Phillips v. Chas. Schreiner Bank

• Decision Date: 31 January 1990
• Docket Number: No. 89-5563,89-5563
• Citation: 894 F.2d 127
• Parties: Andrew B. PHILLIPS, Plaintiff-Appellee, v. CHAS. SCHREINER BANK and Schreiner Bancshares, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 127

894 F.2d 127

15 Fed.R.Serv.3d 1293

Andrew B. PHILLIPS, Plaintiff-Appellee, v. CHAS. SCHREINER BANK and Schreiner Bancshares, Defendants-Appellants.

No. 89-5563.

United States Court of Appeals Fifth Circuit.

Jan. 31, 1990.

Sharon E. Callaway, Robert Kelly, Groce, Locke & Hebdon, San Antonio, Tex., for defendants-appellants.

Stephen Mark Murray, Murray, McClenahan & Sparr, San Antonio, Tex., Dana G. Kirk, Don M. Kennedy, Kirk & Carrigan, Houston, Tex., for plaintiff-appellee.

Appeal from the United States District Court for the Western District of Texas.

Before HIGGINBOTHAM, SMITH, and DUHE, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

Defendants Chas. Schreiner Bank and Schreiner Bancshares (collectively, "Schreiner Bank") seek interlocutory relief from an order forbidding them from pursuing foreclosure proceedings during the pendency of this action. Concluding that the challenged order is an injunction and that it was issued in violation of Fed.R.Civ.P 65 and the Anti-Injunction Act, 28 U.S.C. Sec. 2283, we reverse and remand.

I.

Over the course of several years, Schreiner Bank financed Phillips's participation in numerous real estate ventures, typically securing payment of the loans by obtaining deeds of trust on the properties. By January 1989, Phillips had become dissatisfied with this once-harmonious business relationship. He filed a "lender liability" suit against Schreiner Bank in federal district court, basing jurisdiction upon the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. Secs. 1961-1968, and also asserting various state statutory and common law causes of action. Phillips's complaint sought actual and exemplary damages, but not recovery of the real property securing the loans.

The parties soon became embroiled in a discovery battle. After Schreiner Bank succeeded in quashing two depositions, Phillips moved for expedited discovery, citing a need to prepare a defense to state court foreclosure proceedings which he expected Schreiner Bank to initiate. The district court granted Phillips's motion by setting stringent deadlines in its March 7, 1989, scheduling order. That order required the parties to amend their pleadings and to file all dispositive motions by April 17 and to complete discovery by May 8.

On March 13, Schreiner Bank moved for a reconsideration of the March 7 scheduling order and assured the court that it would seek only judicial foreclosure on Phillips's properties. ¹ The court took no action on the motion to reconsider, and on April 14 Schreiner Bank again moved to extend discovery deadlines. On April 25, the bank filed suit in Texas state court, seeking to foreclose on some of Phillips's encumbered properties, and on April 26 it notified Phillips by letter that it planned to foreclose on his home. The letter did not indicate whether the bank planned to seek judicial or non-judicial foreclosure.

Complaining of "foot-dragging" by Schreiner Bank, on April 26 Phillips filed a motion to compel the production of documents and a motion for sanctions. On May 3, Phillips moved for an expedited trial setting because of the bank's initiation of state court foreclosure proceedings.

On May 5, the district court, purportedly in response to the bank's motion for extension, entered an order that granted Phillips's motion to compel production and Schreiner Bank's motion to extend the discovery cut-off. In that same order, the court prohibited the parties from taking any further action in state or federal court or attempting to foreclose on any of the properties involved in the suit. ² Neither party had moved formally for such relief, and Schreiner Bank first learned that it had been prohibited from pursuing state foreclosure remedies when it received a copy of the court's order in the mail. ³ Schreiner Bank now brings this interlocutory appeal, asking us to dissolve the order as violative of Fed.R.Civ.P. 65 and the Anti-Injunction Act.

II.

Before reaching the merits of this appeal, we must first address Phillips's contention that we are without jurisdiction to hear it. Phillips maintains that the challenged order is not an injunction but merely an effort by the district court to enforce Schreiner Bank's compliance with scheduling and discovery deadlines. ⁴ As such, Phillips argues, the order was not an appealable injunction within the meaning of 28 U.S.C. Sec. 1292(a)(1). That provision authorizes appeals from interlocutory orders that grant or deny injunctions but "does not authorize appeals from orders that compel or restrain conduct pursuant to the court's authority to control proceedings before it, even if the order is cast in injunctive terms." Hunt v. Bankers Trust Co., 799 F.2d 1060, 1066 (5th Cir.1986).

