Robinson v. Tanner

• Decision Date: 09 September 1986
• Docket Number: No. 85-7456,85-7456
• Citation: 798 F.2d 1378
• Parties: Lewis G. ROBINSON, Plaintiff-Appellant, v. Thomas Jeff TANNER, Individually and in his official capacity as Building Director of the Inspection Services Dept. of the City of Decatur, Alabama, Defendant-Appellee. Non-Argument Calendar.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1378

798 F.2d 1378

5 Fed.R.Serv.3d 1376

Lewis G. ROBINSON, Plaintiff-Appellant, v. Thomas Jeff TANNER, Individually and in his official capacity as Building Director of the Inspection Services Dept. of the City of Decatur Alabama, Defendant-Appellee.

No. 85-7456

Non-Argument Calendar.

United States Court of Appeals Eleventh Circuit.

Sept. 9, 1986.

James Whitmire, Dan F. Nelson, Decatur, Ala., for defendant-appellee.

Appeal from the United States District Court for the Northern District of Alabama.

Before FAY, JOHNSON and CLARK, Circuit Judges.

PER CURIAM:

Robinson, plaintiff in this civil rights action against Tanner and other defendants, appeals from an order of the district court sanctioning him for his failure to appear at a deposition. Because we find that this court lacks jurisdiction under Rule 4, Fed.R.App.P., to hear this matter, we dismiss the appeal without deciding its merits.

During the discovery phase of this case, Robinson failed to appear at a duly noticed deposition and Tanner moved for court-imposed sanctions. Pursuant to that motion, the district court ordered Robinson to appear at the next deposition scheduled by Tanner and pay $200 attorney's fees to Tanner's attorneys for their services relating to the unsuccessful deposition. The court stated that if Robinson failed to pay this sum by July 27, 1985 or failed to appear at the next deposition, the court would "promptly entertain a motion to dismiss by defendant as a well deserved sanction." Tanner filed a notice of deposition on July 11, stating that Robinson would be deposed on August 7. On July 15, Robinson filed a notice of appeal from the June 27 sanctions order. On July 30, the court ordered Robinson to appear at the August 7 deposition and warned that sanctions, possibly dismissal, would result for failure to appear. The court also noted that Robinson's notice of appeal did not deprive that court of jurisdiction as the notice was taken from a non-appealable order. ¹

Subsequently, Tanner filed a motion to dismiss under Fed.R.Civ.P. 37(d) claiming that Robinson failed to appear at the August 7 deposition and failed to pay the $200 sanction. On November 20, the court dismissed the action citing the above facts as justification. No new notice of appeal was filed.

Where it appears that this court may lack jurisdiction to review an action of the district court, we are obligated to review jurisdiction before proceeding to the substance of the appeal. State Establishment for Agricultural Product Trading v. M/V Wesermunde, 770 F.2d 987, 989 (11th Cir.1985). Thus, it must first be decided if the order compelling Robinson to appear at a deposition and sanctioning him $200 was an appealable interlocutory order. If not, then the notice of appeal was premature and it must be determined whether the subsequent order of dismissal cured the premature notice of appeal.

I. The Portion of the Order Compelling Robinson to Appear at a Deposition is not Immediately Appealable.

In general, an order compelling discovery is interlocutory and not an appealable final order. Branca by Branca v. Security Benefit Life Insurance Co., 773 F.2d 1158, 1165 (11th Cir.1985), modified on other grounds, 789 F.2d 1511 (11th Cir.1986). This rule extends to orders compelling a party to submit to depositions. See Honig v. E.I. DuPont de Nemours & Co., 404 F.2d 410 (5th Cir.1968) (an order requiring a non-party witness to submit to a deposition was found not immediately appealable); ² Carr v. Monroe Manufacturing Co., 431 F.2d 384, 386 (5th Cir.1970), cert. denied, 400 U.S. 1000, 91 S.Ct. 456, 27 L.Ed.2d 451 (1971) (quoting 6 Moore, Federal Practice, p 54.16 (2d ed. 1966), now superseded by 9 Moore, p 110.13 (2d ed. 1985)) (dictum; an order directing a party to testify or produce documents in response to a subpoena or a notice is not immediately appealable).

Although there are exceptions to this rule, ³ Robinson has failed to show, and the record does not indicate, that any apply to the present case.

II. The Portion of the Order Requiring Robinson to Pay Attorney's Fees as a Sanction is not Immediately Appealable.

Although this issue is one of first impression for this court, we agree with those circuits that have held that orders imposing sanctions for abuses of discovery ⁴ are not appealable until after final judgment except under limited circumstances. Aurora Bancshares Corp. v. Weston, 777 F.2d 385, 386 (7th Cir.1985); Meche v. Dan-Tex International, Inc., 681 F.2d 264, 265 (5th Cir.1982); In re Underwriters at Lloyd's, 666 F.2d 55, 58 (4th Cir.1981); 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. 102, 66 L.Ed.2d 38 (1980); In re Attorney General of United States, 596 F.2d 58, 61-62 (2d Cir.), cert. denied, 444 U.S. 903, 100 S.Ct. 217, 62 L.Ed.2d 141 (1979); but see Ohio v. Arthur Andersen & Co., 570 F.2d 1370, 1372 (10th Cir.), cert. denied, 439 U.S. 833, 99 S.Ct. 114, 58 L.Ed.2d 129 (1978) (order imposing preclusionary and monetary sanctions for non-compliance with discovery orders was final and appealable); ⁵ Miller v. Reighter, 581 F.2d 1181, 1182 (8th Cir.1978) (ordinarily, a discovery order directed to the production of documents, and which imposes no sanctions, is not a final order appealable under Sec. 1291). ⁶

