Chad Barnes v. Kris Henry ( 2022 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS FEB 18 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
CHAD BARRY BARNES, No. 21-16120
Plaintiff-Appellant, D.C. No.
1:13-cv-00002-ACK-WRP
v.
KRIS HENRY; ALOHA OCEAN MEMORANDUM*
EXCURSIONS LLC,
Defendants-Appellees,
and
SEA HAWAII RAFTING, LLC; et al.,
Defendants.
Appeal from the United States District Court
for the District of Hawaii
Alan C. Kay, District Judge, Presiding
Submitted February 16, 2022**
Honolulu, Hawaii
Before: HAWKINS, R. NELSON, and FORREST, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Chad Barnes was injured when the vessel he was working on exploded.
Barnes has litigated various claims in admiralty against his employer at the time of
the injury, Sea Hawaii Rafting, LLC (“SHR”), and SHR’s sole member and owner,
Kris Henry. This appeal concerns three sanctions that the district court ordered after
finding that Henry fraudulently transferred a commercial-use permit held in SHR’s
name to a new business entity that he owned, Aloha Ocean Excursions, LLC
(“AOE”), to avoid Barnes’s collection efforts. The first sanctions order, issued in
2019, awarded Barnes $25,000 and required the commercial-use permit to be
transferred back to SHR. After Henry failed to transfer the commercial-use permit
back to SHR, the district court issued a second sanctions order in October 2020
awarding Barnes $40,000––the appraised value of the permit. Several months later,
the third sanctions order awarded Barnes $1,000, plus attorney fees and costs, after
Henry failed to make timely payments on the second sanctions order award.
Barnes appealed shortly after the third sanctions order. He raises several
issues both related and unrelated to the third sanctions order. Although Barnes
contends that interlocutory jurisdiction exists under 28 U.S.C. § 1292(a)(3), we lack
jurisdiction to consider any of his arguments.
1. Commercial-Use Permit. Barnes argues that the district court erred in
selling the commercial-use permit as part of its sanctions and finding that he agreed
to allow the commercial-use permit to remain permanently in AOE’s and Henry’s
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possession. The deadline to appeal under § 1292(a)(3) is 30 days from “any
judgment, order or decree.” 28 U.S.C. § 2107(a); see Barnes v. Sea Hawaii Rafting,
LLC, 889 F.3d 517, 528 (9th Cir. 2018). If a timely notice of appeal is not filed as to
a specific interlocutory order, we lack jurisdiction to decide issues stemming from
that order. United States v. Sadler, 480 F.3d 932, 937 (9th Cir. 2007). Barnes’s
arguments relating to the commercial-use permit stem from the second sanctions
order, which he did not timely appeal. We lack jurisdiction to consider these
arguments.
2. Discovery Sanctions. Barnes next argues that the district court erred in
denying his request for discovery-related sanctions. Section 1292(a)(3) provides
jurisdiction to review interlocutory orders that decide “rights and liabilities” that “are
substantive in nature,” such that they decide “the merits of the controversies between
[the parties],” not those that are “adjective, tactical, or procedural.” Rogers v. Alaska
S.S. Co., 249 F.2d 646, 649 (9th Cir. 1957) (citation omitted). In determining
whether a ruling decides the merits, we consider the “financial realities,” All Alaskan
Seafoods, Inc. v. M/V Sea Producer, 882 F.2d 425, 428 (9th Cir. 1989), as well as
other “practical matter[s],” Kesselring v. F/T Arctic Hero, 30 F.3d 1123, 1125 (9th
Cir. 1994). Because it is an exception to the final judgment rule, we construe
§ 1292(a)(3) “narrowly.” Sw. Marine Inc. v. Danzig, 217 F.3d 1128, 1136 (9th Cir.
2000). The third sanctions order imposed a $1,000 sanction, plus attorney fees and
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costs, because Henry and AOE failed to follow a court-ordered payment plan. The
third sanctions order did not define Barnes’s rights or liabilities, nor did it go to the
merits of his case. Rogers, 249 F.2d at 649. Thus, we lack interlocutory jurisdiction
over this order.
3. Constitutional Issues. Barnes’s final arguments ask us to consider
certain “Constitutional challenges” and “all related issues and appeals.” These
arguments have no relation to the appealed district court order and are beyond the
proper scope of this appeal. See Swint v. Chambers Cnty. Comm’n, 514 U.S. 35, 50
(1995) (recognizing that the scope of interlocutory jurisdiction is generally limited
to the “precise decision independently subject to appeal”). We lack jurisdiction to
decide these arguments.
DISMISSED.
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