Joint Eastern & Southern Districts Asbestos Litigation, In re, JOHNS-MANVILLE

Decision Date02 May 1994
Docket NumberJOHNS-MANVILLE,93-3217,Nos. 92-3568,s. 92-3568
Citation22 F.3d 755
PartiesIn re JOINT EASTERN & SOUTHERN DISTRICTS ASBESTOS LITIGATION. In the Matter ofCORPORATION, et al., Debtors. Bernadine K. FINDLEY, as Executrix of the Estate of Hilliard Findley, et al., Plaintiffs, v. Donald M. BLINKEN, et al., Defendants. Appeal of James WALKER.
CourtU.S. Court of Appeals — Seventh Circuit

James R. Wylder, Bloomington, IL, William J. Harte (argued), Harte & Associates, Chicago, IL, for James Walker.

Jeffrey P. Lennard (argued), Steven H. Frankel, Christopher Q. King, Gregory R. Naron, Sonnenschein, Nath & Rosenthal, Chicago, IL, for Manville Personal Injury Settlement Trust.

James Walker, pro se.

Before BAUER and RIPPLE, Circuit Judges, and REYNOLDS, District Judge. *

RIPPLE, Circuit Judge.

Attorney James Walker was held in contempt in consolidated bankruptcy proceedings in the United States District Courts for the Southern and Eastern Districts of New York. He was ordered to pay a monetary fine. That judgment of contempt was registered in the Central District of Illinois and proceedings were commenced to collect on that judgment. Mr. Walker resisted, principally through a motion for relief under Rule 60(b)(4) of the Federal Rules of Civil Procedure and through a motion to quash the citation to discover assets. Unsuccessful in these efforts, he subsequently filed a notice of appeal. This matter is before us in appeal No. 92-3568.

Pursuant to the order of the district court, an examination to discover assets was later conducted before a United States Magistrate Judge. Mr. Walker refused to answer certain questions at this proceeding; the district court accordingly held him in civil contempt and imposed upon him a conditional sentence of imprisonment. Mr. Walker appeals this contempt ruling in appeal No. 93-3217. For the reasons that follow, we dismiss both appeals for want of jurisdiction.


The matter before us is the consolidation of two appeals which are tangential to the asbestos litigation conducted jointly by the United States District Courts for the Southern and Eastern Districts of New York (the "Rendering Courts"). 1 Mr. Walker represented certain plaintiffs in that matter. During the course of that litigation, the Rendering On October 21, 1991, Manville Trust ("the Trust"), whose assets are supervised by the Rendering Courts in the asbestos litigation, brought proceedings to collect the contempt sanctions imposed on Mr. Walker. The Trust registered the New York judgment in the United States District Court for the Central District of Illinois pursuant to 28 U.S.C. Sec. 1963. 2 Pursuant to Rule 69(a) 3 of the Federal Rules of Civil Procedure, it also filed a motion in that court for an order of citation to discover Mr. Walker's assets. On the same date, the citation was issued. On November 18, 1991, Mr. Walker filed motions to quash the citation and to dismiss the supplementary proceedings, and a request pursuant to Rule 60(b)(4) of the Federal Rules of Civil Procedure for determination that the registered foreign judgment is void. 4

Courts held Mr. Walker in contempt for knowingly violating two injunctions. The issue of imposing sanctions was referred to a Magistrate Judge and, on September 3, 1991, the Rendering Courts entered judgment, ordering that Mr. Walker be sanctioned in the amount of $81,655.01 plus interest. Mr. Walker did not appeal that order to the United States Court of Appeals for the Second Circuit.

On August 26, 1992, the district court denied, without prejudice to refile in the Rendering Courts, Mr. Walker's several challenges to the validity of the Rendering Courts' underlying contempt sanctions judgment. 5 See In re Joint Eastern & Southern Dists. Asbestos Litig., 800 F.Supp. 643 (C.D.Ill.1992). It noted that the Rendering Courts had previously addressed the issues raised by Mr. Walker, and found that "both judicial comity and the pursuit of efficient judicial administration dictate that Walker's opposition to the enforcement of judgment based on subject matter jurisdiction, personal jurisdiction, the restrictions of the Anti-Injunction Act and the actions of Magistrate Judge Caden be referred to the rendering Courts for review." Id. at 646. Because these efforts were denied without prejudice, Mr. Walker had the option of refiling in the Rendering Courts.

