Chaunte Ott v. City of Milwaukee , 682 F.3d 552 ( 2012 )

In the
United States Court of Appeals
For the Seventh Circuit
Nos. 11-1541 & 11-1638
C HAUNTE O TT,
Plaintiff-Appellee,
v.
C ITY OF M ILWAUKEE, et al.,
Defendants.
A PPEALS OF:
W ISCONSIN D EPARTMENT OF C ORRECTIONS
and W ISCONSIN STATE C RIME L ABORATORY,
Appellants.
Appeals from the United States District Court
for the Eastern District of Wisconsin.
No. 2:09-CV-00870-RTR—Rudolph T. Randa, Judge.
A RGUED S EPTEMBER 28, 2011—D ECIDED M AY 29, 2012
Before B AUER, W OOD , and T INDER, Circuit Judges.
W OOD , Circuit Judge. Following his vindication after
his wrongful conviction and incarceration for the 1995
murder of Jessica Payne, Chaunte Ott brought a civil
rights action against the City of Milwaukee and several
2 Nos. 11-1541 & 11-1638
police officers. That case is still pending. This appeal
was filed when Ott served subpoenas on two non-party
state agencies, the Wisconsin Crime Laboratory and the
Wisconsin Department of Corrections. Rather than
comply, the state agencies filed motions to quash. The
district court denied those motions, at which point the
state agencies filed this appeal, invoking jurisdiction under
the collateral-order doctrine. We conclude that this is not
a proper case for that basis of jurisdiction, in light of
the Supreme Court’s decision in Mohawk Industries, Inc. v.
Carpenter, 130 S. Ct. 599 (2009). We add that even if
we have read Mohawk Industries too strictly and jurisdic-
tion is proper, we would find that the state agencies’
arguments lack merit.
I
Ott served 13 years for the murder of Jessica Payne
before DNA evidence exonerated him. The State of Wis-
consin dropped all charges against him in 2009 after
a Wisconsin appellate court held that he was entitled to
a new trial. Shortly thereafter, the Milwaukee Police
Department announced that it had connected the DNA
found on nine victims, including Payne, to Walter E. Ellis.
In light of that finding and his exoneration, Ott filed an
action under 42 U.S.C. § 1983 against several Milwaukee
police officers and the City of Milwaukee; he sought
damages for his wrongful conviction and incarceration.
In furtherance of those claims, Ott served subpoenas on
the Wisconsin Crime Laboratory and the Wisconsin
Department of Corrections pursuant to Federal Rule
of Civil Procedure 45, in an effort to obtain documents
Nos. 11-1541 & 11-1638 3
associated with the DNA testing of Ellis. (We note
that these entities lie within 100 miles of the courthouse,
see F ED. R. C IV. P. 45(b)(2)(B), and so there is no doubt
that they were part of the pending action.)
The state agencies moved to quash the subpoenas,
arguing that they are not “persons” subject to Rule 45
and that Ott’s service by certified mail was invalid. The
district court denied that motion. The state agencies
then moved to amend the court’s order on the ground
that they had preserved additional substantive objec-
tions that they had not previously raised. The district
court rejected the additional arguments as untimely,
but it nevertheless allowed the state agencies to submit
briefs on the question whether special circumstances
warranted an exception to waiver. After reviewing
that submission, the court concluded that the state
agencies were not entitled to an exception and it ordered
the production of the subpoenaed materials. The state
agencies then filed this appeal.
II
We consider first whether the state agencies’ appeal
is properly before this court. The state agencies assert
that it is, noting that this court has held that nonparties
may directly appeal adverse final discovery orders
before final judgment is entered in the underlying case.
See Dellwood Farms, Inc. v. Cargill, Inc., 128 F.3d 1122, 1125
(7th Cir. 1997) (“When the order is directed against a
nonparty, as it is here, [the nonparty] has no appellate
remedy at the end of the litigation, so he is entitled to
4 Nos. 11-1541 & 11-1638
appeal immediately.”). Ott responds that the Supreme
Court’s decision in Mohawk Industries, Inc. v. Carpenter, 130
S. Ct. 599 (2009), has effectively overruled this court’s
position on the issue.
