Ott v. City of Milwaukee

• Decision Date: 29 May 2012
• Docket Number: Nos. 11–1541,11–1638.,s. 11–1541
• Citation: 82 Fed.R.Serv.3d 984,682 F.3d 552
• Parties: Chaunte OTT, Plaintiff–Appellee, v. CITY OF MILWAUKEE, et al., Defendants. Appeals of Wisconsin Department of Corrections and Wisconsin State Crime Laboratory, Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

682 F.3d 552

82 Fed.R.Serv.3d 984

Chaunte OTT, Plaintiff–Appellee,

v. CITY OF MILWAUKEE, et al., Defendants.Appeals of Wisconsin Department of Corrections and Wisconsin State Crime Laboratory, Appellants.

Nos. 11–1541, 11–1638.

United States Court of Appeals,Seventh Circuit.

Argued Sept. 28, 2011.

Decided May 29, 2012.

Arthur Loevy, Attorney, Loevy & Loevy, Chicago, IL, for Plaintiff–Appellee in no. 11–1541.

Gayle Horn (argued), Attorney, Loevy & Loevy, Chicago, IL, for Plaintiff–Appellee in no. 11–1638.

Richard Briles Moriarty (argued), Attorney, Office of the Attorney General Wisconsin Department of Justice, Madison, WI, for Appellants.

Grant F. Langley, Attorney, Milwaukee City Attorney's Office, Milwaukee, WI, for Defendants.

Before BAUER, WOOD, and TINDER, Circuit Judges.

WOOD, Circuit Judge.

Following his vindication after his wrongful conviction and incarceration for the 1995 murder of Jessica Payne, Chaunte Ott brought a civil rights action against the City of Milwaukee and several police officers. That case is still pending. This appeal was filed when Ott served subpoenas on two non-party state agencies, the Wisconsin Crime Laboratory and the Wisconsin Department of Corrections. Rather than comply, the state agencies filed motions to quash. The district court denied those motions, at which point the state agencies filed this appeal, invoking jurisdiction under the collateral-order doctrine. We conclude that this is not a proper case for that basis of jurisdiction, in light of the Supreme Court's decision in Mohawk Industries, Inc. v. Carpenter, 558 U.S. 100, 130 S.Ct. 599, 175 L.Ed.2d 458 (2009). We add that even if we have read Mohawk Industries too strictly and jurisdiction is proper, we would find that the state agencies' arguments lack merit.

I

Ott served 13 years for the murder of Jessica Payne before DNA evidence exonerated him. The State of Wisconsin dropped all charges against him in 2009 after a Wisconsin appellate court held that he was entitled to a new trial. Shortly thereafter, the Milwaukee Police Department announced that it had connected the DNA found on nine victims, including Payne, to Walter E. Ellis. In light of that finding and his exoneration, Ott filed an action under 42 U.S.C. § 1983 against several Milwaukee police officers and the City of Milwaukee; he sought damages for his wrongful conviction and incarceration. In furtherance of those claims, Ott served subpoenas on the Wisconsin Crime Laboratory and the Wisconsin Department of Corrections pursuant to Federal Rule of Civil Procedure 45, in an effort to obtain documents associated with the DNA testing of Ellis. (We note that these entities lie within 100 miles of the courthouse, see Fed.R.Civ.P. 45(b)(2)(B), and so there is no doubt that they were part of the pending action.)

The state agencies moved to quash the subpoenas, arguing that they are not “persons” subject to Rule 45 and that Ott's service by certified mail was invalid. The district court denied that motion. The state agencies then moved to amend the court's order on the ground that they had preserved additional substantive objections that they had not previously raised. The district court rejected the additional arguments as untimely, but it nevertheless allowed the state agencies to submit briefs on the question whether special circumstances warranted an exception to waiver. After reviewing that submission, the court concluded that the state agencies were not entitled to an exception and it ordered the production of the subpoenaed materials. The state agencies then filed this appeal.

II

We consider first whether the state agencies' appeal is properly before this court. The state agencies assert that it is, noting that this court has held that nonparties may directly appeal adverse final discovery orders before final judgment is entered in the underlying case. See Dellwood Farms, Inc. v. Cargill, Inc., 128 F.3d 1122, 1125 (7th Cir.1997) (“When the order is directed against a nonparty, as it is here, [the nonparty] has no appellate remedy at the end of the litigation, so he is entitled to appeal immediately.”). Ott responds that the Supreme Court's decision in Mohawk Industries, Inc. v. Carpenter, 558 U.S. 100, 130 S.Ct. 599, 175 L.Ed.2d 458 (2009), has effectively overruled this court's position on the issue.

