Hill v. MacMillan/McGraw-Hill School Co.

Citation102 F.3d 422
Decision Date11 December 1996
Docket NumberNo. 95-16163,GRAW-HILL,95-16163
Parties, 96 Cal. Daily Op. Serv. 8929, 96 Daily Journal D.A.R. 14,961 Judith A. HILL, Plaintiff-Appellee, v. MacMILLAN/McSCHOOL COMPANY, a New York general partnership, aka MacMillan School Publishing, Inc., dba McGraw-Hill, Inc.; Peter Jovanovich, Defendants-Appellants.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

Stuart M. Gerson, Washington, DC, and Terry M. Gordon, San Francisco, CA, Epstein Becker & Green, for defendants-appellants.

Daniel R. Bartley, Larkspur, CA, for plaintiff-appellee.

Appeal from the United States District Court for the Northern District of California, Robert P. Aguilar, District Judge, Presiding. D.C. No. CV-93-20824-RPA.

Before GOODWIN, WALLACE and RYMER, Circuit Judges.

RYMER, Circuit Judge.

MacMillan/McGraw-Hill School Company, Peter Jovanovich, and their attorneys, Terry M. Gordon and Janet Morgan, appeal the district court's order imposing sanctions against them jointly and severally under Fed.R.Civ.P. 11 for refiling a Rule 8 motion to dismiss that had previously been denied by a different judge. We do not reach the merits of their appeal, however, because an order sanctioning both a party and its attorney is not a collateral order that is reviewable before final judgment is entered. We therefore lack jurisdiction and dismiss the appeal.

I

On September 23, 1993, Judith Hill brought a wrongful termination action in state court against her former employer, MacMillan/McGraw-Hill School Company. MacMillan removed the case to federal court, where it was assigned to Judge Ware, and filed a motion to dismiss under Rule 8 for failure to set forth "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2). Judge Ware granted the motion and Hill filed an amended complaint, correcting various erroneous citations to the California Code and replacing her claim of "constructive termination" with one of "direct termination." MacMillan responded with a second motion to dismiss, contending that even as amended the complaint failed to meet the requirements of Rule 8. Judge Ware denied the motion and MacMillan filed an answer.

After the case was reassigned to Judge Aguilar, Hill asked MacMillan to stipulate that she could correct a typographical error (changing the word "mole" to "moll") in the amended complaint. MacMillan refused. The court nevertheless granted Hill leave to file a second amended complaint to correct the typographical error.

MacMillan, in turn, filed a third motion to dismiss under Rule 8 that was virtually identical to the one denied by Judge Ware. When the court questioned why sanctions should not be imposed for doing so, MacMillan argued that renewing the same motion was proper because the action had been transferred to a new judge and the court had implicitly invited the motion by indicating that denial of the Rule 8 motion was without prejudice to MacMillan's filing responsive pleadings. Hill then moved for Rule 11 sanctions. The court found that the third Rule 8 motion had been filed with an improper purpose, and ordered MacMillan and its counsel, Gordon and Morgan, to pay $3,827.45 in attorneys' fees and costs to Daniel Robert Bartley, Hill's lawyer. Because the sanction was above $1,000, Gordon and Morgan were required under Cal.Bus. & Prof.Code § 6068(o)(3) to report the sanction to the California State Bar. MacMillan, and Gordon and Morgan, filed a notice of appeal from the sanctions order alone.

II

MacMillan, Gordon and Morgan argue that the sanctions order is a collateral order over which we have jurisdiction under Riverhead Savings Bank v. National Mortgage Equity Corp., 893 F.2d 1109, 1113-14 (9th Cir.1990), because the order is immediately payable resolves an important issue separate from the merits, and cannot be reviewed as it is payable to a non-party. Hill contends that we lack jurisdiction since an order imposing sanctions upon both a party and its attorneys is not a final order under Kordich v. Marine Clerks Ass'n, 715 F.2d 1392, 1393 (9th Cir.1983). We agree with Hill that this is a Kordich order, and that it does not meet the limited exception recognized in Riverhead when the party to whom the sanctions are awarded is (or is about to become) insolvent.

In Kordich, sanctions were jointly and severally imposed on a law firm and its clients for filing a frivolous motion. We had previously held that an order which imposes liability only on a non-party is immediately appealable as a final order, whereas an order that runs only to the party is not. Id. (contrasting Reygo Pacific Corp. v. Johnston Pump Co., 680 F.2d 647 (9th Cir.1982) (non-party) with Johnny Pflocks, Inc. v. Firestone Tire & Rubber Co., 634 F.2d 1215 (9th Cir.1980) (party)). Because the congruence of interests between attorney and client is so great, we saw "no reason to permit indirectly through the attorney's appeal what the client could not achieve directly on its own: immediate review of interlocutory orders imposing liability for fees and costs." Id. Such orders are reviewable on appeal after final judgment, and we accordingly held that we lacked jurisdiction.

Sanctions were also imposed jointly and severally on the party and its attorneys in Riverhead, but we distinguished Kordich because on the specific facts of Riverhead there was no chance that the award would be modified or merged into a final judgment. Riverhead, 893 F.2d at 1114. We concluded that...

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4 cases
  • Cordoza v. Pacific States Steel Corp.
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • February 20, 2003
    ...that rights under public law are more likely to meet the importance requirement than contract rights); Hill v. MacMillan/McGraw Hill Sch. Co., 102 F.3d 422, 425 (9th Cir.1996) (limiting Riverhead to its Finally, the orders are not appealable under Cohen's third requirement because they can ......
  • K.V. Mart Co. v. United Food and Commercial Workers Intern. Union, Local 324
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • April 14, 1999
    ...(b) (emphasis added). The union bases its argument on the emphasized language of § 301(b).2 Plaintiffs, citing Hill v. MacMillan/McGraw-Hill Sch. Co., 102 F.3d 422 (9th Cir.1996), and Kordich v. Marine Clerks Ass'n, 715 F.2d 1392 (9th Cir.1983), argue that we lack jurisdiction to review the......
  • Mount Hope Church v. Bash Back!
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • November 26, 2012
    ...sanctions on a party during the course of an ongoing civil action is not normally an appealable order, Hill v. MacMillan/McGraw–Hill Sch. Co., 102 F.3d 422, 424 (9th Cir.1996), when the sanction order follows the final resolution on the merits and there is no ongoing adversarial proceeding,......
  • Nat'l Abortion Fed'n v. Ctr. for Med. Progress
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • June 5, 2019
    ...of final judgment to obtain review of the contempt sanctions imposed against them, just as Daleiden and CMP are required to do. See Hill , 102 F.3d at 424–25 ; Kordich , 715 F.2d at 1393.Cooley and Ferreira contend that our past cases dismissing appeals by non-party attorneys held in contem......

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