
USCA1 Opinion

	




          April 26, 1996                                [Not for Publication]                            United States Court of Appeals                            United States Court of Appeals                                For the First Circuit                                For the First Circuit                                 ____________________        No. 95-1949                                ELIZABETH V. BOGOSIAN,                                 Plaintiff, Appellee,                                          v.                            JAMES H. WOLOOHOJIAN, ET AL.,                                     Defendants,                                _____________________                              WOLOOHOJIAN REALTY CORP.,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF RHODE ISLAND                 [Hon. Francis J. Boyle, Senior U.S. District Judge]                                         __________________________                                 ____________________                                        Before                                Cyr, Boudin and Stahl,                                   Circuit Judges.                                   ______________                                 ____________________            William R. Grimm, with whom Robert M. Duffy  and Hinckley, Allen &            ________________            _______________      _________________        Snyder, were on brief for appellant.        ______            Charles  D.  Ray, with  whom  John  W.  Cannavino  and Cummings  &            ________________              ___________________      ___________        Lockwood, were on brief for appellee.        ________                                 ____________________                                 ____________________                      Per Curiam.  This litigation has already used up an                      Per Curiam.                      __________            enormous amount  of legal talent and  judicial resources over            its  seven-year life.  The ultimate issue is simply the value            of  a   minority  shareholder's  stake  in   a  closely  held            corporation.   Yet, the dispute  has resulted so  far in more            than 250  entries  on  the  district court  docket  and  four            district court  orders published  in the  Federal Supplement.            This is the third occasion on which the numerous protagonists            of this legal war have brought appeals before us; none of the            appeals concern the principal issue in  the litigation.  From            all we can tell, the end is not yet in sight.                      Now  two district  court judges  have  entered what            appear to  be conflicting  orders affecting  interim payments            due to  the appellee.  Orders by a third district judge and a            magistrate judge also implicate those payments, and a bevy of            lawyers, for themselves and  for their clients, have asserted            claims  and  liens  against  the  same  funds.    The  issues            presented in this appeal could have been resolved without our            intervention  if the  parties  were disposed  to manage  this            litigation  with a  view toward  resolving issues  instead of            proliferating them.                      In  any case,  there are before  us for  review two            different  orders  of  the  district  court  entered  on  two            different  dates.   The  first is  the  July 26,  1995, order            denying a motion by Woloohijian Realty Corporation ("WRC") to                                         -2-                                          2            modify the July 13, 1990, order directing WRC to make monthly            payments  to Bogosian.   The  second is  the August  8, 1995,            order  releasing funds to Bogosian  that had been  held in an            escrow  account  pursuant to  a June  8,  1993, order  of the            magistrate judge.   We  treat the  two orders  separately for            reasons that will become apparent.                      1.   There is no apparent  jurisdictional basis for            immediate  appeal of the August 8 order.   This order, so far            as  it is  contested on  appeal, merely released  to Bogosian            funds held under  an escrow established  at the direction  of            the  magistrate  judge and  held  explicitly  subject to  the            control of the court.  The district court ruled  (1) that the            magistrate judge lacked authority to order these funds placed            in escrow and (2)  even if that course had  been permissible,            the funds should now be disbursed from escrow to Bogosian.                      Contrary to appellants'  assumption, this order  is            not  in form  an injunction  immediately appealable  under 28            U.S.C.    1292(a)(1).    Sometimes orders  not designated  as            injunctions  are  so  treated  where  irreparable  injury  is            threatened,  Carson  v.  American  Brands, 450  U.S.  79,  84                         ______      ________________            (1981),  but here  there is  also no  showing of  irreparable            injury.   The court's  disposition  of funds  within its  own            control does  not create any  danger that appellants  will be            held  in contempt by another  judge; nor is  it apparent that                                         -3-                                          3            this  single  transfer  of  funds to  Bogosian  will  subject            appellants to the potential for excessive liability.                      2.    The July  26  order  refusing to  modify  the            earlier injunction stands on a different footing.  Appellants            had  urged its  modification,  arguing  that  the  injunction            (directing them to make payments monthly to Bogosian) clashed            with a later  directive of  another judge of  the same  court            directing appellants to  withhold the  monthly payments  from            Bogosian pursuant  to an attachment  order in favor  of other            creditors.1   The  refusal   to   modify  an   injunction  is            ordinarily appealable at once.  Section 1292(a)(1).                      The  district court  based its  July 26  refusal to            modify on the  ground that  appellants would not  be held  in            contempt  for distributing  funds in  the court's  "custody."            Rhode Island  law is  unsettled  as to  the scope  of the  in                                                                       __            custodia legis doctrine.   While we agree that this reasoning            ______________            would  likely  apply to  the escrowed  funds,  it is  at best            debatable  whether in  the present  circumstances unearmarked            funds  held by  appellants would  meet this  description; and            assuming that appellants are under a conflicting order not to            pay  those funds  to  Bogosian, we  think  that the  district                                            ____________________            1.  We  have assumed  this  conflict arguendo  because it  is                                                 ________            asserted  by  appellants and  not  directly  disputed by  the            district court,  the appellee or the  record materials before            us.   But we note that  the record before us  is not complete            and are not ourselves ruling that the conflict exists.                                         -4-                                          4            court's reasoning  does not explain away  the apparent threat            to appellants.                      3.   In  remanding  for further  consideration,  we            think  it  important  to  emphasize that  there  are  serious            problems  of both  appearance  and fairness  when a  litigant            seems to be subject to conflicting directives from two judges            of  the  same court.    However  tangled  and  vexatious  the            litigation  may  be,  this  apparent  conflict  needs  to  be            resolved, either by establishing  that the judicial orders do            not conflict,  or by harmonizing  the appellants' obligations            to the several claimants to the funds.                      One solution might be for the court to act promptly            on the  long-pending interpleader action by  which appellants            have    sought   to    reconcile   the    alleged   conflict.            Alternatively,  it  might be  possible  to  consolidate these            actions before  a single judge so  that he or she  can make a            binding  determination as  to  the scope  of the  appellants'            interim  obligations.   Whatever  course  the district  court            adopts,  we think this aspect of the matter does need careful            but prompt attention.                      The appeal  from the August  4, 1995, order  of the            district court is dismissed.  The July 26, 1995, order of the                              _________            district court  is vacated, and  that matter is  remanded for                               _______                       ________            further proceedings consistent with this order.                      It is so ordered.                      It is so ordered                      ________________                                         -5-                                          5
