From Casetext: Smarter Legal Research

Cato v. Fresno City

United States Court of Appeals, Ninth Circuit
Aug 17, 2000
220 F.3d 1073 (9th Cir. 2000)

Summary

holding that the court "can assume jurisdiction based on a prematurely filed notice of appeal when ‘subsequent events can validate prematurely filed appeal’ " (quoting Anderson v. Allstate Ins. Co. , 630 F.2d 677, 681 (9th Cir. 1980) )

Summary of this case from United States v. Swenson

Opinion

No. 96-17245

Argued and Submitted December 10, 1999 — San Francisco, California

Filed August 17, 2000

COUNSEL

Michael G. Marderosian, Marderosian, Swanson, Oren Paboojian, Fresno, California, pro per for the appellant.

No appearance for the plaintiff-appellee.

Appeal from the United States District Court for the Eastern District of California, Garland E. Burrell, District Judge, Presiding. D.C. No. CV-94-05045-GEB/DLB.

Before: James R. BROWNING, Pamela Ann RYMER, and Andrew J. KLEINFELD, Circuit Judges.

PER CURIAM Opinion.


OPINION


The question is whether an order imposing sanctions against an attorney pursuant to Fed.R.Civ.P. 16(f) is immediately appealable. Applying the principles established in Cunningham v. Hamilton County, 527 U.S. 198 (1999) (holding that sanctions orders under Fed.R.Civ.P. 37(a)(4) are not immediately appealable), we hold that such orders are appealable only after final judgment has been entered in the underlying action.

Rule 37 provides generally for the use of sanctions during the discovery process. See Fed.R.Civ.P. 37. Subsection (a)(4) of Rule 37 provides for the imposition of monetary sanctions against persons unjustifiably resisting discovery. See Fed.R.Civ.P. 37(a)(4). Rule 16 addresses pretrial conferences, scheduling and case management. See Fed.R.Civ.P. 16(a) — (e). Subsection (f) provides for the imposition of sanctions on parties or their attorneys for failure to comply with pretrial orders. See Fed.R.Civ.P. 16(f).

I.

Counsel of record for defendants appeals from an order imposing sanctions under Fed.R.Civ.P. 16(f). After issuing a series of orders to show cause why counsel should not be sanctioned for late filings and other violations of the final pretrial order, the district court sanctioned the attorney $7500 pursuant to Fed.R.Civ.P. 16(f). The attorney appealed within thirty days of the issuance of the sanctions order. After the sanctions order issued, but prior to the close of the underlying case, the attorney was removed as counsel for defendants. Judgment in the underlying case was entered for defendants some time later.

Title 28 U.S.C. § 1291 vests courts of appeals with jurisdiction over appeals from "final decisions of the district courts." 28 U.S.C. § 1291. In Cunningham v. Hamilton County, the Supreme Court held that an order imposing sanctions on an attorney pursuant to Fed.R.Civ.P. 37 is not a "final decision" under 28 U.S.C. § 1291 and does not fall under the collateral order doctrine exception to § 1291, even when the attorney no longer represents any party in the case. 527 U.S. 198, 200 (1999). The collateral order doctrine provides an exception to § 1291 for " `decisions that are conclusive, that resolve important questions separate from the merits, and that are effectively unreviewable on appeal from the final judgment in the underlying action.' " Id. at 204 (quoting Swint v. Chambers County Comm'n, 514 U.S. 35, 42 (1995)). The Court explained that, although Rule 37 sanctions orders are conclusive, they "often will be inextricably intertwined with the merits of the action" and are not "effectively unreviewable" on appeal after final judgment in the underlying case. Id. at 205-07. Cunningham emphasized that allowing immediate appeal of Rule 37 sanctions orders would undermine the final judgment rule by interfering with trial judges' discretion to structure sanctions and permitting piecemeal appeals. See id. at 209. The reasons underlying Cunningham's bar against immediate appeal from Rule 37 sanctions orders apply equally to Rule 16 sanctions orders. Defendants' attorney's appeal from the district court's sanctions order was therefore premature.