Collateral-order review is based on a “practical” con-
struction of 28 U.S.C. § 1291; it is not an exception to the
final-judgment rule. Cohen v. Beneficial Indus. Loan Corp.,
337 U.S. 541, 546 (1949); Digital Equip. Corp. v. Desktop
Direct, Inc., 511 U.S. 863, 867 (1994). Immediate finality
exists only for orders “that are conclusive, that resolve
important questions completely separate from the
merits, and that would render such important questions
effectively unreviewable on appeal from final judgment
in the underlying action.” Digital Equip., 511 U.S. at
867. The Supreme Court recently emphasized the
narrow scope of the doctrine in Mohawk Industries, where
it held that a collateral-order appeal was not available
to review an order that may violate the attor-
ney-client privilege. The Court deemed postjudgment
appeal sufficient to protect the interests associated with
that privilege. If a party is particularly concerned about
turning over privileged materials, the Court noted,
there are other alternatives available, such as an inter-
locutory appeal under 28 U.S.C. § 1292(b), a writ of manda-
mus, or an appeal from a contempt citation. Id. at 608.
The overriding lesson from Mohawk Industries is that
“the class of collaterally appealable orders must remain
‘narrow and selective in its membership.’ ” Id. at 609,
quoting Will v. Hallock, 546 U.S. 345, 350 (2006). The
adversely affected party is expected to put its money
where its mouth is, so to speak, before an appeal will
be heard.
Nos. 11-1541 & 11-1638 5
Just as a party asserting attorney-client privilege
is compelled to use a method other than a collateral-
order appeal if it wants to avoid turning over certain
documents, so in our view must the state agencies
resist their subpoena orders more definitively before
this court may exercise jurisdiction. It might be enough
that the state agencies may resist compliance and risk
a contempt order, if they feel strongly that a prejudgment
appeal is necessary. Motorola, Inc. v. Computer Displays
Int’l, Inc., 739 F.2d 1149, 1154 (7th Cir. 1984) (“An
order finding a party in civil contempt disposes of all
the issues raised only if it includes both a finding of
contempt and the imposition of a sanction.”).
There is no risk of an unwarranted intrusion on
state sovereignty associated with this course of action;
notably, the two state agencies here were acting as the
agents of the City’s Police Department, and Ott’s suit
against the City and its officers falls comfortably within
federal authority. It is well understood that “courts
have inherent power to enforce compliance with their
lawful orders through civil contempt.” Shillitani v.
United States, 384 U.S. 364, 370 (1966); see also Young
v. United States ex rel. Vuitton et Fils, S.A., 481 U.S. 787,
794 (1987) (“[I]t is long settled that courts possess
inherent authority to initiate contempt proceedings for
disobedience to their orders.”). We know for a fact that
state entities are not unfamiliar with the possibility of
contempt proceedings arising out of their failure to
obey federal court orders. Bailey v. Roob, 567 F.3d 930,
937-38 (7th Cir. 2009) (discussing the possibility of con-
tempt proceedings against state agency arising out of
6 Nos. 11-1541 & 11-1638
consent decree); Power v. Summers, 226 F.3d 815, 819 (7th
Cir. 2000) (concluding that injunction against state may
be enforced by contempt citation).
We find immaterial the fact that this case involves a
discovery order directed at nonparties whereas Mohawk
Industries involved parties to the case. Under the facts
presented here, the state agencies’ interests in protecting
their privileged materials are as strong as those of a
party. Ott seeks documents created by the agencies
and that are in their possession. There is no risk that
the agencies lack the proper incentives to protect the
subpoenaed materials. The Supreme Court’s concern
that “piecemeal, prejudgment appeals . . . undermine[]
‘efficient judicial administration’ and encroach[] upon
the prerogatives of district court judges” applies with
equal force to the nonparties subject to the discovery
orders in this case. Mohawk Industries, 130 S. Ct. at 605,
quoting Firestone Tire & Rubber Co. v. Risjord, 449 U.S.
368, 374 (1981).
III
A
If perchance we have read Mohawk Industries too
strictly and the Court meant to leave a wider door open
for collateral-order appeals brought by nonparties, or if
the state agencies meant to invoke sovereign immunity
through their reference to “persons,” we would nonethe-
less reject their position on the merits. This court
reviews a district court’s order refusing to quash a sub-
Nos. 11-1541 & 11-1638 7
poena for abuse of discretion. United States v. Lloyd,
71 F.3d 1256, 1268 (7th Cir. 1995). We review the
district court’s interpretation of Rule 45 de novo.
