Johnny Pflocks, Inc. v. Firestone Tire & Rubber Co., No. 80-4347

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Writing for the CourtBefore WALLACE, SCHROEDER, and BOOCHEVER; BOOCHEVER
Citation634 F.2d 1215
PartiesJOHNNY PFLOCKS, INC., a corporation dba Stocker Tire Service, Plaintiff/Appellant, v. The FIRESTONE TIRE & RUBBER COMPANY, a corporation, Trans-State Tire Service, Inc., a corporation, Defendants/Appellees.
Docket NumberNo. 80-4347
Decision Date29 December 1980

Page 1215

634 F.2d 1215
JOHNNY PFLOCKS, INC., a corporation dba Stocker Tire
Service, Plaintiff/Appellant,
v.
The FIRESTONE TIRE & RUBBER COMPANY, a corporation,
Trans-State Tire Service, Inc., a corporation,
Defendants/Appellees.
No. 80-4347.
United States Court of Appeals,
Ninth Circuit.
Dec. 29, 1980.

Page 1216

Peter G. Bertrand, Dinkelspiel & Dinkelspiel, San Francisco, Cal., for plaintiff/appellant.

John M. Kelson, Peitit & Martin, David E. Lombardi, Jr., Lombardi & Lombardi, San Francisco, Cal., for defendants-appellees.

Before WALLACE, SCHROEDER, and BOOCHEVER, Circuit Judges.

BOOCHEVER, Circuit Judge.

Johnny Pflocks, Inc. brought suit against Firestone Tire & Rubber Company. On May 16, 1980, the district court entered an order compelling Pflocks to answer Firestone's first interrogatories and to pay $7,862 in attorneys' fees and costs as a sanction for its previous failure to provide complete answers. On June 20, 1980, the court clarified that it had awarded expenses pursuant to Federal Rule of Civil Procedure 37(a)(4). 1 After Pflocks appealed the order awarding the expenses, Firestone moved this court to dismiss for lack of jurisdiction. We grant Firestone's motion.

Discovery orders and sanctions in the nature of civil penalties are normally deemed interlocutory and thus nonappealable by the parties. See David v. Hooker, Ltd., 560 F.2d 412, 415 (9th Cir. 1977); In Re Letters Rogatory From City of Haugesund, Nor., 497 F.2d 378, 380-81 (9th Cir. 1974); 8 Wright and Miller, Federal Practice and Procedure: Civil § 2006, at 29-34 (1970). Courts have created narrow exceptions to this rule for orders dismissing actions, granting default judgments, and for some orders affecting nonparties. See David v. Hooker, Ltd., supra, 560 F.2d at 415-17; 9 Moore's Federal Practice P 110.13 (1)-(4), (2d ed.1980).

Pflocks argues that the order compelling payment of expenses is final and appealable as an exception recognized in Cohen v. Beneficial Loan Corp., 337 U.S. 541, 546-47, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949), in that it is "in no way an ingredient of any cause of action in the suit and does not require consideration with any issue in the pending action." Cohen involved an appeal from an order denying a motion seeking security for expenses of defending a shareholders derivative suit pursuant to a state statute. An appeal after trial would have been fruitless. Cohen, clearly indicates that appeals may not be taken from orders that ...

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23 practice notes
  • Molski v. Evergreen Dynasty Corp., No. 05-56452.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • August 31, 2007
    ...Sav. Bank v. Nat'l Mortg. Equity Corp., 893 F.2d 1109, 1113 (9th Cir.1990); Johnny Pflocks, Inc. v. Firestone Tire & Rubber Co., 634 F.2d 1215, 1216 (9th Cir.1980). However, we have not previously and specifically addressed whether pre-filing orders entered against vexatious litigants are i......
  • Robinson v. Tanner, No. 85-7456
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • September 9, 1986
    ...Eastern Maico Distributors v. Maico-Fahrzeugfabrik, 658 F.2d 944, 947 (3d Cir.1981); Johnny Pflocks, Inc. v. Firestone Tire & Rubber Co., 634 F.2d 1215, 1216 (9th Cir.1980); Evanson v. Union Oil Co. of California, 619 F.2d 72, 74 (Temp.Emer.Ct.App.), cert. denied, 449 U.S. 832, 101 S.Ct. 10......
  • Dardar v. Lafourche Realty Co., Inc., No. 87-3629
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • July 18, 1988
    ...at Lloyd's, 666 F.2d 55 (4th Cir.1981); Ruiz v. Estelle, 609 F.2d 118 (5th Cir.1980); Pflocks v. Firestone Tire & Rubber Co., 634 F.2d 1215 (9th Cir.1980). Denials of interim attorney's fees have been held appealable under the collateral order exception in Sprague v. Ticonic Nat. Bank, 307 ......
  • Eastern Maico Distributors, Inc. v. Maico-Fahrzeugfabrik, G.m.b.H., MAICO-FAHRZEUGFABRI
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • September 11, 1981
    ...an action, that party for obvious reasons may not appeal the order immediately. See Johnny Pflocks, Inc. v. Firestone Tire & Rubber Co., 634 F.2d 1215 (9th Cir. 1980). As to the party the order is interlocutory and can be appealed when final judgment in the case is issued. No irreparable ha......
  • Request a trial to view additional results
23 cases
  • Molski v. Evergreen Dynasty Corp., No. 05-56452.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • August 31, 2007
    ...Sav. Bank v. Nat'l Mortg. Equity Corp., 893 F.2d 1109, 1113 (9th Cir.1990); Johnny Pflocks, Inc. v. Firestone Tire & Rubber Co., 634 F.2d 1215, 1216 (9th Cir.1980). However, we have not previously and specifically addressed whether pre-filing orders entered against vexatious litigants are i......
  • Robinson v. Tanner, No. 85-7456
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • September 9, 1986
    ...Eastern Maico Distributors v. Maico-Fahrzeugfabrik, 658 F.2d 944, 947 (3d Cir.1981); Johnny Pflocks, Inc. v. Firestone Tire & Rubber Co., 634 F.2d 1215, 1216 (9th Cir.1980); Evanson v. Union Oil Co. of California, 619 F.2d 72, 74 (Temp.Emer.Ct.App.), cert. denied, 449 U.S. 832, 101 S.Ct. 10......
  • Dardar v. Lafourche Realty Co., Inc., No. 87-3629
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • July 18, 1988
    ...at Lloyd's, 666 F.2d 55 (4th Cir.1981); Ruiz v. Estelle, 609 F.2d 118 (5th Cir.1980); Pflocks v. Firestone Tire & Rubber Co., 634 F.2d 1215 (9th Cir.1980). Denials of interim attorney's fees have been held appealable under the collateral order exception in Sprague v. Ticonic Nat. Bank, 307 ......
  • Eastern Maico Distributors, Inc. v. Maico-Fahrzeugfabrik, G.m.b.H., MAICO-FAHRZEUGFABRI
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • September 11, 1981
    ...an action, that party for obvious reasons may not appeal the order immediately. See Johnny Pflocks, Inc. v. Firestone Tire & Rubber Co., 634 F.2d 1215 (9th Cir. 1980). As to the party the order is interlocutory and can be appealed when final judgment in the case is issued. No irreparable ha......
  • Request a trial to view additional results

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