NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUN 12 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
In re: CHASE BANK USA, N.A. "CHECK No. 13-15637
LOAN" CONTRACT LITIGATION,
D.C. No. 3:09-md-02032-MMC
______________________________
DANIEL J HERBISON,
MEMORANDUM*
Plaintiff - Appellant,
v.
CHASE BANK USA, N.A.,
Defendant - Appellee.
Appeal from the United States District Court
for the Northern District of California
Maxine M. Chesney, Senior District Judge, Presiding
Submitted June 10, 2015**
San Francisco, California
Before: SILVERMAN, GOULD, and HURWITZ, Circuit Judges.
Daniel Herbison was held in civil contempt by the district court for violating
an order approving a class action settlement. He appeals from the contempt finding
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
the fee award, but dismiss the appeal from the contempt finding for lack of appellate
jurisdiction.
1. Chase argues that we lack jurisdiction to review the fee award because the
stipulated order fixing the fee amount was not mentioned in the notice of appeal.
But the decision to impose fees was explained in the earlier contempt order, which is
named in the notice of appeal, and Herbison challenged the fee award in his opening
brief.
decision. See Pope v. Sav. Bank of Puget Sound, 850 F.2d 1345, 1347 (9th Cir.
1988).
2. There was no abuse of discretion in awarding fees. See Perry v.
onnell, 759 F.2d 702, 706 (9th Cir. 1985).
3. The general rule is that when a contempt proceeding is the sole remaining
proceeding before the district court, a contempt order becomes final for purposes of
nce the finding of contempt has been made and a sanction imposed
Shuffler v. Heritage Bank, 720 F.2d 1141, 1145 (9th Cir. 1983). We have found a
contempt order final when imposition of sanctions has been stayed pending appeal,
see Stone v. City & Cnty. of San Francisco, 968 F.2d 850, 854-55 (9th Cir. 1992),
but here, as in SEC v. Hickey, no sanctions have accrued and Herbison has purged
2
the contempt, 322 F.3d 1123, 1127-28 (9th Cir. 2003). We therefore lack
jurisdiction to review the contempt finding.
AFFIRMED IN PART, DISMISSED IN PART.
3
FILED
Herbison v. Chase Bank, USA, N.A., 13-15637 JUN 12 2015
MOLLY C. DWYER, CLERK
SILVERMAN, Circuit Judge, concurring: U.S. COURT OF APPEALS
I would affirm the district court across the board. In my view, we have
jurisdiction to review both the contempt order and the attorneys fees award.
Conditional sanctions are appealable as long as the order imposing them has
the requisite “‘operativeness and consequence’ required for finality under § 1291.”
Stone v. City and Cnty. of San Francisco, 968 F.2d 850, 854 (9th Cir. 1992)
(quoting Dickinson v. Petroleum Conversion Corp., 338 U.S. 507, 511 (1950)).
The contempt order here was plainly final; the fact that Herbison complied prior to
the date on which the district court’s financial sanctions would have taken effect
does not change the consequence of his having to dismiss the New Mexico action.
Nor is the issue moot. “Ordinarily” the purging of civil contempt renders
moot any appeal of the contempt order, but not always. S.E.C. v. Hickey, 322 F.3d
1123 (9th Cir.), opinion amended on denial of reh’g, 335 F.3d 834 (9th Cir. 2003)
(quoting Thomassen v. United States, 835 F.2d 727, 731 (9th Cir. 1987)). An
exception exists “where compliance does not prevent this court from fashioning
adequate relief, [because then] a live controversy exists.” Davies v. Grossmont
Union High Sch. Dist., 930 F.2d 1390, 1394 (9th Cir. 1991). That exception
applies here. If we were to rule in Herbison’s favor, “adequate relief” would be
available to him: specifically, he would be able to renew or reinstate his New
-2-
Mexico lawsuit. The state court specifically left open the possibility that Herbison
could reinstate the case he was forced to dismiss, if he were to win this appeal.
Reaching the merits, I would hold that the district court clearly did not abuse
its discretion when it found Herbison in contempt of its order approving the
nationwide class’s final settlement with Chase, or in awarding attorney’s fees to
Chase. I would affirm both rulings.