                                                                                                                           Opinions of the United
2001 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-3-2001

Comuso v. Natl RR Passenger
Precedential or Non-Precedential:

Docket 00-1491




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Recommended Citation
"Comuso v. Natl RR Passenger" (2001). 2001 Decisions. Paper 227.
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Filed October 3, 2001

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 00-1491

MARIO G. COMUSO;
MARVIN I. BARISH, ESQUIRE

Marvin I. Barish, Esquire,
       Appellant

v.

NATIONAL RAILROAD PASSENGER CORPORATION

On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil No. 97-cv-07891)
District Judge: Hon. Herbert J. Hutton

Submitted Under Third Circuit LAR 34.1(a)
July 9, 2001

Before: SLOVITER, ALITO and FUENTES, Circuit   Judges

(Filed October 3, 2001)

       James E. Beasley
       David A. Yanoff
       Beasley, Casey & Erbstein
       Philadelphia, PA 19107-4997

        Attorneys for Appellant

       Gerald T. Ford
       Christopher S. Kozak
       Landman Corsi Ballaine & Ford
       Newark, New Jersey 07102

        Attorneys for Appellee
OPINION OF THE COURT

SLOVITER, Circuit Judge.

Marvin I. Barish, counsel for the plaintiff Mario Comuso,
seeks immediate appellate review of the District Court's
order dated April 25, 2000 imposing sanctions against him.
We must determine whether we have jurisdiction to hear
this appeal under 28 U.S.C. S 1291, and, if not, whether we
should issue a writ of mandamus as requested.

I.

FACTS AND PROCEDURAL BACKGROUND

Comuso filed an action against the National Railroad
Passenger Corp. ("Amtrak") under the Federal Employer's
Liability Act, 45 U.S.C. S 51 et seq., alleging that he
suffered personal injuries while working for Amtrak. The
trial commenced on January 11, 1999 before Judge Herbert
J. Hutton in the United States District Court for the
Eastern District of Pennsylvania. Comuso was represented
by Barish, and Amtrak was represented by Paul F.X.
Gallagher.

According to Barish, the trial began poorly for Gallagher,
as testimony from the plaintiff 's witnesses showed that
certain representations that Gallagher had made during his
opening statement were false. Gallagher responded by
cross-examining the plaintiff with a line of questioning that
Barish believed was improper and which angered him. After
the cross-examination, the court called a recess.

It is the events that took place during that recess on
January 12, 1999 that ultimately led to the sanctions
against Barish. These facts are not really disputed by the
parties. Outside the presence of the District Judge or the
jury, but apparently in the presence of several witnesses,
Barish approached Gallagher with his fists cocked and
threatened to kill him. Barish was screaming when he
threatened Gallagher. Barish called Gallagher a"fat pig", a

                                  2
"mother f-----," and "lower than whale s----." App. at 456-
459. These threats culminated with Barish's assistant,
Randy Zevin, having to physically pull Barish away from
Gallagher. According to Barish's own testimony at the
hearing he stated that he said "if you come around me, I'm
going to kill you," J.A. at 454, which in his brief before this
court he explains as meant to be "a warning to Mr.
Gallagher (albeit in an admittedly heated and hyperbolic
fashion) to stay away from him in the future." Br. of
Appellant at 15 n.10.

After the recess, the court summoned a United States
Marshal and declared a mistrial. The court stated,"The
constant bickering and lack of gentlemanly conduct in the
courtroom in front of the jury was of such a nature that I've
never seen it before." App. at 257-258. Barish objected, but
the court noted that Barish threatened Gallagher's life in
the presence of witnesses. Barish denied that he threatened
Gallagher's life. The court, however, declared that the
matter was over and asked both counsel to leave the
courtroom.

Amtrak, after obtaining new counsel, moved for sanctions
against Barish. The District Court held a hearing on March
2, 2000 at which both Barish and Gallagher testified.
Barish stated that his conduct "was not appropriate. I
shouldn't have done it. I should have been able to control
myself. . . . it's never going to happen again, I can tell you
that." App. at 449. In addition, he admitted that"I think
most of the things he said that I said, I did." App. at 454.
However, Barish said that he would not have really killed or
attacked Gallagher, as they were friends. Gallagher testified
that Barish did threaten to kill him and that even though
"as big as I am, I shouldn't have been that fearful of being
stricken, . . . I felt I was going to take a hit." App. at 489.

