Perpetual American Bank, F.S.B. v. Terrestrial Systems, Inc., 86-2383

• Decision Date: 29 December 1986
• Docket Number: No. 86-2383,86-2383
• Citation: 811 F.2d 504
• Parties: PERPETUAL AMERICAN BANK, F.S.B., a Federal Savings Bank, Plaintiff-Appellee, v. TERRESTRIAL SYSTEMS, INC., a California corporation, Defendant, and Joann Ashley, et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 504

811 F.2d 504

7 Fed.R.Serv.3d 241

PERPETUAL AMERICAN BANK, F.S.B., a Federal Savings Bank, Plaintiff-Appellee, v. TERRESTRIAL SYSTEMS, INC., a California corporation, Defendant, and Joann Ashley, et al., Defendants-Appellants.

No. 86-2383.

United States Court of Appeals,

Ninth Circuit.

Submitted Dec. 29, 1986 ^*.

Decided Feb. 26, 1987.

D. Tyler Tharpe, Fresno, Cal., for defendants-appellants.

Stanford H. Atwood, Jr., San Jose, Cal., for plaintiff-appellee.

Appeal from the United States District Court for the Eastern District of California.

Before FLETCHER, WIGGINS and BRUNETTI, Circuit Judges.

PER CURIAM:

Appellants, the principal officers and only directors and shareholders of Terrestrial Systems, Inc., appeal an order of the district court, permitting Perpetual American Bank ("Perpetual") to attach certain of their assets. We find that this order is not an appealable final order and dismiss.

In April 1986, Perpetual filed an action in district court seeking damages for breach of a loan and security agreement and of guarantee agreements. In May 1986, as part of the ongoing litigation, Perpetual filed applications for three right-to-attach orders pursuant to Fed.R.Civ.P. 64 and applicable California law. ¹ The applications sought to attach certain of the personal, non-exempt assets of the appellants as guarantors of the corporate obligations. After a hearing, the district court granted Perpetual's applications and on July 1, 1986, the right-to-attach orders were issued. Appellants timely appealed.

This circuit has no published opinion deciding whether the grant of a prejudgment writ of attachment is an appealable order. We now hold that such orders do not meet the requirements of the collateral order doctrine announced in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 546-47, 69 S.Ct. 1221, 1225-26, 93 L.Ed. 1528 (1949).

The rationale for concluding that the grant of attachment is not appealable under the Cohen doctrine was explained by the Supreme Court in Swift & Co. Packers v. Compania Colombiana Del Caribe, 339 U.S. 684, 70 S.Ct. 861, 94 L.Ed. 1206 (1950). Swift was an admiralty case involving the attachment of a vessel. After holding that an order vacating an attachment was appealable because review at a later date would be an "empty rite" after the vessel had been released, the Court proceeded to state: "The situation is quite different where an attachment is upheld pending determination of the principal claim.... In such a situation the rights of all the parties can be adequately protected while the litigation on the main claim proceeds." Id. at 689, 70 S.Ct. at 865.

Most circuits that have addressed the issue have concluded that a grant of attachment is not appealable. See, e.g., W.T. Grant Co. v. Haines, 531 F.2d 671, 678 (2d Cir.1976) (an order of attachment (or an order continuing one) is not appealable until a final judgment is entered); Rosenfeldt v. Comprehensive Accounting Service Corp., 514 F.2d 607, 610 (7th Cir.1975) (an order granting a writ of attachment does not constitute a final collateral order within the meaning of Cohen ). We agree with these decisions and follow the rule that they announced.

Appellants rely on the Eighth Circuit's opinion in Baxter v. United Forest Products Co., 406 F.2d 1120 (8th Cir.), cert. denied, 394 U.S. 1018, 89 S.Ct. 1635, 23 L.Ed.2d 42 (1969), in support of their contention that a grant of attachment is appealable under Cohen. We believe that Baxter is distinguishable. To the extent it may be seen as expressing views contrary to those of the Second and Seventh Circuits, we decline to follow it. ²

Appellants have moved for an expedited appeal. Because this...