Hammond v. City of Junction City , 84 F. App'x 57 ( 2003 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
DEC 19 2003
TENTH CIRCUIT
PATRICK FISHER
Clerk
MARCUS R. HAMMOND, SR.,
individually and on behalf of others
similarly situated,
Plaintiff,
v. No. 02-3068
(D.C. No. 00-CV-2146-JWL)
CITY OF JUNCTION CITY, KANSAS; (Kansas)
ROD BARNES; FRED HEPLER; MIKE
RHODES; MICK WUNDER; KAY
BLANKEN; BILL LEVINSON;
RICHARD PINAIRE; GUY HOWELL;
HARRY FREWERD; MIKE FRASER;
RAY IBARRA; CURTIS VAN
NAHMEN; LLOYD PARKER; KEVIN
CONNELL,
Defendants-Appellees,
ANDERSON & ASSOCIATES, L.L.C.;
AL E. HOPE, SR.,
Appellants.
NATIONAL EMPLOYMENT LAWYERS
ASSOCIATION,
Amicus Curiae.
ORDER AND JUDGMENT*
*
This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. The court generally disfavors the
Before TACHA, Chief Circuit Judge, McWILLIAMS, Senior Circuit Judge, and
McCONNELL, Circuit Judge.
In a six count complaint, Marcus R. Hammond, Sr., individually and on behalf of
others similarly situated, brought the present action in the United States District Court for
the District of Kansas against the City of Junction City, Kansas (“City”) and 14 of its
officials based on 42 U.S.C. §1981, 42 U.S.C. §2000(e), 42 U.S.C. § 1983, 42 U.S.C. §
1985, 42 U.S.C. § 1986, and K.S.A. 44-1009. In that complaint, Hammond alleged that
he, and others, all African-American employees of the City, were “subjected to class-wide
discrimination in the terms and conditions of employment” by the City. The action was
filed for Hammond by his counsel, identified at the end of the complaint as “Anderson &
Associates, L.L.C.” The defendants later filed an answer to that complaint. After many
intervening motions filed by both the plaintiff and the defendants, the defendants filed a
motion for a protective order with a memorandum in support thereof.
In that motion, the defendants asked the court to enter a protective order requiring
Hammond’s counsel of record “to immediately cease and desist their ex parte contact of
City of Junction City, Kansas managerial personnel regarding this case . . . .” This was a
very detailed motion. The motion identified, inter alia, one “Al Hope, Director of Human
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3
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Relations, City of Junction City, Kansas,” as one of its officials who had been contacted
by Hammond’s attorneys. The motion was based on “The Code of Professional
Responsibility and the Model Rules of Professional Conduct as adopted by the Supreme
Court of Kansas.” Rule 4.2, thereof, “prohibits a lawyer from communicating ‘about the
subject of the representation with a party the lawyer knows to be represented by another
lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized
by law to do so.’” Holdren v. General Motors Corp., 13 F.Supp. 2d 1192, 1193-4 (D.
Kan. 1998). In that same motion, the City asked, inter alia, that the district court
“remov[e] counsel from any further involvement with the litigation” and that sanctions be
imposed. Hammond’s counsel filed a response to that matter.
The City’s motion for a protective order, disqualification and sanctions was
initially considered by a magistrate judge. That judge, after a hearing, held that the ex
parte communications of Hammond’s counsel with City officials violated the Kansas
Rules of Professional Conduct and that the violations warranted disqualification of
Hammond’s attorneys from the case, and an award of attorney’s fees and costs. See
Hammond v. City of Junction City, Kansas, 167 F.Supp. 2d 127l (D. Kan. 2001). In a
detailed opinion, which need not be here summarized, the magistrate judge disqualified
counsel from further representing Hammond or others, including any class member, “in
this case,” and also granted defendant’s further request for sanctions and ordered
defendant’s attorneys to file within 10 days, “a detailed affidavit outlining the reasonable
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expenses and attorney fees Defendants have incurred in obtaining this Order. . . .” As
concerns “disqualification,” the magistrate’s order read as follows:
It is further ordered that Glenn B. Brown, Denise M. Anderson, and the
firm of Anderson and Associates, LLC, are hereby disqualified from
representing Plaintiff Marcus Hammond, Sr., or any other individual
(including any class members) in this case. Glenn B. Brown, Denise M.
Anderson, and the law firm of Anderson & Associates, LLC, shall also be
prohibited from representing any class of individuals in any other action
based on the class allegations asserted in this case.
After a subsequent hearing, the magistrate denied counsel’s request that the
magistrate reconsider its disqualification order. At the same time, the magistrate stayed
its disqualification order, and deferred any ruling on whether sanctions should be imposed
until such time as the district court ruled on counsel’s objections to the magistrate’s order.
Id.After hearing, pursuant to Fed. R. Civ. P. 72(a), the district court denied counsel’s
objections to the disqualification order of the magistrate judge. Hammond v. City of
Junction City, Kansas, No. 00-2146, 2002 WL 169370 (D.Kan., Jan. 23, 2002). Still
later, the magistrate awarded the City $5000 as payment for costs incurred by the City in
order to “deter unethical conduct.” Hammond v. City of Junction City, Kansas, No. Civ.
