In Re: Gregg Phillips ( 2022 )

Case: 22-20578 Document: 00516555187 Page: 1 Date Filed: 11/22/2022
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
FILED
November 22, 2022
No. 22-20578 Lyle W. Cayce
Clerk
In re: Gregg Phillips; Catherine Engelbrecht,
Petitioners.
Petition for a Writ of Mandamus
to the United States District Court
for the Southern District of Texas
USDC No. 4:22-CV-3096
Before Haynes, Engelhardt, and Oldham, Circuit Judges. †
Per Curiam:*
Petitioner-defendants request relief from the district court’s civil-
contempt order. We previously ordered petitioners released from custody.
Today we vacate the contempt order.
Plaintiff in the district court, Konnech, Inc., sued petitioner-
defendants for hacking Konnech’s computers. The district court then used a
temporary restraining order, a preliminary injunction, and a civil-contempt
order to litigate the case on Konnech’s behalf. For example, prong (v) of the
now-dissolved TRO required petitioner-defendants to “identify each
†
Judge Haynes concurs in the judgment only.
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
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No. 22-20578
individual and/or organization involved in accessing [Konnech’s] protected
computers.” App. 120. Such a demand makes perfect sense when made by a
plaintiff in discovery. But the record does not reveal what sort of emergency
justified the district court’s demand for that information before the parties
could file Rule 12 motions, before the defendants could file an answer, before
the parties could file their initial disclosures, or before discovery could begin
let alone conclude in the ordinary course. See Winter v. Nat. Res. Def. Council,
Inc., 555 U.S. 7, 24 (2008) (“A preliminary injunction is an extraordinary
remedy never awarded as of right.”). Much less did the district court explain
what sort of emergency could warrant jailing the petitioner-defendants for
not making such immediate disclosures. Rather, the district court made clear
that it was imposing its disclosure requirements because it—the district
court—wanted to add defendants to the lawsuit. Resp. 13; App. 188. That is
not how the Federal Rules of Civil Procedure work.
It has long been settled that a party cannot be held in contempt for
“disobeying an invalid order.” Donovan v. City of Dallas, 377 U.S. 408, 414
(1964); see also United States v. Dickinson, 465 F.2d 496, 513–14 (5th Cir.
1972). And here, the district court’s TRO was invalid because it disregarded
the order of operations imposed by the Federal Rules. It necessarily follows
that any contempt order premised on violations of the TRO was “bottomed
irrevocably on a mistake of law.” Dickinson, 465 F.2d at 514.
That said, the district court’s TRO has since lapsed. It was replaced
by a preliminary injunction, issued on October 31, 2022. Petitioners have not
yet exercised their right to appeal that injunction. See 28 U.S.C. § 1292(a)(1);
Fed. R. App. P. 4(a)(1)(A) (providing 30 days to notice an appeal of the
preliminary injunction).
It is not clear whether the district court intends to employ any further
coercive measure in connection with its prior contempt order, or in
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No. 22-20578
connection with the more recent preliminary injunction. And the merits of
any appeal from the district court’s preliminary injunction are not before us.
Accordingly, we VACATE the contempt order because the district court
premised it on the now-dissolved TRO. The case is REMANDED to the
district court for further proceedings consistent with the Federal Rules. Any
future appellate proceedings regarding any future contempt orders shall be
directed to and decided by this panel.
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