UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-60226
Summary Calendar
Bennie Whitehead, et al.,
Plaintiffs,
versus
Food Max of Mississippi, Inc., et al.,
Defendants,
K-Mart Corporation,
Defendant-Appellee,
versus
Paul S. Minor,
Appellant.
Appeal from the United States District Court
for the Southern District of Mississippi
(3:95-CV-827-WS)
December 29, 1999
Before JOLLY, JONES, SMITH, Circuit Judges.
PER CURIAM:*
This is an appeal from an order of sanctions entered
against appellant Minor under Fed.R.Civ.P. 11. Appellant is
plaintiffs’ counsel in an underlying negligence action against
defendant-appellee Kmart. When the district court entered a final
judgment in plaintiffs’ favor, appellant sought a Writ of Execution
and Fieri Facias to enforce the judgment. The district court
determined that appellant had pursued the Writ prematurely in order
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this
opinion should not be published and is not precedent except for the
limited circumstances set forth in 5TH CIR. R. 47.5.4.
to embarrass and harass Kmart, and it assessed as sanctions the
attorneys’ fees Kmart incurred in opposing the premature execution
of judgment. Concluding that this appeal is likewise premature, we
dismiss.
This Court has jurisdiction over final decisions of
district courts. 28 U.S.C. § 1291. However, the Supreme Court has
recently held that an order of sanctions pursuant to the Federal
Rules of Civil Procedure is not a “final decision” under § 1291.
See Cunningham v. Hamilton County, Ohio, 119 S.Ct. 1915, 1923
(1999) (holding that a sanctions order imposed under Fed.R.Civ.P.
37(a)(4) is not a final decision under § 1291). This ruling
buttresses the general rule in the Fifth Circuit that an attorney
must await the end of litigation in the district court to appeal a
sanctions award. See Click v. Abiline National Bank, 822 F.2d 544
(5th Cir. 1987) (dismissing an appeal of a sanctions award because
it was not “final” under § 1291).
The underlying litigation here, Whitehead v. Food Max of
Mississippi, Inc., is on remand to the district court. The
district court rendered judgment on the jury verdict on September
3, 1999, but defenant Kmart filed a Motion for New Trial, or in the
Alternative, for Remittur on September 15, 1999. Because the
district court has yet to dispose of this motion, the litigation is
not “final” for purposes of § 1291. As a result, the district
court’s sanctions order is not now appealable.
Appellant contends, however, that the sanctions order is
appealable under the collateral order doctrine. This argument,
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however, has been foreclosed by Cunningham, 119 S.Ct. at 1920-21
(rejecting the claim that a Rule 37 sanction should be reviewable
under the collateral order doctrine and rejecting a case-by-case
approach to deciding whether an order is sufficiently collateral).
That the Supreme Court’s decision involved Fed.R.Civ.P. 37 rather
than Rule 11 does not lessen the weight of its command. See Click,
822 F.2d at 545 (“There is [] no obvious reason to differentiate
sanctions imposed under Rule 11 from the sanctions that the
district court may enter pursuant to Fed.R.Civ.P. 37").
For the foregoing reasons, this Court finds that the
district court’s Rule 11 sanctions order is not final under § 1291.
Moreover, there is no basis for mandamus relief here. Because the
district court has not yet rendered a final judgment, this appeal
is DISMISSED.
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