Poliquin v. Libner

USCA1 Opinion

          November 15, 1994     [NOT FOR PUBLICATION] 
                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT


                                 ___________________


          No. 94-1399

                              RICHARD POLIQUIN, ET AL.,

                                Plaintiffs, Appellees,

                                          v.

                               GARDEN WAY INCORPORATED,

                                 Defendant, Appellee,
                              __________________________

                                  MAURICE A. LIBNER,
                                      Appellant.

                                  __________________

                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                              FOR THE DISTRICT OF MAINE

                       [Hon. Gene Carter, U.S. District Judge]
___________________

                                 ___________________

                                        Before

                               Torruella, Chief Judge,
___________
                                Boudin, Circuit Judge,
_____________
                             and Keeton,* District Judge.
______________

                                 ___________________

               Maurice  A. Libner  and McTeague,  Higbee, Libner,  MacAdam,
__________________      ____________________________________
          Case & Watson on brief for appellant.
_____________
               Ray E. Thompson, Jr., Glenn H. Robinson and Thompson & Bowie
____________________  _________________     ________________
          on brief for appellee, Garden Way Incorporated. 

                                  __________________

                                  __________________

          ___________________
          *Of the District of Massachusetts, sitting by designation.
















                 Per  Curiam.   Attorney  Maurice A.  Libner appeals  the
___________

            order of the United States District Court for the District of

            Maine, dated April 7, 1994.   The order grants the motions of

            appellee, Garden Way, for compliance with a previously issued

            protective  order and  for  sanctions for  violations of  the

            order.   It also orders Libner to undertake specific steps to

            comply  with  the previous  order.   We  dismiss for  lack of

            appellate jurisdiction.

                 This  court has jurisdiction  only over "final decisions

            of  the district  court."   28 U.S.C.    1291;   Willhauck v.
_________

            Halpin, 953 F.2d 689, 701 (1st  Cir. 1991).  A final decision
______

            is generally one that "leaves nothing for the court to do but

            execute the judgment."  Zayas-Green v. Casaine, 906 F.2d  18,
___________    _______

            21 (1st  Cir. 1990) (quoting  Van Cauwenberghe v.  Biard, 486
________________     _____

            U.S. 517, 521 (1988)).  

                 In  the  instant  case,  although  the   district  court

            determined that Libner had  violated the protective order and

            that   sanctions  were   appropriate,  sanctions   were  only

            "conditionally  granted,  subject  .   .  .  to  the  Court's
_______

            determination and  imposition of  an appropriate  sanction on

            Attorney  Libner."   Since  the  district  court has  yet  to

            determine what sanctions will be applied, the portion of  the

            order  imposing sanctions  upon Libner  for violation  of the

            previously issued protective order is not a final order.  See
___

            In re Tetracycline Cases,  927 F.2d 411, 413 (8th  Cir. 1991)
________________________



                                         -2-















            (finding  that  attorney was  in  contempt  for violation  of

            limited  appearance and protective  orders and that sanctions

            were appropriate was not  appealable final order since amount

            of sanctions yet to be determined).

                 Nor is the portion of  the order imposing obligations on

            Libner  yet appealable.  Discovery orders  are not in general

            appealable final orders.   In re Insurers Syndicate for Joint
__________________________________

            Underwriting,  etc., 864 F.2d 208, 210 (1st Cir. 1988); In re
__________________                                      _____

            Recticel  Foam Corp.,  859 F.2d  1000, 1002 (1st  Cir. 1988).
___________________

            Libner claims, however, that the order  in this case operates

            as an  injunction  and hence  is  appealable pursuant  to  28

            U.S.C.   1292(a)(1).  However, even if we were to assume that

            the April 7 order operates as an injunction, the order is not

            yet  appealable since Libner has failed to meet his burden of

            showing the order "might cause [him] irreparable consequences

            if  not immediately  reviewed."   Carson  v. American  Brands
______     ________________

            Inc.,  450 U.S. 79, 84  (1981); see also  In re Unanue-Casal,
___                             ___ ____  __________________

            998 F.2d 28, 32 (1st Cir. 1993) (citing cases).

                 This appeal is hence premature and must be dismissed for
_________

            lack of appellate jurisdiction.













                                         -3-