Chris Collins v. Doe Run Resources Corporation ( 2023 )

United States Court of Appeals
For the Eighth Circuit
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No. 22-1848
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Chris Collins, as Next Friend of: J.Y.C.C.; I.K.C.C.; E.A.C.C.; E.L.C.C.;
A.R.C.C.; J.R.G.; F.R.A.; R.F.R.C.; S.S.L.; R.D.L.C.; G.N.A.A.; H.G.A.L.;
A.X.E.A.; M.Z.A.B.; A.Y.A.G.; I.D.A.A.; J.D.A.E.; Y.D.T.; E.J.D.L.C.D.;
N.G.C.V.; Y.G.C.F.; C.P.C.F.; Y.Y.C.G.; K.A.C.G.; C.F.C.P.; J.A.C.A.; C.L.B.F.;
J.C.Z.P.; F.A.Z.P.; S.L.W.B.; L.R.V.P.; J.N.V.P.; J.E.V.P.; R.W.U.T.; A.S.T.C.;
M.A.S.S.; C.L.S.S.; J.Y.S.O.; K.LR.O.; A.S.R.A.; A.A.R.A.; L.A.R.A.; R.M.R.C.;
D.R.Q.L.; Y.Q.L.; J.A.Q.A.; N.Y.P.A.; L.Y.P.A.; D.Y.P.A.; V.O.M.; K.M.P.;
E.M.P.; A.M.P.; M.M.F.; B.L.L.A.; A.L.S.; J.H.L.A.; Y.M.J.C.; Y.S.J.C.;
A.B.E.I.F.; B.Y.I.R.; M.I.J.; X.N.G.G.; Z.Y.F.M.; Y.S.E.A.; J.J.E.A.; R.G.E.A.;
Y.B.E.B.; C.E.Y.; J.A.E.S.; M.E.A.B.; A.H.A.B.; E.S.A.G.; K.G.A.A.; J.A.A.;
J.D.A.F.; I.S.A.B.; J.F.D.T.; R.M.D.T.; D.S.C.V; A.M.C.F.; R.F.C.Y.; K.L.C.P.;
A.L.C.Y.; W.M.B.F.
Plaintiffs - Appellees
v.
Doe Run Resources Corporation
Defendant - Appellant
D. R. Acquisition Corporation; Marvin K. Kaiser; Theodore P. Fox, III; Jerry
Pyatt; Jeffrey L. Zelms; Renco Holdings
Defendants
The Renco Group
Defendant - Appellant
Ira L. Rennert
Defendant
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Appeal from United States District Court
for the Eastern District of Missouri - St. Louis
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Submitted: January 12, 2023
Filed: April 12, 2023
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Before GRUENDER, BENTON, and SHEPHERD, Circuit Judges.
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GRUENDER, Circuit Judge.
Doe Run Resources Corporation and the Renco Group appeal the district
court’s1 grant of the plaintiffs’ emergency motion for a protective order. We dismiss
for lack of jurisdiction.
I.
The plaintiffs, thousands of Peruvian citizens, allege injury from Doe Run’s
lead-mining and smelting complex in La Oroya, Peru. Doe Run, based in St. Louis,
Missouri, has operated the complex since 1997. The Renco Group owns Doe Run.
The plaintiffs allege that more than ninety-nine percent of children born in La Oroya
since 2005 have had lead poisoning.
The plaintiffs sued in Missouri state court, and the defendants removed the
case to the United States District Court for the Eastern District of Missouri. The
1
The Honorable Rodney W. Sippel, United States District Judge for the
Eastern District of Missouri.
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plaintiffs also brought similar cases in the same district, all of which were
consolidated for pretrial matters. In the consolidated case, the parties identified a
small sample of plaintiffs whose cases would be tried first (the “trial-pool
plaintiffs”).
In October 2021, the defendants submitted a report to the district court about
allegedly fraudulent conduct by two former “plaintiff recruiters” in Peru. The report
noted that the defendants had hired Peruvian counsel to report the fraud to Peruvian
law enforcement. Consequently, Peruvian authorities opened an investigation.
Under Peruvian law, because the defendants reported the crime, they could suggest
witnesses for Peruvian prosecutors to interview and they could attend the interviews.
