects Ltd.,
847 F.3d 452, 456–57 (7th Cir. 2017) (applying the Barrick rule to a case where the
same district court presided over the ancillary and underlying action); Blanco v.
United States, 775 F.2d 53, 56 (2d Cir. 1985) (“If the [original] order was not final
and appealable, orders refusing to reconsider it likewise could not have been.”).
Nationwide makes two attempts to distinguish Barrick, but neither is
availing. First, Nationwide contends that, unlike in Barrick, Nationwide “appeals
from a highly irregular procedure in which the district court simply closed an
action without issuing any decision.” Nationwide Br. at 3. To be sure, the
district court’s denial of Nationwide’s motion to compel was effectuated (at least
in part) by the closing of the ancillary action. But we fail to see how that
materially distinguishes this case from Barrick, particularly given that “[t]o test for
finality, reviewing courts employ a ‘practical rather than a technical’ analysis.”
Polansky, 762 F.3d at 163 (quoting Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541,
546 (1949)). Notably, Nationwide has not provided any explanation of how the
8
district court’s actions could be construed as anything other than a denial of
Nationwide’s motion to compel, and certainly has not provided any explanation
for why such an alternative interpretation would transform the district court’s
orders into final decisions within the meaning of 28 U.S.C. § 1291.
Second, Nationwide contends that the district court’s putative denial of
Nationwide’s request to consolidate the ancillary action with the underlying Omi
litigation will make it impossible for Nationwide to appeal from these orders after
final judgment is reached in the Omi litigation. But Nationwide mischaracterizes
the record. In its January 18, 2022 order, the district court denied Nationwide’s
motion to vacate the order closing the ancillary action and transfer the action to
the magistrate judge assigned the Omi litigation. The district court never ruled
on a motion to consolidate the two actions. Moreover, we see no reason why the
lack of consolidation at the district-court level is a barrier to appealing the district
court’s orders in the ancillary action once final judgment is reached in the
underlying litigation, as contemplated by Barrick. See Hooker v. Continental Life
Ins. Co., 965 F.2d 903, 905 (10th Cir. 1992) (adopting the Barrick rule and explaining
that, upon final judgment in the underlying action, notices of appeal may be filed
in the district of the underlying action and the district of the ancillary action,
9
whereupon the parties may then move to consolidate the appeals under Federal
Rule of Appellate Procedure 3(b)).
We have considered all of Nationwide’s remaining arguments regarding
jurisdiction and find them to be meritless. Accordingly, we DISMISS the
appeal. 4
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk of Court
4 Because we dismiss for lack of jurisdiction, we do not reach the merits of whether the district
court abused its discretion to the extent it denied Nationwide’s motion in its January 11, 2022 and
January 18, 2022 orders. See In re Agent Orange Prod. Liab. Litig., 517 F.3d 76, 102 (2d Cir. 2008)
(reviewing discovery rulings for abuse of discretion); In re Fitch, Inc., 330 F.3d 104, 108 (2d Cir.
2003) (same).
10