Eladio Cruz v. Tracy Fulton

Case: 17-30134 Document: 00514294464 Page: 1 Date Filed: 01/04/2018
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 17-30134 FILED
January 4, 2018
Lyle W. Cayce
ELADIO CRUZ, Individually and on Behalf of his Minor Child, Clerk
Plaintiff
v.
TRACY FULTON,
Defendant - Appellee
v.
LOUIS R. KOERNER,
Movant - Appellant
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:14-CV-2015
Before STEWART, Chief Judge, and JOLLY and OWEN, Circuit Judges.
PER CURIAM:*
In a contempt order against counsel in the underlying litigation, the
district court ordered Louis R. Koerner, plaintiff’s lead counsel, “to pay all of
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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No. 17-30134
the fees, costs, and expenses incurred by the defendant, Tracy Fulton, from
September 3, 2014 up to September 28, 2016,” holding him in “in civil contempt
of Court, in violation of 28 U.S.C. § 1927 and Rule 11 of Federal Rules of Civil
Procedure.” The district court then administratively closed the case until
Koerner complied. Koerner seeks appellate review of that order. Koerner is
unhappy that the district court retired his case to the administrative files until
he satisfies the monetary fees imposed on him, and he urges us to assert
appellate jurisdiction over the contempt order and reverse the district court.
On the other hand, Tracy Fulton, the defendant, is quite content to leave
matters as they stand and consequently urges that we have no appellate
jurisdiction to review the non-final order. Because the district court did not
quantify the sanction to a sum certain, we hold that we do not have appellate
jurisdiction over this particular order of contempt and thus dismiss this appeal.
I.
In determining appellate jurisdiction to review this contempt order, we
begin with the premise that this court has jurisdiction to review final decisions
of the district court under 28 U.S.C. § 1291. Askanase v. Livingwell, Inc., 981
F.2d 807, 809 (5th Cir. 1993). Furthermore, a civil-contempt order against a
party is not a final order and is not immediately appealable, Fox v. Capital Co.,
299 U.S. 105, 107–08 (1936), but “[t]he right of a nonparty to appeal an
adjudication of contempt cannot be questioned” under § 1291, U.S. Catholic
Conference v. Abortion Rights Mobilization, Inc., 487 U.S. 72, 76 (1988)
(emphasis added). 1 “On the other hand, an adjudication of criminal contempt
1 See also Port Drum Co. v. Umphrey, 852 F.2d 148, 150 n.2 (5th Cir. 1988); Petroleos
Mexicanos v. Crawford Enters., Inc., 826 F.2d 392, 398 (5th Cir. 1987); Thyssen, Inc. v. S/S
Chuen On, 693 F.2d 1171, 1173 n.2 (5th Cir. 1982); ITT Cmty. Dev. Corp. v. Barton, 569 F.2d
1351, 1352 n.1 (5th Cir. 1978); Sanders v. Monsanto Co., 574 F.2d 198, 199 (5th Cir. 1978);
S.E.C. v. Amerifirst Funding, Inc., No. 3:07-CV-1188-D, 2008 WL 5191896, at *4 (N.D. Tex.
Dec. 11, 2008).
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is a final judgment and the contemnor, whether a party or non-party, may
obtain immediate review by appeal.” S. Ry. Co. v. Lanham, 403 F.2d 119, 124
(5th Cir. 1968) (emphasis added) (citing Union Tool Co. v. Wilson, 259 U.S. 107
(1922)). See generally 15B Charles Alan Wright & Arthur R. Miller, Federal
Practice and Procedure § 3917 (2d ed.) (“Final contempt adjudications,
imposing sanctions, are deemed appealable as final decisions in all situations
other than that of civil contempt against a party to a pending proceeding.”).
It is clear that the sanctions here are against a nonparty, although
labeled by the district court as civil in nature. Fulton contends that,
notwithstanding whether Koerner is a nonparty or whether the contempt order
is criminal, the instant contempt order is not a final reviewable order because
the sanctions have not been assessed in a dollar amount. See Thornton v. Gen.
