IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________
No. 96-30036
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CHRISTINA M. GOUDEAU,
Plaintiff-Appellant,
VERSUS
DENTAL HEALTH SERVICES, INC.,
d/b/a Landmark Dental Care,
JAMES L. JEANSONNE,
BARRY D. GATHRIGHT,
CLEVELAND C. CARPENTER III,
and MYRON D. CULBERSON,
Defendants-Appellees.
_________________________
Appeal from the United States District Court
for the Middle District of Louisiana
(93-CV-449)
_________________________
August 29, 1997
Before JOLLY, SMITH, and DENNIS, Circuit Judges.
JERRY E. SMITH, Circuit Judge:*
Christina Goudeau appeals a FED. R. CIV. P. 11 sanction barring
her from introducing the testimony of a witness at trial. We
dismiss the appeal.
*
Pursuant to 5TH CIR. R. 47.5, we have determined that this opinion should
not be published and is not precedent except under the limited circumstances set
forth in 5TH CIR. R. 47.5.4.
2
I.
This case arises out of Goudeau's employment as a dental
assistant at Dental Health Services, Inc. (“Dental Health”). In
1990, Goudeau and another dental assistant, Darla Mickelborough,
began to suspect that a management program Dental Health had
purchased from a California consulting company was actually a
vehicle of indoctrination for the Church of Scientology. According
to Goudeau, when they expressed concern about this, they were
discriminated against and, at least in her case, ultimately
terminated.
Goudeau hired attorney Durward Casteel and filed a religious
discrimination complaint with the EEOC, which assigned investigator
Rosabela Miranda to the case. On July 10, 1992, Mickelborough came
to Casteel's office and was interviewed over the telephone by
Miranda. At the end of the interview, Casteel told Miranda and
Mickelborough that he would have the tape of it transcribed and
reviewed by Mickelborough for accuracy. Casteel subsequently made
a number of substantive changes to the transcript and had Mickel-
borough approve it as altered, although without specifically
indicating to her what he had changed.
Goudeau obtained a right-to-sue letter from the EEOC and filed
suit against Dental Health in May 1993. Dental Health filed a
motion to dismiss under FED. R. CIV. P. 12(b)(6), which the district
court converted into a motion for summary judgment upon its
consideration of material outside the complaint. In opposition to
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the motion, Goudeau submitted an affidavit by Mickelborough to
which the altered transcript was attached.
The “transcript,” despite having been substantively changed in
a number of places, still appeared in the question-and-answer form
of an actual interview. Goudeau's counsel also submitted a
separate affidavit in which he stated: “On July 10, 1992, I
participated in a telephone conference with the EEOC investigator,
Rosabela Miranda, and Darla Mickelborough, a former employee of
[Dental Health]. Mrs. Mickelborough executed an affidavit which
incorporated a transcript of that telephone conference.” Both
affidavits were sworn.
The district court denied the motion for summary judgment on
February 22, 1994, and the case proceeded to discovery. On
July 22, 1995, Dental Health deposed Mickelborough and discovered
that the “transcript” that had been submitted in opposition to
summary judgment was actually an embellished version of Mickel-
borough's interview. Dental Health moved for rule 11 sanctions on
August 31. The district court submitted to a magistrate judge both
the sanctions issue and the separate question of whether Dental
Health was an “employer” within the meaning of title VII of the
Civil Rights Act of 1964 § 701(b), 42 U.S.C. § 2000e(b).
On October 10, 1995, the district court dismissed the suit for
lack of subject matter jurisdiction, adopting the magistrate
judge's conclusion that Dental Health did not fall within
title VII's definition of “employer.” Goudeau filed a notice of
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appeal from this judgment on November 6. On December 4, the court
adopted the magistrate judge's recommendation that the motion for
sanctions be denied but ordered that “as a sanction for violating
Rule 11, the plaintiff be barred from introducing the testimony of
Darla Mickelborough, in any form, at any trial or evidentiary
hearing in this matter. On January 4, 1996, Goudeau entered a
separate notice of appeal from that order.
