859 F.2d 1000 (1st Cir. 1988), 88-1204, In re Recticel Foam Corp.

Docket Nº:88-1204, 88-1298.
Citation:859 F.2d 1000
Case Date:September 20, 1988
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

Page 1000

859 F.2d 1000 (1st Cir. 1988)




Nos. 88-1204, 88-1298.

United States Court of Appeals, First Circuit

September 20, 1988

Heard June 8, 1988.

William C. Humphreys, Jr., with whom Todd R. David and Alston & Bird, Atlanta, Ga., were on brief for appellant.

Louis N. Massery with whom Cooley, Manion, Moore & Jones, P.C., Boston,

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Mass., was on brief for appellees Milliken, Sinclair Paint Co., Western Bench Craft, Inc., Barber Coleman, Diversitech, Ross & Roberts.

Before CAMPBELL, Chief Judge, and TORRUELLA and SELYA, Circuit Judges.

SELYA, Circuit Judge.

There are two consolidated matters before us at this juncture. They are an odd couple: an interlocutory appeal and a petition for writ of mandamus. 1 Because we find that the challenged orders (1) are not "final" within the purview of 28 U.S.C. Sec. 1291 (1982), (2) do not come within the encincture of our jurisdiction under any recognized exception to the finality principle, and (3) are not suitable grist for the rarely-used mandamus mill, we pretermit the present proceedings shy of the merits.


On New Year's Eve 1986, a conflagration engulfed the San Juan Dupont Plaza Hotel. The blaze resulted in ninety-six deaths, numerous personal injuries, and extensive property damage. Upward of two thousand persons sued. The suits brought in federal fora were consolidated for discovery purposes in the United States District Court for the District of Puerto Rico. Petitioner-appellant Recticel Foam Corporation (RFC) is one of roughly two hundred defendants in this massive multi-district litigation. It is an especially reluctant respondent, because it insists that the district court lacks jurisdiction over its corporate person. RFC filed a dismissal motion, Fed.R.Civ.P. 12(b)(1), but as of the date of oral argument herein, the district court had not acted upon the motion. The jurisdictional issue is not now before us, and we take no view it.

Confronted with a litigatory monster, the district court took several innovative steps to handle the obvious complexities of pretrial discovery. These maneuvers included entry of an elaborate case management order (CMO); appointment of liaison counsel for plaintiffs and defendants, respectively; establishment of a document depository; and formation of a joint discovery committee (JDC). The JDC, drawn from the ranks of the lawyers on both sides, was apparently designed to promote quick discussion and resolution of discovery disputes and to explore novel methods of discovery that would ensure expeditious progress of the litigation.

In January 1988, with the blessing of the JDC, a codefendant (not RFC) moved to compel production of various videotapes and photographs. The holder of the depictions, the San Juan Dupont Plaza Hotel Corporation, despite conceding materiality and relevancy, claimed a work product immunity. Rather than fight this claim to the bitter end, the JDC and the Hotel worked out an agreement; the asserted immunity was waived in exchange for reimbursement of one-half the cost of generating the film. The district court ratified the agreement, ordering all served defendants to share in the expense. 2 RFC objected. It unsuccessfully sought reconsideration of the cost-sharing order and appealed the ensuing denial.

But there is more. On February 11, 1988, the district court entered an order

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ancillary to the earlier CMO. Recticel--which contended inter alia that the district court, having no personal jurisdiction over the corporation, could not require it to share in ongoing discovery expenses--objected, but to no avail. The February 11 order allocated the continuing costs of the document depository and the defense liaison equally among the served defendants and third-party defendants. Displeased with this turn of events, RFC sought mandamus. On April 4, a duty panel of this court, in an unpublished order, rejected portions of Recticel's petition out of hand. Insofar as the prayer that the cost-sharing order be quashed (or levies thereunder postponed until resolution of RFC's motion to dismiss), we consolidated that segment of the petition with the appeal from the order directing shared payment of production costs. Thereafter, we granted petitioner's motion to supplement the record in the consolidated proceedings to allow concurrent consideration of yet another cost-sharing order of the same genre, to wit, an order entered April 18, 1988 which covered essentially the same ground as the February 11 order, but concerned expenses subsequently incurred for the document depository and for liaison counsel.

Against this backdrop, we consider petitioner-appellant's eclectic offerings. We look first at the appeal, focusing on its jurisdictional underpinnings (or, more aptly put, on the lack of any), and then turn to the question of mandamus.


