Piratello v. Philips Electronics North America Corp.

United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT March 3, 2004

_______________________ Charles R. Fulbruge III
Clerk
NO. 03-50772
Summary Calendar
_______________________

MARIO PIRATELLO,

Plaintiff-Counter Defendant-Appellant,

versus

PHILIPS ELECTRONICS NORTH AMERICA CORPORATION, ET AL.,

Defendants;

PHILIPS ELECTRONICS NORTH AMERICA CORPORATION,

Defendant-Counter Claimant-Appellee.

_________________________________________________________________

Appeal from the United States District Court
for the Western District of Texas
________________________________________________________________

Before JONES, BENAVIDES, and CLEMENT, Circuit Judges.

PER CURIAM:

Before the panel is a motion carried with the case which

argues that this court lacks appellate jurisdiction over an order

compelling a judgment debtor to appear for a post-judgment

deposition, respond to questions regarding the identity, amount,

and location of his assets, and produce a variety of documents

requested by the judgment creditor. Because we find that this

panel lacks appellate jurisdiction over this action at the present

juncture, we DISMISS the appeal.
 I. BACKGROUND

Mario Piratello was employed by Philips North America as

a senior plant manager from 1988 to 1999. An internal

investigation conducted by Philips suggested that Piratello had

defrauded Philips during his employment. Piratello was fired.

Piratello responded to his dismissal by filing an action in federal

court alleging, inter alia, a breach of contract and a violation of

the Employee Retirement Income Security Act of 1974 (“ERISA”).

Philips counter-claimed for the losses sustained as a result of

Piratello’s allegedly fraudulent activities. The case was tried to

a jury and resulted in a complete loss for Piratello and a complete

victory for Philips. The district court entered a judgment against

Piratello for $1,000,000 plus costs. Piratello filed a notice of

appeal with this court, but the appeal was dismissed for want of

prosecution when Piratello failed to timely order a transcript.

While the appeal was pending, Philips attempted to depose

Piratello to determine the identity, amount, and location of his

assets to collect on its judgment. Piratello appeared at the

deposition but refused to answer any questions, including basic

information about himself, and asserted his Fifth Amendment right

against self-incrimination. In addition, Piratello failed to

produce any of the documents requested by Philips. Philips then

filed a motion to compel Piratello to answer questions regarding

his assets, produce various documents, and enjoin Piratello from

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disposing of any assets in excess of $500. The motion was granted

in part and denied in part by the district court. On June 25,

2003, the district court ordered Piratello to appear in Washington,

DC, by July 7, to answer questions regarding his assets and to

produce the documents requested by Philips. In the same order, the

district court denied Philips’s request for an injunction against

Piratello, but noted that it might reconsider the request for an

injunction at a later date.

Instead of appearing for his deposition on the requisite

date, Piratello filed a notice of appeal with this court

challenging the district court’s order of June 25, 2003. Philips

moved to dismiss, arguing that this court lacks jurisdiction over

Piratello’s appeal. We carried the motion with the case and

ordered briefing from the parties.

II. DISCUSSION

Subject to specific exceptions, this court’s jurisdiction

is limited to the review of “final decisions of the district courts

of the United States . . . except where a direct review may be had

in the Supreme Court.” 28 U.S.C. § 1291 (2000). As a general

matter, discovery orders do not constitute final decisions under

§ 1291, and therefore, are not immediately appealable. See A-Mark

Auction Galleries, Inc. v. Heritage Capital Corp., 233 F.3d 895,

897 (5th Cir. 2000) (citing Church of Scientology v. United States,

506 U.S. 9, 18 n.11 (1992)). The Supreme Court has held that a

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party that wishes to immediately appeal a discovery order “must

[first] refuse compliance, be held in contempt, and then appeal the

contempt order.” Church of Scientology, 506 U.S. at 18 n.11

(citing United States v. Ryan, 402 U.S. 530 (1971)).1 In addition,

the basis of Piratello’s claim - the Fifth Amendment’s privilege

against self-incrimination - does not, standing alone, entitle him

to an interlocutory appeal. See Maness v. Meyers, 419 U.S. 449,

458-461 (1975) (no interlocutory appeal of an order refusing to

quash a subpoena for materials that arguably violated the

subpoenaed party's Fifth Amendment privilege against

self-incrimination).

While this court has not previously held that the

requirement of a sanction prior to an appeal specifically applies

to post-judgment discovery orders to judgment debtors, we see no

reason to treat such orders differently. See Richmark Corp. v.

Timber Falling Consultants, Inc., 937 F.2d 1444, 1449 (9th Cir.

1991) (holding that post-judgment orders granting discovery, such

as those relating to judgment debtors “are not considered final

judgments and may be appealed only after the issuance of a contempt

order for failure to comply”); Rouse Construction Int’l Inc. v.

1
As to non-parties, however, the rule is different: “a discovery
order directed at a disinterested third party is treated as an immediately
appealable final order because the third party presumably lacks a sufficient
stake in the proceeding to risk contempt by refusing compliance.” Church of
Scientology, 509 U.S. at 18 n.11 (citing Perlman v. United States, 247 U.S. 7
(1918)). Further, the Supreme Court has carved out an exception for pre-contempt
appeals by the President of the United States to avoid unnecessary constitutional
confrontations between two coordinate branches of government. See United States
v. Nixon, 418 U.S. 683 (1974).

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Rouse Construction Corp., 680 F.2d 743, 746 (holding that “the

granting of a post-judgment discovery motion is not an appealable

final order”) (11th Cir. 1982); see also In re Joint E. & S. Dists.

Asbestos Litig., 22 F.3d 755, 760 (7th Cir. 1994) (noting that,

every circuit to have considered the question has held that “as a

general rule, an order authorizing discovery in aid of execution of

judgment is not appealable until the end of the case”).

Piratello argues that the collateral order doctrine

provides another exception to the finality doctrine that allows his

appeal to proceed. See Cohen v. Beneficial Indus. Loan Corp., 337

U.S. 541 (1949) (setting out the collateral order doctrine). This

court has indicated its agreement with the Fourth Circuit’s view

that the availability of an appeal through a contempt order renders

the collateral order doctrine inapplicable to discovery orders.

See A-Mark Auction Galleries, 233 F.3d at 898-99 (noting, with

approval, the holding of MDK, Inc. v. Mike’s Train House, Inc.,

27 F.3d 116, 119 (4th Cir. 1994)).

Piratello also argues that this appeal is proper under

28 U.S.C. § 1292(a)(1), which grants the court of appeals jurisdic-

tion over interlocutory injunctive orders. Piratello contends that

the district court’s denial of the injunction to Philips, with an

indication that the court might grant one at a later date, was a

modification within the meaning of this statute. This argument is

meritless — the district court order did not “modify” an injunction

because there was no injunction on file to modify. Nor is

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Piratello a “party aggrieved” by the denial of the injunction

sought by Philips.

Therefore, in order to sustain an appeal, Piratello must

choose to disobey the district court’s order and endure the

district court’s sanction.

For these reasons, we DISMISS this appeal for lack of

jurisdiction.

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