In an April 26, 2001 order, the District Court found, inter
alia, that:

       (1) Barish's outrageous profane behavior during the
       Court's recess on January 12, 1999 was in bad
       faith.

       (2) Barish's conduct resulted in the needless waste of
       judicial resources.

                               3
       (3) Barish imposed upon his client and his adversary
       emotional and financial costs.

       (4) Barish needlessly squandered the time and service
       of the empaneled jury.

       (5) Barish inexcusably delayed for both parties a
       determination of their rights and status under the
       law.

       (6) Barish's prevarication impugned the integrity and
       dignity of the proceedings and required the
       intervention of the U.S. Marshal's Service to escort
       him from the courtroom.

Comuso v. Nat'l R.R. Passenger Corp., No. 97-7891, slip op.
at 5 (E.D. Pa. filed Apr. 25, 2000).

The court considered its authority to impose sanctions
under 28 U.S.C. S 1927, but held that S 1927 only applied
to abuses of the judicial process, i.e., conduct while in
court. However, the court noted that it had inherent powers
to discipline attorneys practicing before it, citing to our
decision in Matter of Abrams, 521 F.2d 1094, 1099 (3d Cir.
1975). After noting that Barish had engaged in a pattern of
misconduct before other trial courts,1 the District Court
ordered Barish to pay Amtrak reasonable fees and costs in
litigating the Comuso matter. The court also disqualified
Barish from the continued representation of Comuso.
Finally, the court referred the opinion and record to the
Disciplinary Board of the Supreme Court of Pennsylvania
for review and consideration.
_________________________________________________________________

1. The court cited, inter alia, Spruill v. National RR Passenger Corp.,
1995
WL 534273 (E.D.Pa. Sept. 5, 1995) (vacating plaintiff 's verdict and
stating that Barish's conduct was "intemperate, inappropriate, and
disrespectful" and "shocked the conscience of the court"); McEnrue v.
New Jersey Transit Rail Operations, Inc., No. 90-4728 (D.N.J. Sept. 30,
1993) (vacating multi-million dollar verdict because of Barish's conduct);
Patchell v. National Railroad Passenger Corp., 1992 WL 799399 (E.D.Pa.
July 31, 1992) (ordering new trial because of Barish's outrageous trial
conduct); Bezerra v. National Railroad Passenger Corp., No. 97-1511
(Phila. County Ct. Common Pleas June 7, 1999) (referring to obscene
and intemperate language by Barish); Muni v. National Railroad
Passenger Corp., No. 97-1489, (Phila. County Ct. Common Pleas Jan. 21,
1999) (trial court admonished Barish for making improper remarks).

                               4
After Barish filed a timely appeal to this court, Amtrak
filed a motion to dismiss the appeal on the basis of lack of
jurisdiction. Subsequently, the District Court determined
that Barish should pay $13,285.61 in reasonable fees and
costs to Amtrak. Comuso v. Nat'l R.R. Passenger Corp., No.
97-7891, slip op. at 10 (E.D. Pa. filed Nov. 22, 2000). The
court also placed the underlying case on its civil suspense
file pending resolution of Barish's appeal. App. at 510.

II.

DISCUSSION

Barish argues that the motion for sanctions was untimely
as a matter of law and filed for a plainly improper purpose;
sanctions could not be imposed under the court's inherent
authority as a matter of law even assuming there was a
legal basis for the court to use its inherent power; it
committed reversible error by failing to conduct the
analyses as required by the controlling law; the findings of
law and fact that the District Court made are legally
erroneous and are clearly insufficient to warrant the
sanctions imposed; the District Court violated rules of law
and ethics in its referral to the Disciplinary Board; and the
District Court imposed sanctions in violation of Barish's
due process rights. Amtrak responds that this court lacks
jurisdiction over the appeal, the sanctions motion was not
filed for an improper purpose, the sanctions motion was
timely, the District Court did not abuse its discretion in
ordering the sanctions, the manner of the District Court's
referral to the Disciplinary Board was not improper, and
Barish was afforded due process.