We stayed Goudeau's first appeal (the one challenging the
dismissal for lack of subject matter jurisdiction) when the Supreme
Court agreed to hear Walters v. Metropolitan Educ. Enters.,
117 S. Ct. 660 (1997), a case presenting precisely the same issue
as to title VII's definition of “employer” that had led the
district court to dismiss the instant case. After Walters was
decided, the parties filed a joint motion to dismiss the first
appeal pursuant to FED. R. APP. P. 42(b), which this court granted
on April 17, 1997. The core of the case is thus now back before
the district court, and the previously-entered final judgment
remains in place. The second appeal, which was stayed pending the
outcome of the first, is presently before this court.
II.
Although the parties have not briefed the issue, we have a
continuing obligation to examine the basis of our jurisdiction.
See, e.g., Burt v. Ware, 14 F.3d 256, 257 (5th Cir. 1994) (per
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curiam). In particular, “[b]ecause of our limited jurisdiction, we
must always be vigilant to ensure that we have subject matter
jurisdiction, addressing the issue sua sponte if need be.” Ceres
Gulf v. Cooper, 957 F.2d 1199, 1207 n.16 (5th Cir. 1992).
“It has long been settled that a federal court has no
authority 'to give opinions upon moot questions or abstract
propositions, or to declare principles or rules of law which cannot
affect the matter in issue in the case before it.'” Church of
Scientology v. United States, 506 U.S. 9, 12 (1992) (quoting Mills
v. Green, 159 U.S. 651, 653 (1895)). That is, “[a]n actual case or
controversy must exist . . . when a suit is instituted and at all
stages of appellate review in order to avoid mootness.” Brown v.
Liberty Loan Corp., 539 F.2d 1355, 1358 (5th Cir. 1976). A
question is moot, inter alia, when “an event occurs while a case is
pending on appeal that makes it impossible for the court to grant
'any effectual relief whatever' to a prevailing party.” Church of
Scientology, 506 U.S. at 12 (quoting Mills, 159 U.S. at 653)).
The appeal of the dismissal for lack of subject matter
jurisdictionSSlack of an “employer” within the meaning of title
VII, to be preciseSShas now itself been voluntarily dismissed, and
the mandate has issued. The district court has taken no further
action on the case, and the final judgment it entered in October
1995 remains in place. But the sanction Goudeau is appealing still
goes only to the admissibility of Mickelborough's testimony at
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trial, a trial that the final judgment indicates will never take
place. That is, so long as the final judgment remains intact, the
sole effect of the sanction is to bar Goudeau from introducing
testimony at a trial that will never happen, rendering her appeal
of it moot. Because mootness is jurisdictional, we therefore must
dismiss the appeal. See, e.g., Escobedo v. Estelle, 655 F.2d 613,
614 (5th Cir. Unit A Sept. 1981) (“[M]ootness goes to the heart of
the federal courts' subject-matter jurisdiction under article III,
section 2 of the Constitution, and [] we are bound to ascertain
whether we possess that subject-matter jurisdiction whether it is
challenged by the litigants or not . . . .”).1
The appeal is DISMISSED for want of jurisdiction.
1
In the interest of judicial economy, we note that even were the final
judgment reopened and the case placed back on the trial calendar, the sanctions
would be non-appealable until the entry of a new final judgment. This court has
unambiguously held that rule 11 sanctions may not be appealed under the
collateral order doctrine. See Schaffer v. Iron Cloud, Inc., 865 F.2d 690,
691-92 (5th Cir 1989); Click v. Abilene Nat'l Bank, 822 F.2d 544, 545 (5th Cir.
1987). Although we have created an exception to this rule for certain appeals
by sanctioned attorneys, see, e.g., Chaves v. The M/V Medina Star, 47 F.3d 153,
155-56 (5th Cir. 1995), it does not apply here.
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