                           File Name: 05a0397n.06
                             Filed: May 13, 2005
                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

                                      Nos. 04-3614, 04-3955

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT


DONNA COUSINS; RICK JAMES; SHARRIE )
PIERCE; and KENNY YOAKEM,          )
                                   )
     Plaintiffs-Appellees,         )
                                   )
v.                                 )                         On Appeal from the United States
                                   )                         District Court for the Southern
ROBERT BRAY and LISA BRAY,         )                         District of Ohio
                                   )
     Defendants-Appellants.        )




Before:        BOGGS, Chief Judge; GIBBONS, Circuit Judge; and QUIST, District Judge.*

               BOGGS, Chief Judge. Defendants appeal from the district court’s order of civil

contempt for violations of a preliminary injunction issued against them and its award of attorney’s

fees to plaintiffs-appellees for prevailing in their motion for contempt. Because a judgment of civil

contempt is not a final order, we conclude that we do not have jurisdiction over the appeal at this

time. Therefore, we dismiss the appeal.



                                                 I




       *
       The Honorable Gordon J. Quist, United States District Judge for the Western District of
Michigan, sitting by designation.
Nos. 04-3614, 04-3955
Cousins v. Bray

       Starting in August 2003, plaintiffs Cousins and James rented a house from defendants.

Defendants also rent a neighboring house to Pierce, James’s sister, and Yoakem, her boyfriend.1

Robert Bray, one of the defendants, owns a logging company that is headquartered next to the two

houses. In October and November 2003, the defendants attempted to evict Cousins and James from

the house. On November 21, plaintiffs Cousins and James responded by filing suit, alleging that the

defendants sought to evict them because of racial discrimination against Cousins’s two biracial

children, in violation of the Fair Housing Act, 42 U.S.C. §§ 3601-3631; 42 U.S.C. § 1982; and Ohio

Rev. Code § 4112.02(H). Plaintiffs sought a temporary restraining order, which the district court

granted that day. Pursuant to plaintiffs’ request for a preliminary injunction, the district court

conducted a two-day hearing. On December 30, 2003, the district court issued an order granting the

preliminary injunction. The order enjoined defendants from both attempting to evict Cousins and

James and “harassing, intimidating, or threatening” either plaintiffs or Cousins’s sons.

       On April 6, 2004, plaintiffs filed a motion to hold defendants in contempt of the preliminary

injunction. After another hearing, the district court granted plaintiffs’ motion. It found that

defendants were harassing plaintiffs by causing excessive noise through the use of jake brakes on

Bray’s logging company’s trucks and by having installed a large pig pen and dog kennel close to

Cousins and James’s house. The court also ordered the defendants to pay plaintiffs’ attorneys’ fees

associated with the contempt motion.




       1
         Via an amended complaint filed on May 5, 2004, Pierce and Yoakem entered the suit as
plaintiffs and sought a preliminary injunction. The district court denied their motion for a
preliminary injunction on June 25.

                                               -2-
Nos. 04-3614, 04-3955
Cousins v. Bray

         Before this court, defendants appeal both the district court’s ruling that they were in

contempt of the injunction and its award of attorney’s fees to plaintiffs. They do not challenge the

district court’s decision to grant a preliminary injunction. In the interim, a jury has found that

defendants did not violate either federal or state law. As both parties are aware, however, the district

court granted plaintiffs’ motion for a new trial on March 3, 2005. The case is still ongoing in district

court.



                                                   II

         Even though neither party has questioned this court’s jurisdiction over the present dispute,

our “independent obligation to police our own jurisdiction” requires us to raise the issue sua sponte.

SEC v. Basic Energy & Affiliated Res., Inc., 273 F.3d 657, 665 (6th Cir. 2001). We conclude that

we do not have jurisdiction over these issues at this time.

         It is a long-standing rule of appellate jurisdiction that “a judgment of civil contempt is not

a final decree and therefore is not appealable in itself.” Blaylock v. Cheker Oil Co., 547 F.2d 962,

965 (6th Cir. 1976) (citing Fox v. Capital Co., 299 U.S. 105, 107 (1936)). We have reviewed orders

of civil contempt when raised as part of an appeal from an otherwise-appealable interlocutory order

such as a preliminary injunction. See ibid. In addition, we will review an order of civil contempt

if it follows the entry of a final judgment. McAlpin v. Lexington 76 Auto Truck Stop, 229 F.3d 491,

500 (6th Cir. 2000). Limiting our review of civil contempt orders to these instances serves “the

policy of preventing piecemeal litigation.” Ibid. (quoting Peabody Coal Co. v. Local Union Nos.

1734, 1508 and 1548, UMW, 484 F.2d 78, 82 (6th Cir. 1973)). The contempt order appealed in this

                                                 -3-
Nos. 04-3614, 04-3955
Cousins v. Bray

case does not fall within either of these categories. While the district court entered a preliminary

injunction, defendants do not challenge it before this court. As the procedural history to this case

amply illustrates, there has also been no final order in this case. Appellants instead seek review only

of the contempt order, which “is not appealable in itself.” Blaylock, 547 F.2d at 965.

       Without the existence of a final order or a concurrently appealed preliminary injunction, this

court lacks jurisdiction over the district court’s civil contempt order. It is true that this court in

Peabody Coal concluded that the preliminary injunction issued in that case could serve as a final

order, making the later-filed contempt order appealable. 484 F.2d at 83-84. However, the analysis

in Peabody Coal has never been taken to create an absolute rule, or even a presumption, that a civil

contempt order is appealable so long as it follows the issuance of a preliminary injunction. See

Blaylock, 547 F.2d at 965 (distinguishing Peabody Coal despite the district court having already

granted a preliminary injunction). In addition, the outcome in Peabody Coal turned on the specific

facts of that case, as we emphasized in conducting a “practical analysis” of whether the preliminary

injunction in that case constituted a final order. 484 F.2d at 84. In Peabody Coal, the court

reasoned that the statements of the district court and parties suggested the preliminary injunction was

to serve as the final order. Ibid. The record before us contains no such statements. Furthermore,

the Peabody Coal court found it highly relevant that the preliminary injunction disposed of

“virtually all the questions in the case.” Ibid. The same cannot be said in this case. First, the

addition of Pierce and Yoakem has injected new issues into the case.              Second, and more

fundamentally, the case has already proceeded to trial once and may be tried again. Thus, the

preliminary injunction has not resolved the issues in this case.

                                                 -4-
Nos. 04-3614, 04-3955
Cousins v. Bray

          Under these circumstances, consideration of appellants’ appeal does not “prevent[ ]

piecemeal litigation.” McAlpin, 229 F.3d at 500 (6th Cir. 2000) (quoting Peabody Coal, 484 F.2d

at 82).    Indeed, current consideration of these issues would encourage it.   Believing such

encouragement unwise, we accordingly DISMISS appellants’ appeal.




                                              -5-
