UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 93-2933
READING & BATES PETROLEUM COMPANY,
READING & BATES EXPLORATION COMPANY, AND
READING & BATES DRILLING COMPANY,
Plaintiffs-Appellees,
VERSUS
BENTON MUSSLEWHITE, THE LAW OFFICES OF
BENTON MUSSLEWHITE, AND PETER MANANGKALANGI,
Defendants-Appellants.
Appeal from the United States District Court
For the Southern District of Texas
( February 4, 1994 )
Before GARWOOD, SMITH and DeMOSS, Circuit Judges.
BY THE COURT:
Reading & Bates, by its Motion to Vacate Stay, asks this Court
to reconsider the order entered by a majority of this Court (Judge
Smith, dissenting) on December 21, 1993, which granted
Musslewhite's motion for stay pending appeal to a limited extent in
the following language: "The execution of the December 20, 1993
Commitment Order is stayed pending further order of this Court."
We decline to reconsider for the following reasons:
First of all, a majority of this panel believes that the stay
order granted under date of December 21, 1993 was correct. The
criteria to be used in determining whether to grant a stay of a
district court's order in this Circuit are well-settled. Because
of the pertinency to the present appeal, we quote verbatim from the
decision in United States v. Baylor Univ. Medical Ctr., 711 F.2d
38, 39 (5th Cir. 1983), as follows:
Four factors must be considered by this Court in
determining whether to stay the district court's Order
under Fed. R. App. P., Rule 8. These are: (1) whether
the movant has made a showing of likelihood of success on
the merits, (2) whether the movant has made a showing of
irreparable injury if the stay is not granted, (3)
whether the granting of the stay would substantially harm
the other parties, and (4) whether the granting of the
stay would serve the public interest. (Citations
omitted.)
However, this Court has refused to apply these factors in
a rigid mechanical fashion. Indeed, in Ruiz v. Estelle,
650 F.2d 555 (5th Cir. 1981), this Court held that the
movant `need only present a substantial case on the
merits when a serious legal question is involved and show
that the balance of equities weighs heavily in the favor
of granting the stay.'
The critical issues to be decided on the merits of this appeal
are whether the orders of the district court (1) determining that
an attorney practicing before that court was in civil contempt of
a prior order entered by another judge of that court, and (2)
ordering the incarceration of that attorney from 8 a.m. to 5 p.m.
each business day until he purged himself of such contempt, were
correct. The majority had no trouble whatsoever in determining
that Musslewhite, by his original Notice of Appeal and his Motion
to Stay, has presented "a substantial case on the merits" and that
a "serious legal question is involved." Having so determined, the
2
majority next determined that the "equitable balance does weigh
heavily in favor of granting the stay." To paraphrase some of the
language from the Baylor case, the district court's order has
placed Musslewhite "between a rock and a hard place." He can
comply with the contempt order of December 13, 1993 and dismiss the
state court proceeding, thereby rendering moot his contention that
the permanent injunction entered by Order of March 3, 1992 did not
require him to dismiss such suit1, or he can spend each business
day in the custody of the U. S. marshal, thereby suffering
irreparable harm if it should be ultimately determined that the
contempt order of December 13, 1993 was not appropriate.
Furthermore, we note that the granting of our stay could not
possibly have caused "substantial harm" to Reading & Bates, in
light of the fact that the controversy as to the effect of the
federal proceeding on the state court proceeding has been going on
for more than ten years. In addition, Reading & Bates' motion to
vacate does not come anywhere close to suggesting any harm from our
granting such stay.
In conclusion, we emphasize that we are not deciding the
merits of the appeal or expressing any opinion on the resolution of
that serious legal issue. All we do today is to DENY Reading &
1
The March 3, 1992 order forbade Musslewhite from further
prosecution of the state suit, which the judge issuing the March 3,
1992 order plainly knew was then pending; all Musslewhite has done,
or attempted to do, is to leave the state suit in precisely the
same status (or, if anything, in an even more inactive status) as
it was in immediately before issuance of the March 3, 1992 order.
