Sik Gaek, Incorporated v. Marcus Harris , 789 F.3d 797 ( 2015 )


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  •                                In the
    United States Court of Appeals
    For the Seventh Circuit
    No. 14-1196
    SIK GAEK, INCORPORATED,
    Plaintiff-Appellant,
    v.
    MARCUS HARRIS, et al.,
    Defendants-Appellees.
    Appeal from the United States District Court for the
    Northern District of Illinois, Eastern Division.
    No. 13 C 6624 — James F. Holderman, Judge.
    SUBMITTED APRIL 2, 2015 — DECIDED JUNE 17, 2015
    Before BAUER, POSNER, and MANION, Circuit Judges.
    BAUER, Circuit Judge. Plaintiff-appellant, Sik Gaek, Incor-
    porated, sought sanctions against defendant-appellee, Marcus
    Harris, for fees and expenses incurred in connection with
    Harris’ failure to attend a deposition in contravention of a
    court order. The district court declined to impose sanctions and
    2                                                           No. 14-1196
    closed the matter. Appellant appeals from that order.1 We
    affirm.
    I. BACKGROUND
    In 2010, appellant filed suit in the United States District
    Court for the Eastern District of New York against Daniel Kim
    and Yogi’s II, Inc., alleging trademark infringement under the
    Latham Act and various state law claims. This discovery
    dispute arises out of that pending action.
    Marcus Harris, a non-party to the underlying New York
    litigation, is a Chicago attorney who filed several trademark
    applications for Yogi’s II, Inc. On July 17, 2013, appellant
    served Harris with a subpoena issued by the Northern District
    of Illinois, requiring his deposition and documents related to
    the trademark applications he filed for Yogi’s II, Inc. The
    deposition did not take place on July 29, 2013, as scheduled.
    On September 16, 2013, appellant filed a motion to enforce
    the subpoena. The district court granted the motion at a
    hearing on October 22, 2013, and ordered Harris to attend
    the deposition and produce the documents at his office at
    12:00 p.m. on October 29, 2013. Appellant sent Harris, who was
    not present at the October 22 hearing, a copy of the order by
    mail and facsimile on October 23, 2013, and faxed a letter to
    Harris on October 28, 2013, confirming that the deposition
    would take place in accordance with the district court’s order.
    1
    Appellant also accuses the district court judge of “regionalism,” or
    regional bias. This claim is groundless and warrants no further discussion.
    No. 14-1196                                                     3
    On October 29, 2013, one of the appellant’s attorneys,
    Thomas Park, arrived at Harris’ office at 11:45 a.m. to take the
    deposition. Harris was not there. Park spoke to Harris over the
    phone and, according to Park, Harris stated that he was aware
    of the court order and would be willing to do the deposition,
    but that it would take him at least one hour or more to arrive
    at his office. Park told Harris that if he did not arrive by
    1:00 p.m. it would be treated as a “no show.” The deposition
    did not take place. Later that evening, Harris faxed a letter to
    Park stating, “I have every intention of complying with the
    court’s order … . I can be available this week to be deposed
    either telephonically or by video. Please propose times that
    work with your schedule.” Appellant did not respond to
    Harris’ letter or attempt to reschedule. Rather, on October 30,
    2013, the next day, appellant filed a motion to hold Harris in
    contempt for failing to attend the deposition on October 29,
    2013, and seeking sanctions in the form of fees and expenses in
    excess of $6,800. Harris filed an affidavit attached to his reply,
    which explained that he was on vacation the week of Octo-
    ber 22, 2013, celebrating his father’s 70th birthday with his
    family in New York City, and that he first became aware of the
    district court’s order of October 22, 2013, on October 29, 2013,
    at 12:41 p.m., when he spoke with Park on the phone. During
    that conversation, Harris claims that he told Park that he
    would rush to his office for the deposition, but would not be
    able to get there until about 2:00 p.m. According to Harris,
    Park refused to take his deposition on October 29 because he
    (Park) had to catch a train back to the airport at 1:00 p.m.
    Harris then offered to be deposed on the spot via telephone,
    but Park refused.
    4                                                    No. 14-1196
    On November 6, 2013, Harris’ attorney sent a letter to Park
    via email, facsimile transmission, regular mail, and certified
    mail. The letter stated: “Mr. Harris continues to be available for
    deposition, as he has been since he found out about this matter
    for the first time on October 29, 2013 … . Please contact me via
    email … at your earliest convenience to schedule his deposi-
    tion.” On November 8, 2013, Harris’ attorney called Park’s
    office in an attempt to reschedule the deposition; a receptionist
    informed Harris’ attorney that Park was not available but
    would call back on November 11, 2013. When Park failed to
    call Harris on November 11, 2013, Harris’ attorney sent Park
    another email that was substantially similar to the email sent
    November 6. Neither Park nor any other representative of
    appellant responded to Harris or his lawyers.
    On December 17, 2013, the district court held a hearing on
    appellant’s motion for contempt and sanctions. The district
    court ordered appellant to take and complete Harris’ deposi-
    tion that same day, and appellant did so. The court also
    ordered all pending motions, including appellant’s motion for
    contempt and fees and expenses, moot. On January 7, 2014,
    appellant filed a renewed motion for sanctions in the form of
    fees and expenses in excess of $6,800. The district court entered
    an order denying appellant’s motion on January 8, 2014, and
    closed the matter. This appeal followed.