Collateral-order review is based on a “practical” construction of 28 U.S.C. § 1291; it is not an exception to the final-judgment rule. Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949); Digital Equip. Corp. v. Desktop Direct, Inc., 511 U.S. 863, 867, 114 S.Ct. 1992, 128 L.Ed.2d 842 (1994). Immediate finality exists only for orders “that are conclusive, that resolve important questions completely separate from the merits, and that would render such important questions effectively unreviewable on appeal from final judgment in the underlying action.” Digital Equip., 511 U.S. at 867, 114 S.Ct. 1992. The Supreme Court recently emphasized the narrow scope of the doctrine in Mohawk Industries, where it held that a collateral-order appeal was not available to review an order that may violate the attorney-client privilege. The Court deemed postjudgment appeal sufficient to protect the interests associated with that privilege. If a party is particularly concerned about turning over privileged materials, the Court noted, there are other alternatives available, such as an interlocutory appeal under 28 U.S.C. § 1292(b), a writ of mandamus,or an appeal from a contempt citation. Id. at 608, 130 S.Ct. 599. The overriding lesson from Mohawk Industries is that “the class of collaterally appealable orders must remain ‘narrow and selective in its membership.’ ” Id. at 609, 130 S.Ct. 599, quoting Will v. Hallock, 546 U.S. 345, 350, 126 S.Ct. 952, 163 L.Ed.2d 836 (2006). The adversely affected party is expected to put its money where its mouth is, so to speak, before an appeal will be heard.

Just as a party asserting attorney-client privilege is compelled to use a method other than a collateral-order appeal if it wants to avoid turning over certain documents, so in our view must the state agencies resist their subpoena orders more definitively before this court may exercise jurisdiction. It might be enough that the state agencies may resist compliance and risk a contempt order, if they feel strongly that a prejudgment appeal is necessary. Motorola, Inc. v. Computer Displays Int'l, Inc., 739 F.2d 1149, 1154 (7th Cir.1984) (“An order finding a party in civil contempt disposes of all the issues raised only if it includes both a finding of contempt and the imposition of a sanction.”).

There is no risk of an unwarranted intrusion on state sovereignty associated with this course of action; notably, the two state agencies here were acting as the agents of the City's Police Department, and Ott's suit against the City and its officers falls comfortably within federal authority. It is well understood that “courts have inherent power to enforce compliance with their lawful orders through civil contempt.” Shillitani v. United States, 384 U.S. 364, 370, 86 S.Ct. 1531, 16 L.Ed.2d 622 (1966); see also Young v. United States ex rel. Vuitton et Fils, S.A., 481 U.S. 787, 794, 107 S.Ct. 2124, 95 L.Ed.2d 740 (1987) (“[I]t is long settled that courts possess inherent authority to initiate contempt proceedings for disobedience to their orders.”). We know for a fact that state entities are not unfamiliar with the possibility of contempt proceedings arising out of their failure to obey federal court orders. Bailey v. Roob, 567 F.3d 930, 937–38 (7th Cir.2009) (discussing the possibility of contempt proceedings against state agency arising out of consent decree); Power v. Summers, 226 F.3d 815, 819 (7th Cir.2000) (concluding that injunction against state may be enforced by contempt citation).

We find immaterial the fact that this case involves a discovery order directed at nonparties whereas Mohawk Industries involved parties to the case. Under the facts presented here, the state agencies' interests in protecting their privileged materials are as strong as those of a party. Ott seeks documents created by the agencies and that are in their possession. There is no risk that the agencies lack the proper incentives to protect the subpoenaed materials. The Supreme Court's concern that “piecemeal, prejudgment appeals ... undermine[ ] ‘efficient judicial administration’ and encroach [ ] upon the prerogatives of district court judges” applies with equal force to the nonparties subject to the discovery orders in this case. Mohawk Industries, 130 S.Ct. at 605, quoting Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 374, 101 S.Ct. 669, 66 L.Ed.2d 571 (1981).

III

A

If perchance we have read Mohawk Industries too strictly and the Court meant to leave a wider door open for collateral-order appeals brought by nonparties, or if the state agencies meant to invoke sovereign immunity through their reference to “persons,” we would nonetheless reject their position on the merits. This court reviews a district court's order refusing to quash a subpoena for abuse of discretion. United States v. Lloyd, 71 F.3d 1256, 1268 (7th Cir.1995). We review the district court's interpretation of Rule 45de novo. Pickett v. Sheridan Health Care Ctr., 610 F.3d 434, 440 (7th Cir.2010).

Rule 45 establishes the proper procedure for issuing subpoenas. Relevant to this appeal, it requires the subpoena to “command each person to whom it is directed to do [certain things].” Fed.R.Civ.P. 45(a)(1)(A)(iii) (emphasis added). Similarly, Rule 45(c) is titled, “Protecting a Person Subject to a Subpoena.” The state agencies argue that they are not “persons” subject to subpoenas under Rule 45. The district court rejected their argument, relying on the D.C. Circuit's recent opinion on this question.

The D.C. Circuit—the only court of appeals that has considered this issue—held that a federal...