To support their fraud allegations, the defendants sought certain discovery in
this case. They proposed a verification procedure for all plaintiffs, requested the
appointment of a special master to investigate fraud, and sought discovery from a
non-trial-pool plaintiff about his relationship with plaintiffs’ counsel. The plaintiffs
opposed these efforts; they proposed a more targeted means to test the impact of the
alleged fraud and filed for a protective order to bar the defendants from obtaining
discovery from the non-trial-pool plaintiff. The plaintiffs also filed an emergency
motion for a protective order to prohibit the defendants’ Peruvian counsel from
participating in witness interviews in the Peruvian criminal investigation, claiming
that it would be impermissible ex parte communication. See Mo. R. Prof. Conduct
4-4.2. In one sweeping order, the district court denied the defendants’ requests and
granted the plaintiffs’ requested protective orders. The order did not provide the
reasons for granting the emergency motion. Yet in a prior hearing where the motion
was discussed, the district court said, “To the extent that there are . . . current
plaintiffs and clients, obviously [the defendants’] counsel and any of [the
defendants’] agents cannot participate. . . . If they are an active client, I don’t want
[defendants’ Peruvian counsel] in the room when they are interviewed by
prosecutors or law enforcement.” The defendants appeal the grant of the plaintiffs’
emergency motion for a protective order.
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After appealing, the defendants moved to stay the protective order pending
appeal. The court denied the motion because it did not want the defendants to talk
directly with plaintiffs through the Peruvian criminal witness interviews about a
subject related to the litigation—fraud. It explained that the “criminal investigation
is directed at issues that are inextricably intertwined with the discovery issues before
this Court in this matter” and “[t]he information Defendants’ Peruvian counsel gains
from their participation in interviewing plaintiffs in this investigation . . . could not
be obtained by Defendants’ counsel in this case.”
In this court, the plaintiffs then filed a motion to dismiss the appeal for lack
of jurisdiction. But after the plaintiffs filed their merits brief, they moved to
withdraw their motion to dismiss, conceding that we have jurisdiction under 28
U.S.C. § 1292(a)(1).
Meanwhile, the defendants have filed actions in other courts related to their
fraud allegations. In the Southern District of Florida, the defendants filed a 28
U.S.C. § 1782 application to take discovery, seeking materials to aid the ongoing
fraud investigation in Peru. In Florida state court, the defendants brought malicious-
prosecution and negligent-supervision claims against two former plaintiff recruiters,
alleging that they fabricated evidence supporting some of the claims in the Missouri
cases.
II.
Before reaching the merits, we must independently determine whether we
have jurisdiction, even though the parties now agree that we do. See City of Kansas
City v. Yarco Co., 625 F.3d 1038, 1040 (8th Cir. 2010). The protective order does
not itself resolve the case, see 28 U.S.C. § 1291, but the parties argue that we have
jurisdiction under either the collateral order doctrine or § 1292(a)(1). We disagree.
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A.
We first address the collateral order doctrine. Generally, appellate courts have
jurisdiction “of appeals from all final decisions of the district courts of the United
States.” § 1291. Under the collateral order doctrine, “final decisions” includes a
“small class of rulings, not concluding the litigation, but conclusively resolving
claims of right separable from, and collateral to, rights asserted in the action.” Will
v. Hallock, 546 U.S. 345, 349 (2006) (internal quotation marks omitted). We have
jurisdiction to review a collateral order if it (1) “conclusively determine[s] the
disputed question,” (2) “resolve[s] an important issue completely separate from the
merits of the action,” and (3) is “effectively unreviewable on appeal from a final
injunction.” Gulfstream Aerospace Corp. v. Mayacamas Corp., 485 U.S. 271, 276
(1988). The collateral order doctrine is narrow. Mohawk Indus., Inc. v. Carpenter,
558 U.S. 100, 113 (2009); Digital Equip. Corp. v. Desktop Direct, Inc., 511 U.S.
863, 868 (1994) (“[W]e have . . . repeatedly stressed that the ‘narrow’ exception
should stay that way and never be allowed to swallow the general rule . . . .”). “That
a ruling may burden litigants in ways that are only imperfectly reparable by appellate
reversal of a final district court judgment has never sufficed.” Mohawk, 558 U.S. at
107 (ellipsis and internal quotation marks omitted). “Instead, the decisive
consideration is whether delaying review until the entry of final judgment would
imperil a substantial public interest or some particular value of a high order.” Id.(internal quotation marks omitted).