It is too elementary to warrant citation of authority that a court has an obligation to inquire sua sponte into its subject matter jurisdiction, and to proceed no further if such jurisdiction is wanting. As we recently stated: "No matter how tantalizing a problem may be, a federal appellate court cannot scratch intellectual itches unless it has jurisdiction to reach them." Director, OWCP v. Bath Iron Works Corp., 853 F.2d 11, 13 (1st Cir.1988). In this instance, we are persuaded that jurisdictional constraints preclude us from inquiring into the merits of RFC's appeal.

A. The Finality Principle. Our jurisdiction over appeals stems primarily from 28 U.S.C. Sec. 1291, which provides that the courts of appeals may review "final decisions of the district courts of the United States." An order is usually considered "final" only when it "resolv[es] the contested matter, leaving nothing to be done except execution of the judgment." United States v. Metropolitan Dist. Comm'n, 847 F.2d 12, 14 (1st Cir.1988). See also Firestone Tire and Rubber Co. v. Risjord, 449 U.S. 368, 373, 101 S.Ct. 669, 673, 66 L.Ed.2d 571 (1981); Coopers & Lybrand v. Livesay, 437 U.S. 463, 467, 98 S.Ct. 2454, 2457, 57 L.Ed.2d 351 (1978); Catlin v. United States, 324 U.S. 229, 233, 65 S.Ct. 631, 633, 89 L.Ed. 911 (1945).

Discovery orders, in general, are not final. See, e.g., Appeal of Licht & Semonoff, 796 F.2d 564, 568 (1st Cir.1986); Boreri v. Fiat S.P.A., 763 F.2d 17, 21 (1st Cir.1985); City of Las Vegas v. Foley, 747 F.2d 1294, 1297 (9th Cir.1984); cf. Bridge C.A.T. Scan Associates v. Technicare Corp., 710 F.2d 940, 943 (2d Cir.1983) (discovery orders not immediately appealable, generally, under 28 U.S.C. Sec. 1292(a)(1)). Short of electing not to comply and being adjudged in criminal contempt, a party may ordinarily obtain review of such an order only after judgment has entered. See Firestone Tire, 449 U.S. at 377, 101 S.Ct. at 675; Doyle v. London Guarantee & Accident Co., 204 U.S. 599, 607-08, 27 S.Ct. 313, 315-16, 51 L.Ed. 641 (1907); Licht & Semonoff, 796 F.2d at 568. Although pretrial cost-sharing orders can validly be characterized as case management orders rather than as "pure" discovery orders, the characterization is not dispositive. Federal jurisdiction cannot be dictated by the simple expedient of artful labelling. See Royal v. Leading Edge Products, Inc., 833 F.2d 1, 5 (1st Cir.1987).

The similarity between discovery orders and case management orders is, we suggest, striking. In both instances, the main litigation continues to pend in the district court, as to all parties. In both instances, the orders deal with preliminary matters, leading up to--but not comprising--the

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main event. In both instances, the activities to which the orders relate tend to be frequent, repetitive, fragmentary, and bound up in the progress of the suit as a whole. Whether or not case management orders are discovery orders in the conventional sense, they are sufficiently akin to discovery orders to warrant precisely the same treatment under the finality principle.

Having determined that, in the usual case, orders issued incident to a CMO are on a par with discovery orders vis-a-vis finality concerns, we now discuss those considerations which, in this instance, weigh against appellate jurisdiction. In the first place, the cost-sharing orders do not seem "final." Not only does the pot continue to boil furiously below, but the rights of the parties are not settled by the disputed orders in any relevant sense. Although the orders require some temporary shifting of funds, they do not purport to resolve any party's rights in any definitive way. Given the district court's continued exercise of jurisdiction, the orders remain subject to modification. See Fed.R.Civ.P. 26(f) (orders relating to "proper management of discovery.... may be altered or amended"). The district court can reassess their content, and make adjustments as it thinks best. The orders work less than an immutable rejection of Recticel's position because no irreversible legal consequences flow from them, as they presently stand.

Nor are the orders "final" in a monetary sense. The costs in question continue to mount, and further orders will doubtless be forthcoming. The fact that we are being asked to review what are admittedly the first flurry of a potential blizzard of similar orders argues strongly against their finality. Here, as with discovery orders generally, interruption of the ongoing process carries with it a potentially high price in terms of diminished efficiency. Moreover, to the extent that an inquiry into finality requires "some evaluation of ... competing considerations," Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 171, 94 S.Ct. 2140, 2149, 40 L.Ed.2d 732 (1974), we believe that the dangers inherent in piecemeal review of cost-sharing orders 3 far overbalance any realistic possibility of denying...

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