United States v. 789 Cases of Latex Surgeon Gloves

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

No. 93-1554

UNITED STATES OF AMERICA,

Plaintiff, Appellee,

v.

789 CASES OF LATEX SURGEON GLOVES,

Defendant, Appellee,

HARRY ANDUZE-MONTANO,
Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Jaime Pieras, Jr., U.S. District Judge]

Before

Breyer, Chief Judge,

Torruella and Selya, Circuit Judges.

Guillermo Ramos Luina on brief for appellant.

December 30, 1993

TORRUELLA, Circuit Judge. The question before us

is whether the district court, under its inherent or

supervisory powers, properly ordered an attorney to pay the

court reporter for a trial transcript. We conclude the order

must be reversed.

I.

Appellant is an attorney who represented a claimant

in a forfeiture action. At the close of the 13-day non-jury

trial in that case, the court asked the reporter to prepare

the transcript on an expedited basis so that the parties

could use it in preparing post-trial memoranda. Several

months later, before the district court had rendered any

decision, appellant moved to withdraw explaining that he had

been unable to communicate with his client, he had not been

paid for his services, and the client had not produced the

funds for the trial transcript. The district court judge

issued an order holding the motion to withdraw in abeyance

until new counsel filed an appearance. Three weeks later,

the court reporter asked the court to order appellant

personally to pay $4,519 for the trial transcript he had

ordered, but not yet picked up. Appellant filed no

opposition to the court reporter's motion, and a month later

the judge issued an order requesting appellant to pay the

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reporter within the week.1 The same day, the judge rendered

his decision in the forfeiture action, found against

appellant's client, and ordered the articles destroyed. The

next month, the court reporter said she had not been paid and

asked the court to enforce its August 19 order. Appellant

opposed and sought reconsideration of the August 19 order.

He explained that the transcript had been ordered on behalf

of his client, but he had been unable to collect either his

own fee or the transcript amount. Moreover, he argued that

the court lacked jurisdiction over him with respect to the

demand for payment.

The district court rejected appellant's

jurisdictional argument, explaining, without citation to any

authority, as follows:

The Court's power to order an attorney to
pay for stenographic transcripts which he
has ordered from the official court
reporter stems from the summary
jurisdiction possessed by courts over
attorneys as their officers. The courts
have always possessed jurisdiction to
compel an attorney to observe the duties
incident to his professional relations
towards his clients, and towards the
other officers of the Court, including
court reporters. It is a court's right

1. The order, dated August 19, 1992, read as follows:

Order to Att. Harry Anduze -- Please
proceed to pay Mrs. Barbara Dachman the
sum of $4,519.00 for her services as
requested in motion subject of this
order. Payment should be made on or
before August 26, 1992.

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and duty to supervise attorneys and court
reporters in their actions pertaining to
matters concerning litigation before the
court, as they are both officers of the
court. Thus, the Court has jurisdiction
over attorney Anduze even though he has
not been served with process.

United States v. 789 Cases of Latex Surgeons' Gloves, 826 F.

Supp. 589, 590 (D.P.R. 1993). With regard to the merits, the

court acknowledged the existence of contrary views, but

adopted the following rule:

[T]he Court believes that in the absence
of express notice to the contrary, court
officials and persons connected, either
directly or indirectly with the progress
of litigation, may safely regard
themselves as dealing with the attorney,
rather than with the client. . . . There
is nothing unfair about this rule, the
Court agrees with [Monick v. Melnicoff,

144 A.2d 381 (D.C. Mun. Ct. App. 1958)]
in that:

If an attorney in ordering a
transcript or a brief does not
intend to bind himself
personally, he may avoid
responsibility by making his
position clear. The reporter .
. . then on notice of the
nonliability of the attorney,
may take such steps as he feels
are necessary for his
protection before extending
credit to a client whose credit
standing and responsibility are
often wholly unknown to him.

789 Cases, 826 F. Supp. at 590-91. While neither side had

cited any Puerto Rico law on the subject, the court did not

determine how a Puerto Rico court would decide the

contractual dispute because it believed the matter could be

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"resolved independently of local law," id., at 590 n.3, and

it ordered appellant to pay the court reporter.2

Appellant has now appealed from the May 12, 1993

payment order.

II.

We deal first with a jurisdictional question. The

court reporter argues no timely appeal from the final payment

order has been filed and hence we should dismiss the appeal.

