Starcher v. Correctional Medical Systems, Inc., 96-4250

• Decision Date: 21 May 1998
• Docket Number: No. 96-4250,96-4250
• Citation: 144 F.3d 418
• Parties: Darwin Lee STARCHER and Kathy Brown, Plaintiffs, Teresa Cunningham, Attorney-Appellant, v. CORRECTIONAL MEDICAL SYSTEMS, INC.; Hamilton County, Ohio; Simon Leis, individually and in his capacity as Sheriff; Sally Remilard; and Joseph Spriggs, Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 418

144 F.3d 418

41 Fed.R.Serv.3d 321

Darwin Lee STARCHER and Kathy Brown, Plaintiffs, Teresa Cunningham, Attorney-Appellant, v. CORRECTIONAL MEDICAL SYSTEMS, INC.; Hamilton County, Ohio;

Simon Leis, individually and in his capacity as

Sheriff; Sally Remilard; and Joseph

Spriggs, Defendants-Appellees.

No. 96-4250.

United States Court of Appeals, Sixth Circuit.

Argued Dec. 5, 1997.

Decided May 21, 1998.

Teresa L. Cunningham (argued and briefed), Cincinnati, OH, pro se.

Brian E. Hurley (briefed), Crabbe, Brown, Jones, Potts & Schmidt, Cincinnati, OH, for Medical Corrections Systems, Inc., Sally Remilard and Joseph Spriggs.

Philip L. Zorn, Jr. (argued and briefed), Hamilton County Prosecutor's Office, Cincinnati, OH, for Hamilton County, Ohio and Simon Leis.

Before: BOGGS, MOORE, and FARRIS, ^* Circuit Judges.

BOGGS, J., delivered the opinion of the court, in which FARRIS, J., joined. MOORE, J. (pp. 426-28), delivered a separate dissenting opinion.

OPINION

BOGGS, Circuit Judge.

Attorney Teresa Cunningham's appeal requires us to opine on an issue that has divided our sister circuits: whether an attorney who eventually withdraws or is disqualified from a case may take an immediate, interlocutory appeal from an order in that case levying attorney's fees and costs against her for discovery violations. We believe the better view to be that an attorney in these circumstances may not take an immediate appeal, but rather must wait to file an appeal until final judgment is entered in the case. Because we lack jurisdiction to entertain this interlocutory appeal, we cannot disturb the order assessing attorney's fees and costs against Cunningham.

I

On September 19, 1995, Cunningham (a sole practitioner) filed suit under 42 U.S.C. § 1983 against defendants Correctional Medical Systems, Inc. ("CMS"), two CMS employees, Hamilton County, Ohio, and the Hamilton County sheriff. The complaint Cunningham filed on behalf of plaintiff Darwin Lee Starcher alleged that the defendants negligently failed to supervise Starcher's son Casey, despite his known history of suicide attempts, and thus violated Casey's constitutional rights. Casey committed suicide while incarcerated in the Hamilton County jail.

In March 1996, the magistrate judge assigned to the case entered a scheduling order. The scheduling order required that the plaintiff designate experts by June 7, 1996, and that the defendants designate experts by July 19, 1996. It also set a discovery cut-off date of September 16, 1996, and a deadline of October 16, 1996, for filing dispositive motions. Cunningham's representation was fraught with difficulties even from the earliest days of this litigation. To begin with, it was apparent early in the case that Cunningham might be a material witness in the case because she spoke to a CMS official about Casey Starcher's psychiatric condition just a few days before Casey's suicide. For that reason, on four separate occasions the defendants moved to disqualify Cunningham as counsel. The magistrate judge denied the first three of these motions.

While she was opposing these motions to disqualify, Cunningham also managed to get into serious discovery trouble. The defendants served Cunningham with interrogatories and document requests on May 29, 1996. Under Fed.R.Civ.P. 33 and 34, Cunningham had 30 days to respond to these discovery requests. On June 7, 1996, however, Cunningham informed defense counsel that she could not respond to the discovery requests because Darwin Lee Starcher, the administrator of Casey Starcher's estate, had died. Efforts to resolve the matter informally were rebuffed by Cunningham, as evidenced by an exchange of letters between Cunningham and defense counsel. Because the defendants were under a court order to disclose their experts and expert materials by July 19, 1996, the defendants moved on July 1, 1996, to compel production of the plaintiff's written discovery. Cunningham was served with this motion on July 1.