Our jurisdictional inquiry under the collateral order doctrine looks beyond the
particular order being appealed and focuses instead on the class of claims that the
challenged order resolves. Id. at 107; see Digital Equip., 511 U.S. at 868. “As long
as the class of claims, taken as a whole, can be adequately vindicated by other means,
the chance that the litigation at hand might be speeded, or a particular injustice
averted, does not provide a basis for jurisdiction under [the collateral order
doctrine].” Mohawk, 558 U.S. at 107 (brackets and internal quotation marks
omitted). So, for example, the Supreme Court has addressed whether orders denying
attorney-client privilege and orders rejecting the defense-of-judgment bar under 28
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U.S.C. § 2676 are collateral orders. See id. at 114 (evaluating orders denying
attorney-client privilege); Hallock, 546 U.S. at 355 (evaluating orders rejecting the
defense-of-judgment bar under 28 U.S.C. § 2676).
The Supreme Court has declined to extend the collateral order doctrine to
categories of orders affecting rights that can be adequately protected without an
immediate appeal. Pretrial discovery orders, for example, are generally not
immediately appealable because “in the rare case when appeal after final judgment
will not cure an erroneous discovery order, a party may defy the order, permit a
contempt citation to be entered against him, and challenge the order on direct appeal
of the contempt ruling.” Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 377
(1981). And orders denying attorney-client privilege are not immediately appealable
because litigants can petition for a writ of mandamus or ask the district court to
certify, and the appellate court to accept, an interlocutory appeal under 28 U.S.C.
§ 1292(b). Mohawk, 558 U.S. at 110-11.
Here, we must first determine how to classify the district court’s order. We
conclude that it is an order prohibiting ex parte communication. The plaintiffs’
emergency motion requested a “Protective Order to Prevent Ex Parte
Communication with Plaintiffs,” and the district court’s legal basis for granting the
motion was Missouri Rule of Professional Conduct 4-4.2. The defendants classify
the challenged order as prohibiting participation in a foreign law-enforcement
investigation. We disagree. True, the order prohibits the defendants’ Peruvian
counsel from attending witness interviews in a foreign law-enforcement
investigation. But the order does not prohibit the defendants from participating in
the investigation. Peruvian counsel can still present evidence to, suggest questions
for, and communicate with the prosecutor. Further, in a hearing where several
discovery issues were discussed, the district court explained that it did not want
defendants’ Peruvian counsel talking with current plaintiffs. And in its denial of the
motion to stay, the district court said it granted the emergency motion “to prevent
Defendants from using a criminal investigation to have their lawyers communicate
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with current plaintiffs about the subject of this lawsuit.” 2 Thus, the challenged order
is properly classified as an order prohibiting ex parte communication with
represented parties.
Such orders are not effectively unreviewable on appeal from a final judgment,
so the collateral order doctrine does not apply here. That Peruvian law may allow
this communication and the right may be important does not mean that all orders
prohibiting ex parte communication are immediately appealable. See Mohawk, 558
U.S. at 108-09 (acknowledging the importance of attorney-client privilege but
nonetheless concluding that “postjudgment appeals generally suffice to protect the
rights of litigants and ensure the vitality of the attorney-client privilege”). As with
most pretrial discovery orders, a litigant ordered to refrain from ex parte
communication can seek other remedies that will sufficiently protect his rights. See,
e.g., Firestone Tire, 449 U.S. at 377-78 (holding that orders refusing to disqualify
counsel are not immediately appealable because there is usually an adequate remedy
after final judgment—the court of appeals can vacate the judgment and order a new
trial). When prohibited from engaging in an ex parte communication, a litigant can,
as in Mohawk, appeal the order after final judgment, request certification of an
interlocutory appeal under 28 U.S.C. § 1292(b), petition the appellate court for a writ
of mandamus, or defy the order and incur sanctions, which may be immediately
appealable if a criminal-contempt order is issued. See 558 U.S. at 101, 108-11(“Alternatively, when the circumstances warrant, a district court may issue a
contempt order against a noncomplying party, who can then appeal directly from
that ruling, at least when the contempt citation can be characterized as a criminal
punishment.”); cf. Good Stewardship Christian Ctr. v. Empire Bank, 341 F.3d 794,
2
Moreover, the defendants’ classification of the challenged order is too
narrow, “amount[ing] to an ‘individualized jurisdictional inquiry’ largely based on
the facts of the case, which is prohibited.” See Nice v. L-3 Commc’ns Vertex
Aerospace LLC, 885 F.3d 1308, 1312 n.5 (11th Cir. 2018) (per curiam) (quoting
Mohawk, 558 U.S. at 107); see also Leonard v. Martin, 38 F.4th 481, 488 (5th Cir.