Pickett v. Sheridan Health Care Ctr., 610 F.3d 434, 440 (7th
Cir. 2010).
Rule 45 establishes the proper procedure for issuing
subpoenas. Relevant to this appeal, it requires the sub-
poena to “command each person to whom it is directed
to do [certain things].” FED. R. C IV. P. 45(a)(1)(A)(iii)
(emphasis added). Similarly, Rule 45(c) is titled, “Pro-
tecting a Person Subject to a Subpoena.” The state
agencies argue that they are not “persons” subject to
subpoenas under Rule 45. The district court rejected
their argument, relying on the D.C. Circuit’s recent
opinion on this question.
The D.C. Circuit—the only court of appeals that
has considered this issue—held that a federal agency is
a “person” under Rule 45. Yousuf v. Samantar, 451 F.3d
248 (D.C. Cir. 2006). Overturning a district court decision
to the contrary, the court of appeals initially rejected
the district court’s use of the presumption that the
federal government is not a “person” within Rule 45.
Citing Nardone v. United States, 302 U.S. 379 (1937), it
recalled that the government at common law was pre-
sumed not to be a statutory “person” in two situations:
“(1) where the statute, if not so limited, would deprive
the sovereign of a recognized or established prerogative
title or interest, such as a statute of limitations; and
(2) where deeming the Government a person would
work obvious absurdity as, for example, the application
8 Nos. 11-1541 & 11-1638
of a speed law to a policeman pursuing a criminal or
the driver of a fire engine responding to an alarm.” Yousuf,
415 F.3d at 254 (internal quotations omitted). The court
found neither situation applicable to Rule 45, particularly
because the federal government lacks an “established
prerogative” to be free from subpoenas. Id. The court
then went on to conclude that the term “persons” used
elsewhere in the Federal Rules of Civil Procedure con-
templates the inclusion of the government. Id. at 255-56.
The question remains whether the holding and
reasoning of Yousuf may be extended to state agencies.
The first question is whether Rule 45 implicates state
interests that would trigger a Nardone presumption.
We think not: we can think of no “established prerogative”
of the Wisconsin Crime Laboratory or the Wisconsin
Department of Corrections that would be imperiled by
the application of Rule 45 to either one. Ott could have
demanded the same documents by issuing a subpoena
to the correct employee in each agency, as the agencies
admit in their brief. No state sovereign immunity issues
are triggered by this subpoena because no ultimate relief
is being sought from them. In addition, there is no
reason to believe that the application of Rule 45 would
work an “obvious absurdity,” especially since Ott could
have obtained the same documents with a minor
change in the addressee of the subpoena.
With the Nardone presumption out of the way, the next
issue to examine is whether the interpretation used in
Yousuf for an agency of the United States applies with
equal force to state agencies. We have previously held
Nos. 11-1541 & 11-1638 9
that states and state agencies qualify as “persons”
under the other civil procedure rules. Tillman v. City of
Milwaukee, 715 F.2d 354 (7th Cir. 1983) (Wisconsin agency
was a “person” within Federal Rule of Civil Procedure
19(a) as a required party); United States v. Illinois, 454
F.2d 297 (7th Cir. 1971) (the State of Illinois was a “per-
son” within Federal Rule of Civil Procedure 14). There
is no reason to refrain from applying the holdings in
Illinois and Tillman to Rule 45. The Supreme Court has
determined that whether a governmental entity qualifies
as a “person” is dependent on the rule’s “legislative
environment.” Sims v. United States, 359 U.S. 108, 112
(1959). As we have noted, “[A]lthough a statute may not
expressly mention States among those it includes, it may
become ‘equally clear that it does not exclude them.’ ”
Illinois, 454 F.2d at 301, quoting Sims, 359 U.S. at 112. The
history and purpose of Rule 45 indicates no legislative
intent to exclude states from the subpoena power of the
federal courts. 9C C HARLES A LAN W RIGHT ET AL., F EDERAL
P RACTICE AND P ROCEDURE § 2451, at 383 (3d ed. 2008).
