                                                                                                                           Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-26-2009

Adams v. Ford Mtr Co
Precedential or Non-Precedential: Non-Precedential

Docket No. 08-2566




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2009

Recommended Citation
"Adams v. Ford Mtr Co" (2009). 2009 Decisions. Paper 1678.
http://digitalcommons.law.villanova.edu/thirdcircuit_2009/1678


This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2009 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
                                                            NOT PRECEDENTIAL


                IN THE UNITED STATES COURT OF APPEALS
                         FOR THE THIRD CIRCUIT


                                  NO. 08-2566


                              YOLANDA ADAMS

                                       v.

                          FORD MOTOR COMPANY

                              Vincent A. Colianni
                   Appellant pursuant to Fed. R. App. P. 12(a)




                 On Appeal From the United States District Court
                      For the District of the Virgin Islands
                   (D.C. Civil Action No. 1-04-cv-00053-001)
                   Magistrate Judge: Hon. George W. Cannon


                           Argued December 9, 2008

                BEFORE: FISHER, JORDAN and STAPLETON,
                             Circuit Judges

                        (Opinion Filed: March 26, 2009)




Thomas Alkon (Argued)
2115 Queen Street
Christiansted
St. Croix, USVI 00820
 and
Vincent A. Colianni
Vincent A. Colianni, II
1138 King Street
Christiansted
St. Croix, USVI 00820
 Attorneys for Appellants

Daryl C. Barnes
Bryant, Barnes, Moss & Beckstedt
1134 King Street, 2nd Floor
Christiansted
St. Croix, USVI 00820
 and
Jeffrey A. Cohen
Erin L. Kinney (Argued)
Carlton Fields
100 Southeast Second Street
4000 Nationsbank Towers at International Place
Miami, FL 33131




                               OPINION OF THE COURT




STAPLETON, Circuit Judge:

       Appellant Vincent A. Colianni appeals from the District Court’s order finding that

he violated American Bar Association Model Rule of Professional Conduct Rule 3.5 by

initiating post-verdict contact with a juror. The issue presented is whether the District

Court erred in imposing a sanction without following the disciplinary procedures

specified in the relevant local rule. We reluctantly conclude that we lack jurisdiction to

review this decision of the District Court and will dismiss this appeal.

                                             2
        On May 27, 2008, the District Court entered an order declaring, inter alia, that

“the Court finds that Vincent A. Colianni, Sr., [counsel for the plaintiff] has engaged in

misconduct by his post-verdict communication with a juror in contravention of American

Bar Association Model Rule of Professional Conduct 3.5(c).” App. at 3. We assumed

without deciding for present purposes that the entry of this order constituted an

imposition of a sanction. Colianni filed a notice of appeal from this order on May 29,

2008.

        At the outset, we must address our jurisdiction to entertain this appeal. An order

disposing of less than all issues in a case is immediately appealable only if the three

requirements of the collateral order doctrine are met. Martin v. Brown, 63 F.3d 1252 (3d

Cir. 1995). As we explained in Martin:

        The case law on the collateral order doctrine is extensive and its
        requirements clear. It permits appellate review of orders that: (1) finally
        resolve a disputed question; (2) raise an important issue distinct from the
        merits of the case; and (3) are effectively unreviewable on appeal from a
        final judgment.

Id. at 1259.

        Our decision in Comuso v. Nat’l R.R. Passenger Corp., 267 F.3d 331 (3d Cir.

2001), dictates our response to the issues thus posed. The Court’s May 27, 2008, order

does not satisfy the second and third requirements of the collateral order doctrine and was

not immediately appealable.

        In Comuso, the District Court found Marvin Barish, counsel for the plaintiff, guilty


                                              3
of seriously unprofessional conduct directed towards opposing counsel during a recess.

The Court imposed the following sanctions on Barish pursuant to its inherent authority to

discipline attorneys practicing before it: disqualification from continued representation in

the case, a monetary sanction of $13,285, and a referral to the Disciplinary Board of the

Supreme Court of Pennsylvania. This Court held in Barish’s immediate appeal that it had

no jurisdiction.

       Barish insisted that the order sanctioning him raised an important issue distinct

from the merits of the case and would be effectively unreviewable on appeal from a final

judgment. Although we recognized that counsel had a significant interest in personal

vindication distinct from the interests of his client, we nonetheless rejected both

contentions:

       [T]he Supreme Court has consistently rejected a case-by-case approach in
       deciding whether an order was separate from the merits of the litigation in
       favor of a per se rule that sanctions orders are inextricably intertwined with
       the merits of the case. See Cunningham, 527 U.S. at 206, 119 S. Ct. 1915;
       Richardson-Merrell, 472 U.S. at 439, 105 S. Ct. 2757. Therefore, we hold
       that the District Court’s order imposing sanctions against Barish is not
       sufficiently separate from the underlying merits of the case.

               Moreover, we note that denying jurisdiction now does not prevent
       appellate review of the sanctions in an appeal of the final judgment on the
       merits. The fact that Barish is no longer part of the litigation does not make
       the sanctions order immediately appealable. . . . That Barish may have to
       monitor the progress of the litigation in order to appeal upon final judgment
       is not dispositive. See Cunningham, 527 U.S. at 209, 119 S. Ct. 1915.
       Therefore, the order imposing sanctions on Marvin Barish is not
       immediately appealable under 28 U.S.C. § 1291.

Comuso, 267 F.3d at 339. As in Comuso, the District Court’s sanction order here was not

                                              4
immediately appealable under the collateral order doctrine.

       The District Court entered a final order on the merits of this case on August 20,

2008. Colianni did not file an appeal of the sanction order within thirty days of the entry

of that final order. Accordingly, the remaining jurisdictional issue is whether the entry of

the final judgment revived the premature notice of appeal filed on May 29, 2008. We

conclude that it did not.

       Federal Rule of Appellate Procedure 4(a)(2) provides that under certain

circumstances a premature appeal followed by the entry of a final merits judgment shall

be treated as filed on the date of the judgment. As we know from the teachings of

FirsTier Mortgage Co. v. Investors Mortgage Ins. Co., 498 U.S. 269 (1991), however,

this “is not to say that Rule 4(a)(2) permits a notice of appeal from a clearly interlocutory

decision – such as a discovery ruling or a sanctions order under Rule 11 of the Federal

Rules of Civil Procedure – to serve as a notice of appeal from a final judgment. A belief

that such a decision is a final judgment would not be reasonable.” Id. at 276 (emphasis in

original). Thus, Rule 4(a)(2) does not help Colianni here.

       Rule 4(a)(2) is not the only authorization recognized by our Circuit for treating a

premature notice of appeal as an appeal from a subsequently entered final judgment. See,

e.g., Cape May Greene, Inc. v. Warren, 698 F.2d 179 (3d Cir. 1983); Lazy Oil Co. v.

Witco Corp., 166 F.3d 581 (3d Cir. 1999). We have held, however, that the doctrine

reflected in this line of cases does not authorize permitting a premature notice of appeal


                                              5
from a clearly interlocutory order such as a sanction order to ripen upon the entry of a

final judgment on the merits. ADAPT of Philadelphia v. Philadelphia Housing Auth., 433

F.3d 353 (3d Cir. 2006); Lazorko v. Pennsylvania Hosp., 237 F.3d 242 (3d Cir. 2000).

       We will dismiss this appeal for want of jurisdiction.




                                             6