    II. DISCUSSION
    The initial inquiry in any appeal is whether the court to
    which the appeal has been taken has jurisdiction to entertain
    the appeal. Congress has granted the United States Courts of
    Appeals jurisdiction over all final decisions of the federal
    No. 14-1196                                                        5
    district courts. See 28 U.S.C. § 1291. A final decision is one
    which ends the litigation on the merits and leaves nothing for
    the district court to do but execute the judgment. Midland
    Asphalt Corp. v. United States, 
    489 U.S. 794
    , 798 (1989). Ordi-
    narily, a pretrial discovery order, such as a refusal to impose
    discovery-related sanctions, is not final in the sense that it
    winds up the underlying lawsuit. Mulay Plastics, Inc. v. Grand
    T. W. R. Co., 
    742 F.2d 369
    , 370 (7th Cir. 1984). Strictly speaking,
    however, the finality rule is not without exceptions.
    The federal courts of appeals have recognized that a pretrial
    discovery order may constitute a final appealable order when
    issued by a district court in an ancillary proceeding, and said
    district court is not within the jurisdiction of the circuit court
    having appellate jurisdiction to review the final adjudication of
    the main action. See Natta v. Zletz, 
    379 F.2d 615
    , 618 (7th Cir.
    1967); Carter Prods., Inc. v. Eversharp, Inc., 
    360 F.2d 868
    , 872 (7th
    Cir. 1966); see also Hooker v. Continental Life Ins. Co., 
    965 F.2d 903
    , 905 (10th Cir. 1992); Micro Motion, Inc. v. Exac Corp., 
    876 F.2d 1574
    , 1576 (Fed. Cir. 1989); In re Grand Jury Proceedings,
    etc., 
    649 F.2d 387
    , 388 (6th Cir. 1981); Republic Gear Co. v. Borg-
    Warner Corp., 
    381 F.2d 551
    , 554 (2d Cir. 1967); Horizons Titanium
    Corp. v. Norton Co., 
    290 F.2d 421
    , 424 (1st Cir. 1961). Here, the
    district court order denying sanctions was issued in a jurisdic-
    tion not that of the main proceeding. Consequently, appellants
    cannot obtain effective review of the order as part of an appeal
    of a final adjudication of the main action; the Second Circuit
    lacks jurisdiction over both the district court that entered the
    order at issue and non-party Harris. Furthermore, this case was
    filed in the Northern District of Illinois solely for the purpose
    of obtaining discovery from Harris; after that object was
    6                                                     No. 14-1196
    accomplished, the district court denied appellant’s motion for
    sanctions and closed the matter, ending the ancillary litigation.
    There is nothing left for the district court to do. Rather, the
    only issue remaining is the validity of the district court’s order,
    and appellant can only obtain meaningful review of that order
    in this court. For these reasons, we hold that this court has
    jurisdiction to review the district court’s order.
    As for the merits, Federal Rule of Civil Procedure
    37(b)(2)(A) grants district courts the power to impose appropri-
    ate sanctions for violations of discovery orders. We review
    those sanctions only for an abuse of discretion. Domanus v.
    Lewicki, 
    742 F.3d 290
    , 295 (7th Cir. 2014). We do not find that
    the district court abused its discretion here.
    Appellant contends that Federal Rule of Civil Procedure
    37(b)(2)(C) mandates the assessment of fees and costs in the
    circumstances of this case. That Rule states, “the court must
    order the disobedient party … to pay reasonable expenses,
    including attorney’s fees, caused by the failure, unless the
    failure was substantially justified or other circumstances make
    an award of expenses unjust.” Fed. R. Civ. P. 37(b)(2)(C)
    (emphasis added). The qualifying language of the final clause
    makes clear that fees are not mandatory. Harris’ failure to
    attend the deposition on October 29, 2013, was an inadvertent
    and irreproachable incident. As Harris explained in his
    affidavit, he was out of town the week of October 22, 2013, and
    was not present at the hearing on October 22, 2013, where the
    district court entered the pertinent order, nor did he receive the
    letters that appellant mailed and faxed to his office regarding
    the order. When Harris first became aware of the court’s order,
    he offered to rush to his office to take the deposition as
    No. 14-1196                                                    7
    scheduled, albeit it a few hours late; appellant, however,
    refused to grant him this minor concession. Harris further
    offered to conduct the deposition on the spot by telephone, but
    appellant refused this offer as well. Thereafter, Harris reached
    out to appellant no less than four times, each time informing
    appellant that he was available to schedule the deposition at
    appellant’s earliest convenience, yet appellant did not respond
    to any of Harris’ communications. The district court was
    intimately familiar with the parties and the facts and circum-
    stances underlying this discovery dispute. The court’s decision
    not to impose sanctions for Harris’ inadvertent failure, which
    he went out of his way to rectify, did not constitute an abuse of
    discretion.
    III. CONCLUSION
    For these reasons, the district court’s order denying
    appellant’s motion for sanctions is AFFIRMED.