The limited consequences under which discovery sanctions orders are immediately appealable can be ascertained by determining the applicability of the various statutory and jurisdictional exceptions to the final judgment rule. See, e.g., 28 U.S.C. Sec. 1292(a), (b); Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). By following this procedure, the courts have found discovery sanction orders immediately appealable where the sanction consisted of dismissal of the suit or a denial or grant of an injunction, Aurora Bancshares, 777 F.2d at 386; Branca by Branca, 773 F.2d at 1165, the sanction was against a non-party who might not be able to obtain review from a final judgment, Eavenson, Auchmuty & Greenwald v. Holtzman, 775 F.2d 535, 538-39 (3d Cir.1985); Frazier v. Cast, 771 F.2d 259, 261-62 (7th Cir.1985); David v. Hooker, Ltd., 560 F.2d 412, 416-17 (9th Cir.1977), or the sanction would cause irreparable injury to the appellant, Mulay Plastics, Inc. v. Grand Trunk Western Railroad, 742 F.2d 369, 370-71 (7th Cir.1984), cert. denied, --- U.S. ----, 105 S.Ct. 1409, 84 L.Ed.2d 798 (1985). ⁷ The former Fifth Circuit found a discovery sanction order appealable where the sanction was a default judgment against one of several defendants, a corporation which failed to produce a corporate officer for deposition. Diaz v. Southern Drilling Corp., 427 F.2d 1118, 1122-23 (5th Cir.), cert. denied, 400 U.S. 878, 91 S.Ct. 118, 27 L.Ed.2d 115 (1970). Prompt review was found necessary to protect funds claimed by the dismissed party which would be subject to the claims of an intervening party unless the default judgment was vacated on appeal. Id. at 1123.

None of the above exceptions apply to the instant order as it did not involve an injunction or dismissal, Robinson is a party to the action who would be able to effectively appeal from a final judgment, and he has not alleged that paying the $200 would cause him irreparable injury. Diaz is also inapplicable as the instant case does not involve funds which might be irretrievably lost. Thus, the general rule that forbids the immediate appeal of discovery sanction orders applies.

III. The Premature Notice of Appeal was not Cured by the Subsequent Final Judgment.

Because the order was not immediately appealable, Robinson's notice of appeal was premature. There is some confusion in the case law of this circuit concerning the effect a subsequent final judgment has on a premature notice of appeal. The confusion stems from conflicting language found in Jetco Electronic Industries v. Gardiner, 473 F.2d 1228 (5th Cir.1973), and United States v. Taylor, 632 F.2d 530 (5th Cir.1980). In Jetco, it was found that a premature appeal was reviewable where a subsequent judgment of the district court effectively terminated the litigation. Jetco, supra, at 1231. No new notice of appeal was filed after the subsequent judgment in Jetco. Id. This rule has played an active part in the jurisprudence of this court, the former Fifth Circuit, and various other circuits. See Bank South Leasing, Inc. v. Williams, 778 F.2d 704, 705 (11th Cir.1985); Rivers v. Washington County Board of Education, 770 F.2d 1010, 1011 (11th Cir.1985); Kleiner v. First National Bank of Atlanta, 751 F.2d 1193, 1199 n. 13 (11th Cir.1985); Martin v. Campbell, 692 F.2d 112, 114 (11th Cir.1982); Mesa Petroleum Co. v. Coniglio, 629 F.2d 1022, 1029 n. 7 (5th Cir.1980); Tower v. Moss, 625 F.2d 1161, 1164-65 (5th Cir.1980); see, e.g., Gillis v. United States Department of Health and Human Services, 759 F.2d 565, 569 (6th Cir.1985); Pireno v. New York State Chiropractic Association, 650 F.2d 387, 389-90 n. 4 (2d Cir.1981), aff'd on other grounds, 458 U.S. 119, 102 S.Ct. 3002, 73 L.Ed.2d 647 (1982); Anderson v. Allstate Insurance Co., 630 F.2d 677, 680-81 (9th Cir.1980).

In Taylor, it was held that a subsequent final judgment does not retroactively validate a premature notice of appeal. Taylor, 632 F.2d at 531. The premature notice in Taylor was filed from a non-appealable interlocutory order and no new notice of appeal was filed from the final judgment. Id. This rule has been used in at least three other decisions of this court. General Television Arts, Inc. v. Southern Railway, 725 F.2d 1327, 1331 (11th Cir.1984) (citing Taylor; no new notice filed after final judgment); Aeromar, C. Por A. v. Department of Transportation, 767 F.2d 1491, 1494 (11th Cir.1985) (citing General...