Motors Corp., 136 F.3d 450, 453 (5th Cir. 1998) (“Normally, an unquantified
award of attorney’s fees does not constitute a final appealable order pursuant
to 28 U.S.C. § 1291.”); S. Travel Club, Inc. v. Carnival Air Lines, Inc., 986 F.2d
125, 131 (5th Cir. 1993) (“[A]n order awarding attorney’s fees or costs is not
reviewable on appeal until the award is reduced to a sum certain.”). On the
record before us, we agree that the failure to quantify the award bars our
jurisdiction to review the order. Future disputes on the fees are likely,
requiring district court involvement to decide the reasonableness of Fulton’s
fees in this contentious litigation. So exercising jurisdiction now surely risks
a second appeal of the same order. For these reasons, the instant contempt
order does not yet constitute a final appealable order pursuant to § 1291.
Nevertheless, Koerner offers two arguments that the lack of a sum
certain in this appeal does not bar appellate jurisdiction. First, although
acknowledging that the dollar amount of sanctions has not been determined,
he points to Local Rules 54.2 and 54.3 and argues that Fulton failed timely to
move for attorney’s fees and to certify any costs, thus denying the procedural
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authority of the district court to calculate a sum certain pursuant to an
untimely motion. First, this argument ignores that “[c]ourts have broad
discretion in interpreting and applying their own local rules.” Colonial Freight
Sys., Inc. v. Adams & Reese, LLP., No. 11-1755, 2013 WL 453203, at *1 (E.D.
La. Feb. 4, 2013) (quoting In re Matter of Adams, 734 F.3d 1094, 1102 (5th Cir.
1984)). But even assuming that the language of such local rules is pliable
enough to fit this case, it is clear that Local Rule 54.2 applies where a party
seeks attorney’s fees after judgment, and that Local Rule 54.3 comes into play
where judgment is entered for a party who is allowed costs. To the point,
neither Rule is applicable here.
Second, Koerner says that the contempt order is appealable as a
collateral order, meaning that the order “(1) conclusively determined the
disputed question; (2) resolved an important issue separate from the merits of
the case; and (3) is effectively unreviewable on appeal from a final judgment.”
In re Deepwater Horizon, 793 F.3d 479, 484 (5th Cir. 2015). We initially note
that the Supreme Court “ha[s] consistently eschewed a case-by-case approach
to deciding whether an order is sufficiently collateral.” Cunningham v.
Hamilton Cty., 527 U.S. 198, 206 (1999); see also Digital Equip. Corp. v.
Desktop Direct, Inc., 511 U.S. 863, 868 (1994) (“[T]he issue of appealability
under § 1291 is to be determined for the entire category to which a claim
belongs . . . .”).
As we have explained above, irrespective of the collateral-order doctrine,
contempt orders are considered under their own regime and, in some cases, can
be immediately reviewable or, in other cases, reviewable only from a final
judgment in the underlying litigation. In short, this claim belongs in the
category of contempt orders. See, e.g., A-Mark Auction Galleries, Inc. v. Am.
Numismatic Ass’n, 233 F.3d 895, 899 (5th Cir. 2000) (holding that discovery
orders are not appealable under the collateral-order doctrine because the
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subject of the order “may resist that order, be cited for contempt, and then
challenge the propriety of the discovery order in the course of appealing the
contempt citation”). And even if we concluded that the collateral-order
doctrine was applicable to the instant order, we would not assert jurisdiction.
The order must conclusively determine the disputed question, and here, the
dollar amount of contempt sanctions remains yet to be determined. There is
still work for the district court to do in connection with the order before us.
II.
In sum, we lack appellate jurisdiction over the contempt order at issue
because the fees and costs awarded have not yet been determined. We make
no suggestion about our jurisdiction once the monetary sanction has been
resolved. Fulton’s Rule 38 motion for damages and costs is denied. This appeal
is
DISMISSED.
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