On July 10, 1996--at which point the plaintiff's discovery responses were already 10 days overdue--the magistrate judge held a discovery conference to consider various pending discovery disputes, including the delinquency of the plaintiff's written discovery. At this conference, the magistrate judge ordered the plaintiff "by 4:00 p.m. on July 12, 1996 to make full and complete responses to the First Set of Interrogatories and Document Requests To Plaintiff." Further, the magistrate judge ordered the depositions of two witnesses for the plaintiff (Rex Smith and Roxanne Dieffenbach) and two defendants (Remilard and Spriggs) to take place on July 25, 1996, with the proviso that the depositions of the defendants would go forward only if the plaintiff had complied with written discovery obligations by July 12, 1996.

As things turned out, the plaintiff--or, more to the point, Cunningham--did not comply with either of these orders. With respect to the order to serve interrogatory responses by July 12, Cunningham responded merely with blanket objections, with incomplete responses, or, in some cases, with no response at all. As for Cunningham's response to the defendants' document requests, defendants argue that Cunningham produced no documents at all, and the record does not reflect any written response to the document requests such as would be required under Fed.R.Civ.P. 34(b). With respect to the magistrate judge's order that depositions take place on July 25, to the defendants' great consternation Cunningham noticed the deposition of Rex Smith for July 22. The defendants immediately notified Cunningham that Smith could only be deposed on July 25, as ordered by the court. ¹ Nonetheless, Cunningham refused to withdraw her deposition notice and the defendants resorted to filing a motion for protective order. Simultaneously, the defendants moved for an award of the attorney's fees they incurred in seeking court intervention to force Cunningham to comply with the earlier discovery order.

The magistrate judge scheduled a hearing for July 19, 1996. Cunningham attended this hearing, along with counsel for all defendants. At the hearing, Cunningham argued that she should be excused for failing to comply with her discovery obligations both because the defendants had served "contention" interrogatories, ² the answers to which allegedly depended on documents to be produced by the defendants, and because her client had died and the new administrator of the Starcher estate was not returning her telephone calls. The only reason Cunningham gave for noticing a deposition on a date different from the date previously ordered was that defense counsel would not consent to a change in the time and location of the deposition. Significantly (as explained below), Cunningham did not ask for additional time to prepare a defense to the motion for fees and costs, nor did she object to the timing of the hearing.

After hearing from all counsel, the magistrate judge ruled for the defendants on all issues. In particular, he issued a new order requiring Cunningham to supplement her discovery responses with full and complete responses within 10 days, he granted the defendants' motion for a protective order quashing the notice of depositions of the two defendants until Cunningham's discovery responses were received, and he granted defendants' motions for fees and costs, instructing defense counsel to file a bill of costs. The magistrate judge then received memoranda from the parties concerning the propriety of the fee award against Cunningham. In her memorandum, Cunningham argued (1) that the defendants' motions for fees and costs were received only shortly before the hearing before the magistrate judge, (2) that the magistrate judge's original July 10, 1996, order, requiring discovery responses by July 12th, gave her only two days within which to respond to discovery (despite the fact that she actually had the entire period from May 29th through July 12th to file responses), and (3) that the amount of requested attorney's fees was too high.

The magistrate judge rejected these arguments. He noted that the July 19th hearing had been scheduled on short notice "in view of the apparent urgency of these motions." He also stated that "[a]ll counsel were present and were given the opportunity to argue the various matters raised by the motions. A written transcript of the hearing has been prepared and filed in the record." The magistrate judge then stated that:

The authority for the [fees and costs imposed] by the Court is found in Rule 26(c), F.R. Civ. P., and Rule 37(a)(4), F.R. Civ. P. The defendants' motion for protective orders were granted after a hearing was conducted; it was determined that the conduct of plaintiff's counsel had necessitated the motions; it is apparent from the motions and the record of the hearing that defendants [sic] counsel made a good faith effort to resolve the matters without court action, that plaintiff's non-disclosure and response was not substantially justified, nor was plaintiff's counsel's action in unilaterally rescheduling the Smith deposition and that other circumstances do not exist to make an award of expenses unjust.

With these findings in mind, the magistrate judge ordered Cunningham to pay $2928.00 in attorney's fees, copying costs, and postage to CMS, and $1690.50 in attorney's fees to the county defendants. The magistrate judge further noted that Cunningham "neither stated to the Court that she was not prepared to go forward with the hearing nor requested a continuance of the hearing. Her position on each of the motions was argued forcefully and clearly. This Court is not persuaded that she needed more time to prepare." In closing, the magistrate judge stated that "[t]he Court considers the conduct of plaintiff's counsel to be egregious." Over Cunningham's objections, the district court affirmed the magistrate judge's award of fees and costs. Simultaneously, the district court gr...