2022) (explaining that “the class of orders should be defined at a higher level of
generality”).
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795-96 (8th Cir. 2003) (describing how the district court imposed sanctions for the
defiance of a protective order issued after improper ex parte communications); Hill
v. St. Louis Univ., 123 F.3d 1114, 1117 (8th Cir. 1997) (explaining that the district
court ordered various sanctions when counsel engaged in ex parte communication
with a represented adverse party despite warnings not to); Weeks v. Indep. Sch. Dist.
No. I-89, 230 F.3d 1201, 1206, 1208 (10th Cir. 2000) (reviewing after final judgment
the district court’s order disqualifying an attorney for engaging in an ex parte
communication).
The defendants argue that the harm caused by this specific challenged order
cannot be remedied after final judgment because the error impacts a foreign
proceeding. But the question under the collateral order doctrine is not whether a
specific order is effectively unreviewable on appeal from a final judgment; rather, it
is whether the class of claims as a whole is effectively unreviewable on appeal from
a final judgment. See Gulfstream, 485 U.S. at 276. We already concluded that, in
general, orders prohibiting ex parte communication are not effectively unreviewable
on appeal from a final judgment. And even if the challenged order here caused harm
that could not be remedied after final judgment, the defendants have remedies other
than appealing after final judgment that they can pursue now: ask the district court
to certify an interlocutory appeal under § 1292(b), petition us for a writ of
mandamus, or defy the order and incur sanctions (even though sanctions may not be
immediately appealable). See Mohawk, 558 U.S. at 101; Cunningham v. Hamilton
Cnty., 527 U.S. 198, 210 (1999) (holding that a sanctions order imposed solely on
an attorney is not immediately appealable). “Although there may be situations in
which a party will be irreparably damaged if forced to wait until final resolution of
the underlying litigation before securing review of [a specific] order . . . , it is not
necessary, in order to resolve those situations, to create a general rule permitting the
appeal of all such orders.” Firestone, 449 U.S. at 379 n.13 (explaining that if a
specific order within the larger class of claims is effectively unreviewable absent
immediate appeal, the moving party can seek a narrower order, ask the district court
to reconsider, request the issue to be certified for interlocutory appeal, or ask for a
writ of mandamus).
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In sum, orders prohibiting ex parte communication are not effectively
unreviewable on appeal from final judgment. Thus, the defendants cannot appeal
the challenged order under the collateral order doctrine.
B.
Nor is the order appealable under § 1292(a)(1). Section 1292(a)(1) permits
appeals for interlocutory orders “granting, continuing, modifying, refusing or
dissolving injunctions.” It “provide[s] appellate jurisdiction over orders that grant
or deny injunctions and orders that have the practical effect of granting or denying
injunctions and have serious, perhaps irreparable, consequence.” Gulfstream, 485
U.S. at 287-88 (internal quotation marks omitted). Generally, discovery orders,
though “they have the form of an injunction (an order to do or not do something
. . .),” “are deemed not to be injunctions within the meaning of section 1292(a)(1).”
Allendale Mut. Ins. v. Bull Data Sys., Inc., 32 F.3d 1175, 1176-77 (7th Cir. 1994).
“In determining whether the district court acted specifically to grant injunctive
relief, we examine the language of the order, the grounds on which it rests, and the
circumstances in which it was entered.” Morgenstern v. Wilson, 29 F.3d 1291, 1295
(8th Cir. 1994) (brackets and internal quotation marks omitted). “An order has the
practical effect of an injunction for purposes of appeal if it is directed to one or more
of the parties, is coercive and equitable in nature, is enforceable by contempt, and
grants at least some of the relief that is sought in the litigation.” 19 James W. Moore
et al., Moore’s Federal Practice § 203.10[2][a] (3d ed. 2023); United States v.
