Cato v. Fresno City, 96-17245

• Decision Date: 10 December 1999
• Docket Number: No. 96-17245,96-17245
• Citation: 220 F.3d 1073
• Parties: (9th Cir. 2000) RALPH S. CATO, Plaintiff-Appellee, v. FRESNO CITY; DARYL BALCH, Defendants-Appellants, and J. BRADIN; R. MATSUMOTO, Defendants, and MICHAEL G. MARDEROSIAN, Appellant. Office of the Circuit Executive
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1073

220 F.3d 1073 (9th Cir. 2000)

RALPH S. CATO, Plaintiff-Appellee, v. FRESNO CITY; DARYL BALCH, Defendants-Appellants, and J. BRADIN; R. MATSUMOTO, Defendants,

and

MICHAEL G. MARDEROSIAN, Appellant.

No. 96-17245

Office of the Circuit Executive

U.S. Court of Appeals for the Ninth Circuit

Argued and Submitted December 10, 1999--San Francisco, California

Filed August 17, 2000

Michael G. Marderosian, Marderosian, Swanson, Oren & Paboojian, Fresno, California, pro per for the appellant.

No appearance for the plaintiff-appellee.

Appeal from the United States District Court for the Eastern District of California, Garland E. Burrell, District Judge, Presiding; D.C. No. CV-94-05045-GEB/DLB

Before: James R. Browning, Pamela Ann Rymer, and Andrew J. Kleinfeld, Circuit Judges.

PER CURIAM:

The question is whether an order imposing sanctions against an attorney pursuant to Fed. R. Civ. P. 16(f) is immediately appealable. Applying the principles established in Cunningham v. Hamilton County, 527 U.S. 198 (1999) (holding that sanctions orders under Fed. R. Civ. P. 37(a)(4) are not immediately appealable), we hold that such orders are appealable only after final judgment has been entered in the underlying action.¹

I.

Counsel of record for defendants appeals from an order imposing sanctions under Fed. R. Civ. P. 16(f). After issuing a series of orders to show cause why counsel should not be sanctioned for late filings and other violations of the final pretrial order, the district court sanctioned the attorney $7500 pursuant to Fed. R. Civ. P. 16(f). The attorney appealed within thirty days of the issuance of the sanctions order. After the sanctions order issued, but prior to the close of the underlying case, the attorney was removed as counsel for defendants. Judgment in the underlying case was entered for defendants some time later.

Title 28 U.S.C. S 1291 vests courts of appeals with jurisdiction over appeals from "final decisions of the district courts." 28 U.S.C. S 1291. In Cunningham v. Hamilton County, the Supreme Court held that an order imposing sanctions on an attorney pursuant to Fed. R. Civ. P. 37 is not a "final decision" under 28 U.S.C. S 1291 and does not fall under the collateral order doctrine exception toS 1291, even when the attorney no longer represents any party in the case. 527 U.S. 198, 200 (1999). The collateral order doctrine provides an exception to S 1291 for " `decisions that are conclusive, that resolve important questions separate from the merits, and that are effectively unreviewable on appeal from the final judgment in the underlying action.' " Id. at 204 (quoting Swint v. Chambers County Comm'n, 514 U.S. 35, 42 (1995)). The Court explained that, although Rule 37 sanctions orders are conclusive, they "often will be inextricably intertwined with the merits of the action" and are not "effectively unreviewable" on appeal after final judgment in the underlying case. Id. at 205-07. Cunningham emphasized that allowing immediate appeal of Rule 37 sanctions orders would undermine the final judgment rule by interfering with trial judges' discretion to structure sanctions and permitting piecemeal appeals. See id. at 209. The reasons underlying Cunningham's bar against immediate appeal from Rule 37 sanctions orders apply equally to Rule 16 sanctions orders. Defendants' attorney's appeal from the district court's sanctions order was therefore premature.

However, we can assume jurisdiction based on a prematurely filed notice of appeal when "subsequent events can validate [the] prematurely filed appeal." Anderson v. Allstate Ins. Co., 630 F.2d 677, 681 (9th Cir. 1980); see Eastport Assocs. v. City of Los Angeles (In re Eastport Assocs.), 935 F.2d 1071, 1075 (9th Cir. 1991). We take "a pragmatic approach to finality in situations where events subsequent to a nonfinal order fulfill the purposes of the final judgment rule." Dannenberg v. Software Toolworks, Inc., 16 F.3d 1073, 1075 (9th Cir. 1994). The defect in the defendants' attorney's immediate notice of appeal (under the new rule of Cunningham) has been cured by the entry of final judgment in the underlying action. See Anderson, 630 F.2d at 681 ("There is no danger of piecemeal appeal confronting us if we find...