REC Marine Logistics, L.L.C. v. DeQuincy Richard ( 2020 )


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  • Case: 20-30341     Document: 00515629491         Page: 1     Date Filed: 11/06/2020
    United States Court of Appeals
    for the Fifth Circuit                              United States Court of Appeals
    Fifth Circuit
    FILED
    November 6, 2020
    Nos. 20-30170                         Lyle W. Cayce
    and                                   Clerk
    20-30341
    Summary Calendar
    REC Marine Logistics, L.L.C.,
    Plaintiff—Appellant,
    versus
    DeQuincy R. Richard,
    Defendant—Appellee.
    Appeals from the United States District Court
    for the Eastern District of Louisiana
    USDC No. 2:19-CV-11149
    Before King, Smith, and Wilson, Circuit Judges.
    Per Curiam:*
    Fred E. Salley, former counsel for plaintiff REC Marine Logistics,
    L.L.C., appeals sanctions ordered against him in the underlying matter. In
    the first appeal, Case No. 20-30170, Salley challenges $1,500 in sanctions
    *
    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    opinion should not be published and is not precedent except under the limited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.
    Case: 20-30341        Document: 00515629491              Page: 2      Date Filed: 11/06/2020
    Nos. 20-30170 and 20-30341
    that were imposed on him because of his failure to comply with discovery
    requests and to provide dates and times for a vessel inspection. 1 In the second
    appeal, Case No. 20-30341, Salley challenges sanctions that were awarded
    because of his disruptive behavior at a deposition. 2 In both appeals, Salley
    argues that the sanctions were improper because he had been suffering from
    severe illness at the time of the sanctioned behavior.
    “As a general rule an attorney must await the end of litigation in the
    district court to appeal a sanction.” Walker v. City of Mesquite, 
    129 F.3d 831
    ,
    832 (5th Cir. 1997). Indeed, we have held that “sanctions orders are not . . .
    appealable final decisions” under 
    28 U.S.C. § 1291
     or “appealable collateral
    orders” pursuant to Cohen v. Beneficial Life Insurance Co., 
    337 U.S. 541
    (1949). Williams v. Midwest Employers Cas. Co., 
    243 F.3d 208
    , 209 (5th Cir.
    2001). The latter is so because “sanctions can be and routinely are appealed
    when merged in the district court’s final judgment.” Click v. Abilene Nat’l
    Bank, 
    822 F.2d 544
    , 545 (5th Cir. 1987). 3
    1
    The district court did not expressly state whether those sanctions were awarded
    pursuant to its inherent power or a particular Federal Rule of Civil Procedure, but such
    sanctions are permitted under Fed. R. Civ. P. 37 for failure to make disclosures or
    cooperate in discovery.
    2
    Salley was individually sanctioned in the amount of $1,000 under Fed. R. Civ.
    P. 30(d)(2) (“[T]he court may impose an appropriate sanction . . . on a person who
    impedes, delays, or frustrates the fair examination of the deponent.”).
    3
    In Click v. Abilene National Bank, we specifically held that Rule 11 and Rule 37
    sanctions were not appealable pursuant to the collateral order doctrine. 
    822 F.2d at 545
    .
    However, this rule has also been applied to sanctions ordered under the district court’s
    inherent power, see Williams, 
    243 F.3d at 210
    , and the same logic applies to sanctions
    awarded under Rule 30(d)(2), see Grain Dealers Mut. Ins. Co. v. Cooley, 734 F. App’x 223,
    227 (5th Cir. 2018) (considering district court’s denial of Rule 30(d)(2) sanctions after
    entry of final judgment); Dardar v. Lafourche Realty Co., Inc., 
    849 F.2d 955
    , 959 (5th Cir.
    1988) (“[A]fter a truly final order, appellate review of any prior attorney’s fee
    determination will be available.”).
    2
    Case: 20-30341      Document: 00515629491         Page: 3    Date Filed: 11/06/2020
    Nos. 20-30170 and 20-30341
    Because the underlying matter is ongoing and no final judgment has
    been entered, we asked the parties to submit supplemental letter briefs
    addressing whether Salley’s appeals are premature. Both parties responded
    that, because Salley was allowed to withdraw as counsel in the underlying
    matter on October 6, 2020, his appeals of sanctions ordered against him
    should be permitted.
    We have recognized limited exceptions to the rule that sanctions
    orders are not appealable under the collateral order doctrine. Relevant to this
    case, in Markwell v. County of Bexar, the court held that such orders are
    appealable “where an order assesses sanctions against an attorney who has
    withdrawn from representation at the time of the appeal, and immediate
    appeal of the sanctions order will not impede the progress of the underlying
    litigation.” 
    878 F.2d 899
    , 901 (5th Cir. 1989). It should be noted that the
    continued validity of this exception has been in question since the Supreme
    Court decision in Cunningham v. Hamilton County, in which the Court
    emphasized that “the appealability of a Rule 37 sanction imposed on an
    attorney” should not “turn on the attorney’s continued participation.” 
    527 U.S. 198
    , 209 (1999); see also Williams, 
    243 F.3d at 210
     (“It is . . . doubtful
    that the exception[] to Click created by Markwell . . . survive[d]
    Cunningham.”). Regardless of Markwell’s continuing validity, it is not
    applicable in this case. Though Salley did withdraw as an attorney on October
    6, 2020, he had not withdrawn “at the time of the appeal” in either Case No.
    20-30341 or Case No. 20-30170. Markwell, 
    878 F.2d at 901
    ; see also Nogess v.
    Poydras Center, L.L.C., 728 F. App’x 303, 307 (5th Cir. 2018) (refusing to
    apply Markwell exception because, though sanctioned attorneys no longer
    represented a party at the time of decision, they did not withdraw until
    “months after the time of the appeal”). Indeed, Salley’s withdrawal in
    October did not come until months after his appeals were filed. Accordingly,
    even if the Markwell exception has continuing viability (which we need not
    3
    Case: 20-30341     Document: 00515629491         Page: 4    Date Filed: 11/06/2020
    Nos. 20-30170 and 20-30341
    decide), it does not apply in this case, and we are without jurisdiction over
    Salley’s appeals.
    Based on the foregoing, the appeals are DISMISSED for lack of
    jurisdiction.
    4