Samueli, 582 F.3d 988, 993 (9th Cir. 2009); United States v. E-Gold, Ltd., 521 F.3d
411, 415 (D.C. Cir. 2008); DiTucci v. Bowser, 985 F.3d 804, 808-09 (10th Cir.
2021); see also Tenkku v. Normandy Bank, 218 F.3d 926, 927 (8th Cir. 2000)
(relying on 19 Moore’s Federal Practice § 203.10[6][a]).
Thus, to determine whether the challenged order is appealable under
§ 1292(a)(1), we must determine whether it grants or denies an injunction or has the
practical effect of granting or denying an injunction. See Morgenstern, 29 F.3d at
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1294. The defendants do not argue that the district court acted specifically to grant
or deny injunctive relief, see id. at 1295, and we agree the district court did not do
so because neither the plaintiffs’ motion nor the district court explicitly mentioned
injunctive relief. Instead, the defendants argue that the challenged order has the
effect of an anti-suit injunction and thus is appealable because it enjoins the
defendants’ Peruvian counsel from attending Peruvian law-enforcement interviews
of current plaintiffs. 3
But the defendants provide no legal support for the proposition that an order
that merely affects foreign proceedings—but does not enjoin a party from
participating in them—is immediately appealable under § 1292(a)(1). They argue
that the order is unlike a discovery or case-management order that could not be
appealed under § 1292(a)(1). They rely on language from the Supreme Court
stating, “An order by a federal court that relates only to the conduct or progress of
litigation before that court ordinarily is not considered an injunction and therefore is
not appealable under § 1292(a)(1).” Gulfstream, 485 U.S. at 279. But the inverse
is not necessarily true. Gulfstream does not state that an order that might not relate
only to the conduct or progress of litigation before the court is an injunction. See id.Absent additional legal support, we do not interpret Gulfstream to mean that an order
that merely affects a proceeding elsewhere is appealable under § 1292(a)(1).
Moreover, we doubt that the challenged order is unrelated to the conduct or
progress of litigation before the district court. According to the district court, the
Peruvian criminal investigation “is directed at issues that are inextricably intertwined
with the discovery issues before [the district court],” and the information obtained
3
The defendants do not argue that the challenged order is actually an anti-suit
injunction. Anti-suit injunctions involve the power of federal courts “to enjoin
persons subject to their jurisdiction from prosecuting foreign suits.” Goss Int’l Corp.
v. Man Roland Druckmaschinen Aktiengesellschaft, 491 F.3d 355, 359 (8th Cir.
2007). The challenged order is unlike an anti-suit injunction because it does not
prohibit the defendants from prosecuting any foreign suit—it only prohibits their
Peruvian counsel from attending witness interviews.
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from the witness interviews “could not be obtained by Defendants’ counsel in this
case.” That the prohibited communication would occur in a Peruvian criminal
investigation and not in the United States was immaterial to the district court; it was
concerned about whether the defendants were circumventing discovery rulings—a
matter relating to the conduct of litigation before the court.
Though the order is not appealable merely by virtue of its effect on a foreign
criminal investigation, it may nevertheless be appealable if it has the practical effect
of an injunction and has serious, irreparable consequences. See Gulfstream, 485
U.S. at 287-88. We conclude that the order does not have that effect. For one, it
does not “grant[] at least some of the relief that is sought in the litigation,” 19
Moore’s Federal Practice § 203.10[2][a], because the plaintiffs allege personal
injury from lead poisoning. Moreover, the defendants have not demonstrated that it
has serious, irreparable consequences. Id. at 1294. Indeed, in their response to the
motion to dismiss, the defendants do not explain how they are irreparably harmed
by their Peruvian counsel’s inability to attend the witness interviews. Even though
the defendants’ Peruvian counsel cannot attend witness interviews, the defendants
have continued to pursue their fraud theory in Missouri federal court and in the
Florida actions. We therefore lack jurisdiction over the challenged order under
§ 1292(a)(1).
III.
For the foregoing reasons, we grant the plaintiffs’ motion to dismiss for lack
of jurisdiction and deny the plaintiffs’ motion to withdraw their motion to dismiss
as moot.
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