On the record before us, therefore, it appears that the
state agencies are subject to the district court’s subpoena
power under Rule 45.
B
The state agencies do not dispute that they received
the subpoenas via certified mail. They argue, however,
that the subpoenas must be quashed as a matter of law
because they read Rule 45(b)(1) to prohibit service by
certified mail. In fact, as a quick examination of the lan-
guage of the Rule reveals, it never says that, but we
10 Nos. 11-1541 & 11-1638
proceed on the assumption that the agencies really mean
to argue for an implicit ban on this method of service.
Here is what the Rule says:
Any person who is at least 18 years old and not a
party may serve a subpoena. Serving a subpoena
requires delivering a copy to the named person and, if
the subpoena requires that person’s attendance,
tendering the fees for 1 day’s attendance and the
mileage allowed by law.
Many courts have interpreted this language (and its
predecessors before the 2007 restyling of the rules)
literally to require nothing short of personal service.
In re Dennis, 330 F.3d 696, 704-05 (5th Cir. 2003). But
the first question is personal service by whom? An agent
of the postal service surely qualifies as a “person at least
18 years of age and not a party.” And certified mail is
a service that provides the sender with a mailing
receipt; the Post Office also maintains a proof-of-delivery
record with a copy of the recipient’s signature for two
years from the date of mailing. USPS, Frequently Asked
Questions, http://faq.usps.com/ (last visited May 23,
2012). We see no reason to inflate the costs of litigation
by ruling out this sensible option for serving a sub-
poena (along with the necessary fees) and requiring
parties to hire a second person for service, at least in the
absence of any language in the Rule that compels such
a result.
Our conclusion is reinforced by a quick comparison
of the language in Rule 45(b)(1) with that in Rule 4(e),
which specifies various ways in which an individual
Nos. 11-1541 & 11-1638 11
within a judicial district of the United States may be
served with a summons. Those methods include “de-
livering a copy of the summons and of the complaint to
the individual personally.” F ED. R. C IV. P. 4(e)(2)(A) (em-
phasis added). Ott persuasively argues that the use of
the word “personally” in that part of Rule 4 would be
“pure surplusage” if Rule 45(b) were interpreted to
require personal delivery by a specially designated agent.
C
The state agencies’ final argument is that the dis-
trict court erred in finding that they waived all
substantive objections to the subpoenas. They note that
their motion to quash included an express reservation
of the right to assert substantive objections if the
motion failed on procedural grounds. The district court
found the objections untimely. The state agencies
complain that this was improper, despite the fact that
the district court had already granted them additional
time.
The question for us is whether a cursory reservation
of the right to assert substantive objections later is suffi-
cient to preserve those arguments. Critically, the state
agencies even now have not revealed what specific
“substantive objections” they are talking about. If they
are referring to privilege arguments, they are too late:
Rule 45(d)(2) says that “[a] person withholding subpoe-
naed information under a claim that it is privileged or
subject to protection as trial-preparation material must
expressly make the claim; and describe the nature of
the withheld documents . . . in a manner that, without
12 Nos. 11-1541 & 11-1638
revealing information itself privileged or protected,
will enable the parties to assess the claim.” The state
agencies’ brief and broad reservation of rights is insuffi-
cient to satisfy this requirement. Even if they are
referring to other arguments, the district court was
entitled to draw the line where it did. The Second
Circuit has noted that Rule 45 “require[s] the recipient
of a subpoena to raise all objections at once, rather than
in staggered batches, so that discovery does not become
a ‘game.’ ” In re DG Acquisition Corp., 151 F.3d 75, 81 (2d
Cir. 1998), quoting United States v. Bryan, 339 U.S. 323,
331 (1950). That is why Rule 45(c)(2)(B) requires the
objecting party to raise its objection before “the earlier
of the time specified for compliance or 14 days after
the subpoena is served.” The state agencies have not
offered any reason for failing to spell out all of their
objections in their initial or amended motion to quash.
IV
We conclude that we lack jurisdiction to rule on the
state agencies’ appeal. Moreover, even if Mohawk
Industries or another theory would permit the appeal, we
would find that the state agencies’ arguments lack
merit. We therefore D ISMISS the appeal for want of juris-
diction.
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