A. 00-2146, 2002 WL 485640 (D. Kan. Mar. 29, 2002).
The district court entered its memorandum and order denying the motion for the
reconsideration of the magistrate judge’s orders on January 23, 2002. Thereafter,
Anderson & Associates filed a notice of appeal in the district court. That notice of appeal
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was captioned “Marcus R. Hammond, Sr., individually and on behalf of others similarly
situated, plaintiffs, v. City of Junction City, Kansas, et al, defendants.” The body of that
notice indicated that Hammond, Anderson & Associates, LLC, and Al E. Hope, Sr., were
appealing the disqualification orders, and matters incidental thereto, entered by the
magistrate judge and the district court. A few days later, on February 25, 2002, an
amended notice of appeal was filed by one David Hauber for Anderson & Associates,
LLC. The amended notice carried the same caption as the original notice. However, in
the body of the amended notice the following appeared: “Notice is hereby given that
Anderson & Associates, LLC, counsel for plaintiff Marcus R. Hammond, and Al E.
Hope, Sr., an interested party in the above-named case, hereby appeal to the United States
Court of Appeals for the Tenth Circuit from the Memorandum and Orders entered and
relating to the disqualification and sanctioning of counsel,” entered by both the magistrate
judge and district court.
On March 21, 2002, this court, sua sponte, entered an order tolling the filing of
briefs on the merits of the appeal and ordering the parties to file simultaneous briefs
within 21 days addressing the question of “whether the order being appealed is
immediately appealable?”, citing Richardson-Merrell, Inc. v. Koller, 472 U.S. 424(1985). Those briefs were duly filed. On July 11, 2002, this court entered a further order
reserving judgment “on the issue of appellate jurisdiction” and referring the issue to the
panel that eventually would hear the appeal on the merits. Thereafter, the parties filed
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briefs on the merits of the matters sought to be raised. The case was orally argued before
this panel on May 6, 2003. We now dismiss this appeal for lack of jurisdiction.
Hammond’s action based on discrimination by the City has not yet been tried.
Indeed, the district court has not yet certified any class that Hammond represents. Thus,
there is no contention here, as we understand it, that the present appeal is based on 28
U.S.C. § 1291, which gives a circuit court jurisdiction to hear “all final decisions” of the
district courts of the United States. Admittedly, the disqualification order of the
magistrate judge in the instant case, which the district court later declined to change, is
not a “final decision” on the merits. However, a “small class” of so-called
“collateral orders” of a district court which “finally determine claims of right separable
from, and collateral to, rights asserted in the action, too important to be denied review and
too independent of the cause itself to require that appellate consideration be deferred until
the whole case is adjudicated,” were held to be “immediately appealable.” Cohen v.
Beneficial Indus. Loan Corp., 337 U.S. 541, 546 (1949).1
So, whether we presently have appellate jurisdiction to now review the
disqualification order entered in the instant case turns on whether the present case is
controlled by Cohen, or, on the contrary, the present case comes under the general rule
1
At issue in Cohen was the validity of a state statute requiring that in a
stockholder’s derivative action in which the stockholder owned less than 5% of the value
of all outstanding shares and had a market value of less than $50,000.00, the stockholder
was required to give security for reasonable expenses, including counsel fees which the
defendant corporation may incur.
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that our appellate jurisdiction is only from “final judgments” of a district court. We
believe that question is resolved by Richardson-Merrell, Inc. v. Koller, 472 U.S. 424(1985).
In Richardson-Merrell, supra, the Supreme Court, with Stevens, J., dissenting,
spoke as follows:
We hold that orders disqualifying counsel in civil
cases, like orders disqualifying counsel in criminal cases and
orders denying a motion to disqualify in civil cases, are not
collateral orders subject to appeal as “final judgments” within
the meaning of 28 U.S.C. §1291.
Id. at 441.
Counsel recognizes the general rule that a disqualification order in a civil case, as
well as in a criminal case, is not a so-called “collateral order” and is, therefore, not
appealable until after a judgment on the merits which finally disposes of all issues. The
contention of counsel is, as we understand it, that the disqualification order in the instant
case is “too broad” and is therefore immediately appealable. We are unwilling to create
such an exception to the rule of Richardson-Merrell that disqualification orders in a civil
case are not immediately appealable.
Counsel also suggests that the present appeal is, in effect, an appeal from an
injunction, which under 28 U.S.C. § 1292(a)(1) is immediately appealable. We do not
believe that the disqualification order in the instant case is an “injunction,” as that word is
used is 28 U.S.C. § 1292(a)(1). If, as counsel suggests, this be an injunction, then the
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disqualification order in Richardson-Merrell was also an injunction. And Richardson-
Merrell holds rather clearly and unequivocally that a disqualification order is not
immediately appealable, and may only be appealed, and reviewed, after trial on the
merits. In Weeks v. Independent School Dist. No. I-89 of Oklahoma County, OK, Bd. of
Educ., 230 F.3d 1201, 1207 (10th Cir. 2000), cert. denied, 532 U.S. 1020 (2001), we
held that a disqualified attorney in a civil case has standing to appeal, after trial, the
disqualification order.
Appeal dismissed.2
Entered for the Court
Robert H. McWilliams
Senior Circuit Judge
The City suggests that it be awarded attorney’s fees and costs incurred in this
2
appeal. If such be deemed a request, it is denied.
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