The district court then denied with prejudice Mr. Walker's motion to quash the citation. Mr. Walker contended that the citation failed to state expressly that the citation hearing would be conducted by the rules After numerous delays, Mr. Walker appeared with counsel for citation examination before a magistrate judge in the Central District of Illinois on August 3, 1993. He refused, however, to answer any questions, and he therefore was held in contempt. 7 On September 14, 1993, following a hearing, the district court determined that Mr. Walker's refusal to answer questions warranted the imposition of sanctions. In re Joint Eastern & Southern Dists. Asbestos Litig., 830 F.Supp. 1153, 1155 (C.D.Ill.1993). After considering Mr. Walker's past conduct, 8 the court concluded that "the appropriate sanction would be imprisonment conditioned on cooperation with the Manville Trust in the discovery process." Id. Consequently the court issued an order holding Mr. Walker in civil contempt for failure to comply with the citation and remanding him into custody until he should decide to cooperate with the Manville Trust concerning the citation to discover his assets. Id. at 1156. The court further indicated its willingness to stay the confinement order upon the posting of a supersedeas bond within 48 hours. Mr. Walker did file the supersedeas bond. 9 He has not, as far as the record before us reveals, refiled his claims concerning the underlying judgment in the Rendering Courts. He now appeals to this court both orders of the United States District Court for the Central District of Illinois.

                governing depositions, as required by Illinois Supreme Court Rule 277(e). 6  The district court disagreed:  It stated, "It is clear from the face of the citation that the hearing would occur in accordance with the rules governing depositions."  Id. at 647.   The district court then set the date for Mr. Walker's citation hearing.

From the beginning of this case, we have questioned our jurisdiction to review this appeal. 10 Courts of appeals have jurisdiction over appeals from all final decisions of district courts. 28 U.S.C. Sec. 1291. The judgment of a district court is final if it "ends the litigation on the merits and leaves nothing for the court to do but execute the judgment." Catlin v. United States, 324 U.S. 229, 233, 65 S.Ct. 631, 633, 89 L.Ed. 911 (1945). We now shall turn to an examination of whether we have the authority to hear either of these appeals.

A. Appeal No. 92-3568

The first appeal, No. 92-3568, brings to this court the decisions of the district court of August 26, 1992. In essence, these decisions denied without prejudice Mr. Walker's motion for dismissal of the judgment of contempt entered against him by the Rendering Courts. As we have noted earlier, this denial was without prejudice to its being renewed before the Rendering Courts. The district court also determined that the citation to discover assets was without procedural infirmity and need not be quashed.

At the outset, we set forth the fundamental principles that our earlier cases establish for determining whether an order entered in a postjudgment proceeding may be appealed to this court. Perhaps the most fundamental of these principles, rooted firmly in our cases, is that a postjudgment proceeding, for purposes of appeal, must be viewed as a separate lawsuit from the action which produced the underlying judgment. Consequently, the requirements of finality must be met without reference to that underlying judgment. Resolution Trust Corp. v. Ruggiero, 994 F.2d 1221, 1224 (7th Cir.1993); SEC v. Suter, 832 F.2d 988, 990 (7th Cir.1987); King v. Ionization Int'l, Inc., 825 F.2d 1180, 1184-85 (7th Cir.1987). A postjudgment order is final, then, if it disposes completely of the issues raised. Accordingly, we have joined every other circuit 11 to have considered the question in holding that, as a general rule, an order authorizing discovery in aid of execution of judgment is not appealable until the end of the case. Central States Southeast & Southwest Areas Pension Fund v. Express Freight Lines, Inc., 971 F.2d 5, 6 (7th Cir.1992). The denial of a motion to quash the citation proceeding simply lets the proceeding continue and therefore is not final or appealable. See id. (explaining that the denial of a postjudgment discovery order is appealable but that the granting of the discovery is not). Applying the general rule that, when determining the appealability of a postjudgment collection proceeding, the measure of finality is assessed not at the entry of the underlying judgment but at the end of the separate proceeding to execute or enforce that judgment for the payment of money, we stated:

A postjudgment order might seem final by definition because the judgment is already behind it. But there are judgments and there are judgments.... A contested collection proceeding will end in a judgment or series of judgments granting supplementary relief to the plaintiff. The judgment that concluded the collection proceeding is the judgment from which the defendant can appeal.

Central States, 971 F.2d at 6 (emphasis added) (citations omitted).

Since deciding Central States, this court has revisited the issue and suggested that there might be circumstances in which a discovery order, like one emanating from a citation hearing, might be final and appealable:

Often the sole object of such a proceeding is discovery of the judgment debtor's assets, since once they are discovered the judgment creditor may...

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