She contends that the payment order was the court's August

19, 1992 order quoted in note one, that appellant's motion

for reconsideration, filed on September 22, 1992 past the

period provided in Rule 59(e), would not have tolled the time

for appealing from the August 19, 1992 under the version of

Fed. R. App. P. 4(a)(4) in effect prior to December 1, 1993;

and that appellant's May 24, 1993 notice of appeal from the

court's May 12, 1993 order denying reconsideration and

ordering payment does not bring before us the August 19, 1992

order. Under the principle that a post-judgment motion

asking the court to change its disposition solely because of

legal error must be brought under Rule 59(e) within the

rule's 10-day period, Rodriquez-Antuna v. Chase Manhattan

Bank Corp., 871 F.2d 1, 2 (1st Cir. 1989) (dispute over how

2. We point out that we take no position on the question
whether the substantive rule of decision in a case like this
derives from federal or state law. See Mathewson Corp. v.

Allied Marine Indus., Inc., 827 F.2d 850, 853 n.3 (1st Cir.

1987).

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statute of limitations should be computed not cognizable

under Rule 60(b)); Silk v. Sandoval, 435 F.2d 1266, 1267-68

(1st Cir.) ("If the court merely wrongly decides a point of

law, that is not `inadvertence, surprise, or excusable

neglect'" within the meaning of Rule 60(b)(1)), cert. denied,

402 U.S. 1012 (1971), the appeal from the May 12, 1993 order

would avail appellant nothing, the argument would continue.

We disagree for two reasons. First, the August 19,

1992 order was arguably precatory. It did not clearly direct

payment, but rather asked appellant to please pay the

reporter, a phrasing which may have led appellant to believe

the directive did not carry the force of a normal court

order. Second, Rodriquez-Antuna does not apply because

appellant did not simply argue that the August 19, 1992 order

was infected by error of substantive law. Rather, appellant

advanced a non-frivolous argument that the order was void

because the court lacked jurisdiction to order him to pay the

court reporter, a matter the district court had not earlier

addressed. Under these circumstances, we conclude that even

if the August 19, 1992 order was a final judgment from which

an immediate appeal could have been filed, appellant's motion

for reconsideration was properly entertainable under Fed. R.

Civ. P. 60(b). As appellant filed a timely notice of appeal

from the court's May 12, 1993 order denying reconsideration

and ordering appellant to pay the court reporter, we deny the

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court reporter's motion to dismiss and motion for further

briefing time and proceed to the merits.

III.

Some courts, applying agency principles, conclude

an attorney is not liable for litigation expenses absent an

express or implied undertaking to be bound, while other

courts treat the attorney, rather than the client, as the

principal and impose liability on the attorney absent an

express disclaimer of responsibility. See Jay M. Zitter,

Annotation, Attorney's Personal Liability for Expenses

Incurred in Relation to Services for Client, 66 A.L.R. 4th

256, 262 (1988) (surveying the variety of approaches

followed). Here the district court purported to exercise its

supervisory powers to devise a uniform rule to be followed in

the federal district court in Puerto Rico and applied the new

rule to conduct pre-dating the rule's announcement.

Regardless of whether federal or state law supplies the rule

of decision (a matter on which we do not opine, see supra

n.2), and regardless of which of the surveyed approaches to

an attorney's payment responsibility represents the better

view, we think the district court's handling of the situation

did not satisfy the demands of fundamental fairness.

The situation is similar to that presented in

Boettcher v. Hartford Ins. Group, 927 F.2d 23 (1st Cir.

1991). There, the district court invoked its inherent powers

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to impose jury costs on a plaintiff and her attorney who had

settled on the morning of trial after jurors had reported for

duty. No local rule provided for jury costs under those

circumstances, and counsel had had no notice prior to

settling that jury costs would be imposed. We reversed the

sanction because it was unfair for the court to use the case

as the first step in adopting a new rule. The "[l]ack of

fair notice is fatal to [the court's] exercise of inherent

power . . .. The law forbids the imposition of a new rule

without prior notice," we explained. Id. at 26.

We think the same is true here. The district court

has no written local rule imposing liability on attorneys for

transcripts they order,3 and hence the court should not have

invoked its inherent powers to resolve the "transcript

payment" dispute summarily.

The May 12, 1993 order directing appellant to pay

the court reporter is reversed.

3. We do not purport to pass upon the validity of any such
rule, were one to be adopted. Similarly, we do not express
any view on what remedial avenues remain open to the unpaid
court reporter.

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