U.S. v. 789 Cases of Latex Surgeon Gloves

• Decision Date: 30 December 1993
• Docket Number: No. 93-1554,93-1554
• Parties: UNITED STATES of America, Plaintiff, Appellee, v. 789 CASES OF LATEX SURGEON GLOVES, Defendant, Appellee, Harry Anduze-Montano, Appellant.
• Court: U.S. Court of Appeals — First Circuit

Page 12

13 F.3d 12

UNITED STATES of America, Plaintiff, Appellee, v. 789 CASES OF LATEX SURGEON GLOVES, Defendant, Appellee, Harry Anduze-Montano, Appellant.

No. 93-1554.

United States Court of Appeals, First Circuit.

Submitted Sept. 14, 1993.

Decided Dec. 30, 1993.

Guillermo Ramos Luina, on brief, for appellant.

Before BREYER, Chief Judge, TORRUELLA and SELYA, Circuit Judges.

TORRUELLA, Circuit Judge.

The question before us is whether the district court, under its inherent or supervisory powers, properly ordered an attorney to pay the court reporter for a trial transcript. We conclude the order must be reversed.

I.

Appellant is an attorney who represented a claimant in a forfeiture action. At the close of the 13-day non-jury trial in that case, the court asked the reporter to prepare the transcript on an expedited basis so that the parties could use it in preparing post-trial memoranda. Several months later, before the district court had rendered any decision, appellant moved to withdraw explaining that he had been unable to communicate with his client, he had not been paid for his services, and the client had not produced the funds for the trial transcript. The district court judge issued an order holding the motion to withdraw in abeyance until new counsel filed an appearance. Three weeks later, the court reporter asked the court to order appellant personally to pay $4,519 for the trial transcript he had ordered, but not yet picked up. Appellant filed no opposition to the court reporter's motion, and a month later the judge issued an order requesting appellant to pay the reporter within the week. ¹ The same day, the judge rendered his decision in the forfeiture action, found against appellant's client, and ordered the articles destroyed. The next month, the court reporter said she had not been paid and asked the court to enforce its August 19 order. Appellant opposed and sought reconsideration of the August 19 order. He explained that the transcript had been ordered on behalf of his client, but he had been unable to collect either his own fee or the transcript amount. Moreover, he argued that the court lacked jurisdiction over him with respect to the demand for payment.

The district court rejected appellant's jurisdictional argument, explaining, without citation to any authority, as follows:

The Court's power to order an attorney to pay for stenographic transcripts which he has ordered from the official court reporter stems from the summary jurisdiction possessed by courts over attorneys as their officers. The courts have always possessed jurisdiction to compel an attorney to observe the duties incident to his professional relations towards his clients, and towards the other officers of the Court, including court reporters. It is a court's right and duty to supervise attorneys and court reporters in their actions pertaining to matters concerning litigation before the court, as they are both officers of the court. Thus, the Court has jurisdiction over attorney Anduze even though he has not been served with process.

United States v. 789 Cases of Latex Surgeons' Gloves, 826 F.Supp. 589, 590 (D.P.R.1993). With regard to the merits, the court acknowledged the existence of contrary views, but adopted the following rule:

[T]he Court believes that in the absence of express notice to the contrary, court officials and persons connected, either directly or indirectly with the progress of litigation, may safely regard themselves as dealing with the attorney, rather than with the client.... There is nothing unfair about this rule, the Court agrees with [ Monick v. Melnicoff, 144 A.2d 381 (D.C.Mun.Ct.App.1958) ] in that:

If an attorney in ordering a transcript or a brief does not intend to bind himself personally, he may avoid responsibility by making his position clear. The reporter ... then on notice of the nonliability of the attorney, may take such steps as he feels are necessary for his protection before extending credit to a client whose credit standing and responsibility are often wholly unknown to him.

789 Cases, 826 F.Supp. at 590-91. While neither side had cited any Puerto Rico law on the subject, the court did not determine how a Puerto Rico court would decide the contractual dispute because it believed the matter could be "resolved independently of local law," id., at 590 n. 3, and it ordered appellant to pay the court reporter. ²

Appellant has now appealed from the May 12, 1993 payment order.

II.

We deal first with a jurisdictional question. The court reporter argues no timely appeal from the final payment order has been filed and hence we should dismiss the appeal. She contends that the payment order was the court's August 19, 1992 order quoted in note one, that appellant's motion for reconsideration, filed on September 22, 1992 past the period provided in Rule 59(e), would not have tolled the time for appealing from the August 19, 1992 under the version of Fed.R.App.P. 4(a)(4) in effect prior to December 1, 1993; and that appellant's May 24, 1993 notice of appeal from the court's May 12, 1993 order denying reconsideration and ordering payment does not bring before us the August 19, 1992 order. Under the principle that a post-judgment motion asking the court to change its disposition solely because of legal error must be brought under Rule 59(e) within the rule's 10-day period, Rodriquez-Antuna v. Chase Manhattan Bank Corp., 871 F.2d 1, 2 (1st Cir.1989) (dispute over how statute of limitations should be computed not cognizable under Rule 60(b)); Silk v. Sandoval, 435 F.2d 1266, 1267-68 (1st Cir.) ("If the court merely wrongly decides a point of law, that is not 'inadvertence, surprise, or excusable neglect' " within the meaning of Rule 60(b)(1)), cert. denied, 402 U.S. 1012 (1971), the appeal from the May 12, 1993 order would avail appellant nothing, the argument would continue.

We disagree for two reasons. First, the August 19, 1992 order was arguably precatory. It did not clearly direct payment, but rather asked appellant to please pay the reporter, a phrasing which may have led appellant to believe the directive did not carry the force of a normal court order. Second,...