We find Phillips's argument to be without merit in light of Hamilton v. Robertson, 854 F.2d 740 (5th Cir.1988) (per curiam). There, we noted that this circuit has "long recognized a clean distinction between injunctions prohibiting proceedings in other courts, which are appealable, and orders, whether or not styled 'injunctions,' that control proceedings only in the court that issues the order." 854 F.2d at 741. Thus, "[i]f a district court acts to halt proceedings in another court, its action is indeed an injunction within the meaning of section 1292(a)(1)...." Id. (quoting Castanho v. Jackson Marine, Inc., 650 F.2d 546, 548-49 (5th Cir. Unit A Jun. 1981) (court's emphasis)).

The challenged order prevents Schreiner Bank from taking any "further action in any state or federal court." It therefore is an injunction, and section 1292(a)(1) authorizes this interlocutory appeal.

III.

Having determined that the challenged order is an injunction, we have little difficulty in concluding that it was entered in violation of Fed.R.Civ.P. 65. Rule 65(a)(1) states that "[n]o preliminary injunction shall issue without notice to the adverse party." ⁵ The courts consistently have treated rule 65(a)(1) as mandatory and have not hesitated to dissolve preliminary injunctions issued without notice or the opportunity for a hearing on disputed questions of fact and law. See, e.g., Reed v. Cleveland Bd. of Ed., 581 F.2d 570, 573 (6th Cir.1978); Consolidation Coal Co. v. Disabled Miners of S. W. Va., 442 F.2d 1261, 1269-70 (4th Cir.), cert. denied, 404 U.S. 911, 92 S.Ct. 228, 30 L.Ed.2d 184 (1971); Sims v. Greene, 161 F.2d 87, 88-89 (3d Cir.1947).

Moreover, the Supreme Court has indicated that this notice requirement is more than a mere procedural formality; instead, rule 65(b)'s stringent restrictions "on the availability of ex parte temporary restraining orders reflect the fact that our entire jurisprudence runs counter to the notion of court action taken before reasonable notice and an opportunity to be heard has been granted both sides of a dispute." Granny Goose Foods, Inc. v. Brotherhood of Teamsters, 415 U.S. 423, 439, 94 S.Ct. 1113, 1124, 39 L.Ed.2d 435 (1974). See also Reed, 581 F.2d at 573.

Here, the record establishes that Schreiner Bank was not notified or given the opportunity to respond before the order was entered; indeed, it was unaware that Phillips had sought a preliminary injunction until it received a copy of the court's order, by then a fait accompli, in the mail. Hence, the injunction was issued in violation of rule 65(a)(1) and must be dissolved.

We also find reversible error in the district court's failure to follow rule 65(c), which directs that "[n]o ... preliminary injunction shall issue except upon the giving of security by the applicant ... for the payment of such costs and damages as may be incurred or suffered by any party who is found to have been wrongfully enjoined." As we recently noted in Continuum Co. v. Incepts, Inc., 873 F.2d 801, 803 (5th Cir.1989), the bond requirement serves to protect the interests of both parties. It "assures the enjoined party that it may readily collect damages ... in the event that it was wrongfully enjoined, without further litigation and without regard to the possible insolvency" of the applicant, ⁶ and "it provides the plaintiff with notice of the maximum extent of its potential liability...." Because of the importance of the bond requirement, "failure to require the posting of a bond or other security constitutes grounds for reversal" of an injunction. Id. (citing 11 C. Wright & A. Miller, Federal Practice and Procedure Sec. 2954 at 524 (2d ed. 1982)).

While we leave it to the district court on remand to determine the proper amount of bond (if the court should elect to enter an injunction), we hold that Phillips is not entitled to a preliminary injunction unless he posts security indemnifying Schreiner Bank against the financial losses it might suffer as a result of a wrongful injunction.

IV.

Our decision is without prejudice to a renewal of Phillips's motion for injunctive relief from prospective state foreclosure proceedings and to the proper granting of such relief in a proceeding in which the requirements of rule 65 are met. We conclude, however, that the Anti-Injunction Act, 28 U.S.C. Sec. 2283, precludes any stay of the April 25 state court foreclosure proceedings, which were already pending when the district court issued its May 5 injunctive order.

The Anti-Injunction Act provides that "[a] court of the United States may not grant an injunction to stay proceedings in a State court except as expressly authorized by Act of Congress, or where necessary in aid of its jurisdiction, or to protect or effectuate its judgments." It has been interpreted consistently as an absolute bar to any federal court action ⁷ that has the effect of staying a pending state court proceeding ⁸ unless that action falls within one of the Act's three specifically designated exceptions. Vendo Co. v. Lektro-Vend Corp., 433 U.S. 623, 630, 97 S.Ct. 2881, 2887, 53 L.Ed.2d 1009 (1977); Mitchum v. Foster, 407 U.S. 225, 228-29, 92 S.Ct. 2151, 2155, 32 L.Ed.2d 705 (1972).

We reject Phillips's rather inventive argument...