Musslewhite's possible difficulties in other, unrelated cases are
wholly irrelevant to whether what he did or attempted to do
violated the March 3, 1992 order.
3
Bates' Motion to Vacate Stay and to REAFFIRM our stay order of
December 21, 1993.
Sua sponte this Court orders that this case shall be set for
submission to an oral argument panel, and that immediately upon the
filing of the record herein, the Clerk of this Court shall
establish an expedited briefing schedule for the submission of this
case to such oral argument panel.
JERRY E. SMITH, Circuit Judge, dissenting:
In partially granting the motion for stay pending appeal, and
in subsequently refusing to vacate that stay, the panel majority
has unnecessarily interfered with the district court's reasonable
efforts to achieve compliance with its orders. Moreover, the
majority, while making an ad hoc decision to enter and continue the
stay, has failed to apply the appropriate standards as enunciated
in the well-established precedents of this court. In dissenting,
I write separately to express concern that there is an increasing
tendency to second-guess district courts on the question of stays
pending appeal and to enter stays merely to preserve the status
quo, with little attention to the prerequisites for such stays.
I.
This is an instance of an attorney's disdainful and persistent
disregard for the orders and directives of the federal courts. The
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plaintiff, Peter Manangklangi, and his attorney, Benton
Musslewhite, filed a federal action in federal district court in
1979 against the three Reading & Bates defendants ("Reading and
Bates"), seeking damages for an injury allegedly suffered during
offshore oil well workover operations near Indonesia. In 1984,
that action was dismissed with prejudice. Manangklangi did not
appeal.
In the meantime, in 1983, Manangklangi, through Musslewhite,
filed an action in state district court, alleging the same cause of
action. In 1986, Reading & Bates filed in federal court a
complaint for injunctive relief against Musslewhite, seeking to
proscribe Musslewhite's further prosecution of the state suit. In
1992, the federal district court granted Reading & Bates's motion
for summary judgment and permanently enjoined Manangklangi and
Musslewhite from prosecuting the pending state suit or any action,
in any court, asserting claims based upon the injury in question.
Once again, Manangklangi did not appeal.
In July 1993, the state court dismissed the still-pending 1983
lawsuit after notice was given that it was subject to dismissal for
want of prosecution. A month later, Musslewhite filed in the state
court a "Motion for New Trial, Rehearing, To Reconsider the
Dismissal Order, and To Reinstate the Case." The justification
given for reinstatement was that matters were pending in the
Supreme Court of the United States and the Texas Supreme Court that
had a bearing on the merits of Manangkalangi's claim and that the
state court should reinstate the state suit, retain it on the
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docket, and stay all proceedings pending disposition of the subject
proceedings in the state and federal supreme courts.
In October 1993, Musslewhite personally appeared at a status
conference with the state district judge and urged that the case be
reinstated. The state court granted the motion to reinstate.
II.
In October 1993, Reading & Bates filed in federal court a
motion for contempt and a motion to show cause why Musslewhite
should not be held in contempt. On December 15, 1993, the federal
district court entered an order finding Musslewhite in contempt and
ordering him to purge himself of his contempt.2
2
Specifically, the order directed Musslewhite to purge himself of contempt
by doing the following:
(a) Bring to the attention of the Judge of the [state
district court] the Final Judgment of this Court above-referenced,
including the injunctive order contained therein and of the need for
Defendants to purge themselves of contempt of this Court by
withdrawing their previous motion filed by Benton Musslewhite for
reinstatement . . . and obtaining reentry of an Order of Dismissal
such as that entered by the state district court on July 15, 1993.
(b) Fully and completely comply with all provisions of the
Court's Final Judgment entered March 5, 1992, by causing [the state
suit] to be DISMISSED and to CEASE and DESIST in prosecuting any
claims which Defendants are prohibited by said Final Judgment from
prosecuting in any state or federal court in this country.
