Aurora Bancshares Corp. v. Weston, 85-2759
| Decision Date | 22 November 1985 |
| Docket Number | No. 85-2759,85-2759 |
| Citation | 777 F.2d 385 |
| Parties | AURORA BANCSHARES CORPORATION and Ralph L. Egeland, Plaintiffs-Appellants, v. Roger L. WESTON and John A. Sheldon, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Paul E. Freehling, Pope, Ballard, Shepard & Fowle, Ltd., Chicago, Ill., for plaintiffs-appellants.
Nathan H. Dardick, Dardick & Denlow, Chicago, Ill., for defendants-appellees.
Before CUDAHY, ESCHBACH and POSNER, Circuit Judges.
We have before us two motions in this appeal which raise procedural issues of some significance. The plaintiffs, a corporation and its president, brought suit under the federal securities laws to prevent the defendants from buying a potentially controlling interest in the corporation. The details and merits of the suit have no bearing on the issues brought before us by these two motions, so we shall not belabor them. It is enough that the plaintiffs moved the district judge for a preliminary injunction to stop the defendants from buying shares of the corporation and that the district judge dismissed the motion without a hearing, on two grounds: dismissal was an appropriate sanction for the plaintiffs' alleged violation of discovery orders; and the grant of an injunction was barred by the plaintiffs' "unclean hands" in having violated an oral agreement with the defendants not to take certain measures, pending a hearing, to impede the defendants' efforts to take control of the corporation. The oral agreement was represented to be that "the plaintiff will not take any actions between now and the date of that hearing to do any poison pill mechanisms or anything kinky that would jeopardize or dilute the interest of the defendant." The plaintiffs have filed an appeal under 28 U.S.C. Sec. 1292(a)(1) from the dismissal of their request for a preliminary injunction. The merits of the appeal are not before us; before us are two motions: the plaintiffs' motion for an injunction pending appeal, and the defendants' motion to dismiss the appeal as outside our appellate jurisdiction.
We shall take up the defendants' motion first. The defendants argue that the dismissal of the plaintiffs' request for a preliminary injunction is not appealable because discovery sanctions are not appealable and because a dismissal as distinct from denial of a preliminary injunction is not within the scope of section 1292(a)(1), which allows the immediate appeal of interlocutory orders granting, refusing, modifying, etc. injunctions.
It is true that most orders imposing sanctions for abuses of discovery, like most (other) orders respecting discovery, are not appealable, but that is because they are not final, and because discovery orders are not deemed injunctions within the meaning of section 1292(a)(1) even though they have the form of an order to do or not do something. But if an order respecting discovery is final, as would be an order dismissing a lawsuit as a sanction for abuse of discovery, then it is appealable under section 1291; and if, as here, the order is the denial (or grant, etc.) of an injunction, then it is appealable under section 1292(a)(1) even though nonfinal. The fact that the order grows out of a dispute over discovery is irrelevant. Moreover, the order of which the plaintiffs complain was only partly a sanction for violation of discovery orders; it was also a sanction for the plaintiffs' violation of the standstill agreement.
The defendants' argument that section 1292(a)(1) allows the appeal only of orders denying, and not orders dismissing, injunctions, borders on the preposterous. The word "denial" doesn't even appear in the statute. The statute confers appellate jurisdiction over interlocutory orders "granting continuing, modifying, refusing or dissolving injunctions, or refusing to dissolve or modify injunctions...." If what the district judge did here was not a refusal to grant a preliminary injunction, we don't know what would be. The plaintiffs asked for such an injunction, and the judge refused to give it to them--refused even to hold a hearing on the matter.
We come now to the plaintiffs' request that we grant the injunction. Rule 8(a) of the Federal Rules of Appellate Procedure authorizes us to grant a motion for an injunction pending appeal. If the district judge had denied the request for a preliminary injunction after the balancing of merits and harms required by our decision in Roland Machinery Co. v. Dresser Industries, Inc., 749 F.2d 380 (7th Cir.1984), we could review his decision and decide whether there was sufficient likelihood of overturning it and sufficient evidence of irreparable harm to the plaintiffs from denying interim relief not offset by irreparable harm to the defendants from granting it to warrant our issuing the preliminary injunction pending appeal. See Adams v. Walker, 488 F.2d 1064 (7th Cir.1973). But because the judge refused to consider the merits of the request for a preliminary injunction, and threw the request out as punishment for the plaintiffs' discovery abuses and unclean hands, we lack any findings of the sort that would provide the usual predicate for our consideration of a request for a preliminary injunction.
This is not to say that the judge was wrong to refuse the request for a preliminary injunction on the grounds...
To continue reading
Request your trial
-
Robinson v. Tanner
...for abuses of discovery 4 are not appealable until after final judgment except under limited circumstances. Aurora Bancshares Corp. v. Weston, 777 F.2d 385, 386 (7th Cir.1985); Meche v. Dan-Tex International, Inc., 681 F.2d 264, 265 (5th Cir.1982); In re Underwriters at Lloyd's, 666 F.2d 55......
-
In re: Joseph H. Golant
...F.2d 1569, 1573 (7th Cir. 1987) (order in civil case dismissing complaint for untimely service is "final"); Aurora Bancshares Corp. v. Weston, 777 F.2d 385, 386 (7th Cir. 1985) (order in civil case dismissing suit as a sanction for discovery abuse is "final"). Consequently, regardless of ho......
-
States v. Lewis
...Mohawk Industries, Inc. v. Carpenter, 558 U.S. 100, 107–09, 130 S.Ct. 599, 175 L.Ed.2d 458 (2009); Aurora Bancshares Corp. v. Weston, 777 F.2d 385, 386 (7th Cir.1985) (per curiam); International Products Corp. v. Koons, 325 F.2d 403, 406–07 (2d Cir.1963) (Friendly, J.)), it “g[a]ve or aid[e......
-
Allendale Mut. Ins. Co. v. Bull Data Systems, Inc.
...within the meaning of section 1292(a)(1). Reise v. Board of Regents, 957 F.2d 293 (7th Cir.1992); Aurora Bancshares v. Weston, 777 F.2d 385, 386 (7th Cir.1985) (per curiam); International Products Corp. v. Koons, 325 F.2d 403, 406 (2d Cir.1963) (Friendly, J.); Casey v. Planned Parenthood, 1......