However, we can assume jurisdiction based on a prematurely filed notice of appeal when "subsequent events can validate [the] prematurely filed appeal." Anderson v. Allstate Ins. Co., 630 F.2d 677, 681 (9th Cir. 1980); see Eastport Assocs. v. City of Los Angeles (In re Eastport Assocs.), 935 F.2d 1071, 1075 (9th Cir. 1991). We take "a pragmatic approach to finality in situations where events subsequent to a nonfinal order fulfill the purposes of the final judgment rule." Dannenberg v. Software Toolworks, Inc., 16 F.3d 1073, 1075 (9th Cir. 1994). The defect in the defendants' attorney's immediate notice of appeal (under the new rule of Cunningham) has been cured by the entry of final judgment in the underlying action. See Anderson, 630 F.2d at 681 ("There is no danger of piecemeal appeal confronting us if we find jurisdiction here, for nothing else remains in the federal courts."); In re Eastport Assocs., 935 F.2d at 1075. We therefore exercise jurisdiction over this appeal. In a separately filed memorandum disposition, we conclude that the attorney's objection to the amount of the sanction is without merit.

AFFIRMED.


Summaries of

Cato v. Fresno City

United States Court of Appeals, Ninth Circuit
Aug 17, 2000
220 F.3d 1073 (9th Cir. 2000)

holding that the court "can assume jurisdiction based on a prematurely filed notice of appeal when ‘subsequent events can validate prematurely filed appeal’ " (quoting Anderson v. Allstate Ins. Co. , 630 F.2d 677, 681 (9th Cir. 1980) )

Summary of this case from United States v. Swenson

finding that premature appeal of order sanctioning counsel $7,500 was cured by subsequent entry of judgment

Summary of this case from Sumida & Tsuchiyama, LLLP v. Kotoshirodo (In re Kyung Sook Kim)

affirming Rule 16(f) sanction in the amount of $7,500 against attorney who violated district court's pretrial order

Summary of this case from Schlicht v. U.S.

reviewing an order sanctioning attorneys

Summary of this case from Martinez v. Barr

involving a notice of appeal filed within thirty days of the sanctions order, but an unspecified number of days before final judgment; the court held that the defect in the immediate notice of appeal was cured by the later entry of final judgment

Summary of this case from Richards v. Holsum Bakery Inc.

applying Cunningham to bar immediate review of sanctions imposed under Federal Rule of Civil Procedure 16(f), which authorizes a court to impose sanctions for noncompliance with scheduling or pretrial conference orders

Summary of this case from Klestadt & Winters, LLP v. Cangelosi

In Cato, we exercised jurisdiction over an appeal of a Rule 16(f) sanctions order that was filed prior to the entry of judgment.

Summary of this case from Gonzales v. Texaco Inc.

In Cato v. Fresno City, 220 F.3d 1073, 1074 (9th Cir. 2000), this court stated that the "reasons underlying Cunningham's bar against immediate appeal from Rule 37(a) sanctions orders apply equally to Rule 16 sanctions orders."

Summary of this case from Stanley v. Woodford
Case details for

Cato v. Fresno City

Case Details

Full title:RALPH S. CATO, Plaintiff-Appellee, v. FRESNO CITY; DARYL BALCH…

Court:United States Court of Appeals, Ninth Circuit

Date published: Aug 17, 2000

Citations

220 F.3d 1073 (9th Cir. 2000)

Citing Cases

Sumida & Tsuchiyama, LLLP v. Kotoshirodo (In re Kyung Sook Kim)

Other cases, however, have applied the rule, oftentimes without even addressing the potential relevance of…

Gonzales v. Texaco Inc.

Id. (discussing Cato v. Fresno City, 220 F.3d 1073, 1074 (9th Cir. 2000) and Am. Ironworks Erectors, Inc. v.…