(c) File with this Court no later than December 17, 1993, a
sworn statement in this matter setting forth the steps that have
been taken in order to purge Defendants of contempt, to obtain the
reversal of the Order reinstating the state cause . . . , which had
granted Defendants' state court motion that had been filed in
contempt of this court, and to obtain dismissal of that action.
(d) Reimburse Plaintiffs for all attorneys' fees and costs of
litigation incurred in this cause in connection with this contempt
proceeding. Plaintiffs' counsel shall file and serve upon
Defendants an affidavit of such attorneys' fees and costs no later
than December 17, 1993; but Plaintiffs' Motion for Costs and
Attorneys' Fees incurred in [the state suit] is DENIED.
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The next day, Musslewhite sent a representative to appear on
his behalf before the judge presiding in the state court
proceeding. The representative stated that, although Musslewhite
had requested the conference with the court to take place, "the
original reason for setting this particular conference had fallen
through because he had been unable to reach his client." No
mention was made of any intention to dismiss the state suit. Then,
on December 17, Musslewhite appeared before the state judge but
gave no indication of an intention to dismiss the state action.
After Musslewhite took no action to purge himself of contempt,
the district court held a show-cause hearing on December 20, at
which Musslewhite argued that the contempt order represented a
premature and impermissible modification of the injunction and that
the injunction was impermissibly vague. The court found that
Musslewhite's failure to withdraw the retention motion and effect
a dismissal of the state suit constituted a violation of the
injunction and of the contempt order.
The court issued a second contempt order, directing
Musslewhite to jail from 8 a.m. to 5 p.m. each business day
beginning December 22, until he had purged himself of the contempt.
The court denied Musslewhite's motion to stay the order pending
appeal. On December 21, Musslewhite filed a notice of appeal from
the two contempt orders.
Musslewhite filed in this court a motion for stay of the
The court warned that if the orders were not complied with by December 17, 1993,
a hearing would be held on December 20 to show cause why further sanctions should
not be imposed.
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contempt orders pending appeal. On December 21, this emergency
motions panel, over my dissent, stayed execution of the December 20
commitment order. On January 18, 1994, Reading & Bates filed in
this court a motion to vacate the December 21 stay.
III.
Musslewhite's argument in support of a stay pending appeal is
pure sophistry. He argues that, although the federal district
court enjoined him from "prosecuting" the state suit, that order
was vague and that his failure to withdraw the retention motion and
effect a dismissal of the state suit was not a violation of that
injunction or of the first contempt order.
The state court dismissed the case "for want of prosecution."
By any reasonable definition, an attorney's determined and
successful effort to reinstate such a suit, after he has been told
to drop it, constitutes "prosecution" of that suit.
Musslewhite was in repeated and flagrant disregard of the
orders of the district court. That court patiently afforded
Musslewhite numerous opportunities to comply and provided
Musslewhite with a more than adequate forum in which to explain his
position, but to no avail. Under the circumstances, the district
court was well within its discretion in determining that
incarceration was the only reasonable means of ensuring compliance
with its orders.
By staying the contempt orders pending appeal, the panel
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majority has awarded Musslewhite a victory he ill deserves and, in
so doing, had substantially undermined the ability of this district
court, and any other district court faced with today's action as a
precedent, to effect the orderly disposition of the business before
it in the face of recalcitrant attorneys such as Musslewhite.3
Most importantly, the panel majority has improperly applied
the requirements for a stay pending appeal.4 It is well
established that courts of appeals are not merely to substitute
their judgment for that of the district court in deciding to issue
a stay pending appeal.
Stays pending appeal constitute extraordinary relief and are
to be entered only when four conditions are met: (1) movant's
likelihood of success on the merits; (2) irreparable injury to the
movant if a stay is not granted; (3) a showing that the stay would
not substantially harm the other party; and (4) a demonstration
that the stay would serve the public interest. United States v.
Baylor Univ. Medical Ctr., 711 F.2d 38, 39 (5th Cir. 1983). We
generally recognize that the second condition is modified as
follows:
[T]he movant need not always show a "probability" of
success on the merits; instead, the movant need only
present a substantial case on the merits when a serious
legal question is involved and show that the balance of
the equities weighs heavily in favor of granting the stay
3
This is not Musslewhite's first scrape with the courts. See Musslewhite
v. State Bar of Tex., 786 S.W.2d 437 (Tex. 1990) (affirming revocation of law
license for violating disciplinary rule and for violating order not to take on
new clients during period of suspension), cert. denied, 111 S. Ct. 2891 (1991).
4
See generally John Y. Gotanda, The Emerging Standards for Issuing
Appellate Stays, 45 BAYLOR L. REV. 809 (1993).
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. . . . Of course, if the balance of equities (i.e,
consideration of the other three factors) is not heavily
tilted in the movant's favor, the movant must then make
a more substantial showing of likelihood of success on
the merits in order to obtain a stay pending appeal.
Ruiz v. Estelle, 650 F.2d 555, 565-66 (5th Cir. Unit A June 1981)
(per curiam).
We should evaluate these factors in Musslewhite's case, then,
by first examining the last three factors. The injury is not
irreparable, for Musslewhite can purge himself of contempt at any
moment by effecting the dismissal of the state suit. But assuming
arguendo that the commitment order constitutes irreparable harm,
and that a stay would not substantially harm Reading & Bates, the
stay certainly would not serve the public interest and, obviously,
is contrary to the public interest. That is because the stay
permits Musslewhite to continue to be in open disregard of the
reasonable orders of the district court, a circumstance that can
only promote disdain for the courts and contributes to disorder in
the legal system.
[F]ederal courts have the power to enjoin plaintiffs who
abuse the court system and harass their opponents.
Indeed, federal courts have broad powers to protect their
judgments and the integrity of the courts as a whole [,
including] the power to enjoin "any future litigation on
any cause of action arising from the fact situation at
issue in [the] case."
Villar v. Crowley Maritime Corp., 990 F.2d 1489, 1499 (5th Cir.
1993) (citations omitted) (last bracket in original), cert. denied,
62 U.S.L.W. 3451 (U.S. Jan. 10, 1994).
If, then, we view the other factors as "not heavily tilted in
[Musslewhite's] favor," he "must then make a more substantial
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showing of likelihood of success on the merits" to obtain a stay.
There is no likelihood that Musslewhite can prevail under any
reasonable reading of the district court's injunction prohibiting
him from prosecuting the state court lawsuit.
The test is not whether there is any possibility that
Musslewhite can prevail. Indeed, there is the chance that a panel
majority of this court, considering Musslewhite's pending appeal,
could decide that his appeal has merit. But the question is
whether he has made a strong enough showing now on the merits that
he can be excused from complying with the district court's
important directive during the weeks and even months that his
appeal will be pending.
Under Ruiz, the balance of the equities plainly does not weigh
strongly in Musslewhite's favor. Even if he is able to parse the
injunction and urge a strained reading by which the motion to
reinstate the state suit does not constitute "prosecution" of that
action, this would be the most technical of distinctions, and we
would be faced still with a recalcitrant attorney who has been told
to terminate state court proceedings but who, in the face of that,
has taken affirmative steps, once those proceedings were routinely
dismissed as part of an annual purging of the docket, to
reinvigorate that cause. Surely the balance of the equities cannot
weigh in favor of such a circumstance.
The point is that there is a presumption of correctness in the
district court's orders, as that court has the obligation to
maintain the orderliness of its proceedings and to exercise
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reasonable control over attorneys practicing as officers of the
court. We overstep our bounds when, merely to preserve the status
quo, we substitute our judgment for that of the able district judge
in the instant case. This is serious error, and I respectfully
dissent from the well-intended view of my conscientious colleagues.
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Reading & Bates Petroleum Co. v. Musslewhite
Court: Court of Appeals for the Fifth Circuit
Date filed: 1994-02-04
Citations: 14 F.3d 271
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