In the view that we take of this case, we will not consider
any of the contentions as to the merits of the sanctions
order because we focus on our jurisdiction to hear this
appeal. Under 28 U.S.C. S 1291, "[t]he courts of appeals . . .
shall have jurisdiction of appeals from all final decisions of
the district courts of the United States." This rule requires
parties to "raise all claims of error in a single appeal
following final judgment on the merits." Firestone Tire &
Rubber Co. v. Risjord, 449 U.S. 368, 374 (1981).

                               5
The Supreme Court has recognized that a narrow class of
prejudgment orders may be immediately appealable. Such
"collateral orders" must (1) "conclusively determine the
disputed question"; (2) "resolve an important issue
completely separate from the merits of the action"; and (3)
"be effectively unreviewable on appeal from a final
judgment." Coopers & Lybrand v. Livesay, 437 U.S. 463,
468 (1978). These requirements must be stringently applied
in order to prevent the exception from swallowing the
general rule. See Digital Equip. Corp. v. Desktop Direct, Inc.,
511 U.S. 863, 868 (1994).

In the case at hand, the District Court has not yet
entered a final judgment on the merits.2 Therefore, we must
consider whether the District Court's sanctions order meets
the three prongs of the collateral order doctrine. Amtrak
concedes that the order is conclusive as to Barish's
disqualification from the case and the referral of Barish's
behavior to the Disciplinary Board.

Furthermore, the court has since quantified the amount
of costs and fees, and determined that Barish should pay
$13,285.61 to Amtrak. Thus, the order satisfies the first
prong of the collateral order doctrine. See Lazorko v. Pa.
Hosp., 237 F.3d 242, 248 (3d Cir. 2000) ("An award of
sanctions is not a final order, and thus not appealable,
until the district court determines the amount of the
sanction").

We turn next to consider whether the District Court's
order meets the second and third prongs of the
collateral order doctrine, importance/separateness and
unreviewability. The second prong has been described as a
two-part inquiry. See, e.g., Martin v. Brown, 63 F.3d 1252,
1261 (3d Cir. 1995). We must ask whether "review now is
less likely to force the appellate court to consider
approximately the same (or a very similar) matter more
_________________________________________________________________

2. It appears that Barish's appeal of the sanctions order, which includes
Barish's disqualification to represent Comuso, is one of the factors that
has held up resumption of the trial proceedings. We note that the court's
order did not disqualify other lawyers in Barish's firm, and Amtrak's
brief states that another lawyer has entered an appearance for Comuso
in the District Court.

                                6
than once, and also seems less likely to delay trial court
proceedings (for, if the matter is truly collateral, those
proceedings might continue while the appeal is pending)."
Johnson v. Jones, 515 U.S. 304, 311 (1995). We must also
consider "the value of interests that would be lost through
rigorous application of a final judgment requirement."
Digital Equip., 511 U.S. at 878-79.3 Regarding the third
prong, the "order must be such that review postponed will
be review denied." Martin, 63 F.3d at 1261 (quotation
omitted).

The appealability of a district court's order disqualifying
the plaintiff 's attorneys from a civil case was at issue in
Richardson-Merrell, Inc. v. Koller, 472 U.S. 424 (1985). In
that case, the trial court disqualified counsel and their law
firm and revoked their pro hac vice admissions for releasing
certain information to the media and improper contacts
with a witness. The Court of Appeals reversed after holding
that it had jurisdiction to entertain the appeal pursuant to
28 U.S.C. S 1291. The Supreme Court granted certiorari
and reversed.

The Court noted that it had previously held that an order
denying a motion to disqualify counsel in a civil case was
not subject to immediate appeal but it had left open the
issue of the appealability of an order granting
disqualification. Id. at 431-32 (citing Firestone Tire &
Rubber Co. v. Risjord, 449 U.S. 368, 372 (1982)). The Court
then noted that thereafter it held that "a district court's
pretrial order granting disqualification of defense counsel in
a criminal case was not immediately appealable." Id. at 432
(citing Flanagan v. United States, 465 U.S. 259 (1984)). The
Court then decided that the same was true for a
disqualification order in a civil case. Regarding the second
of the prong, the Court stated that a disqualification order,
"though `final,' is not independent of the issues to be tried."
Id. at 439. The Court noted that "[o]nly after assessing the
effect of the ruling on the final judgment could an appellate
court decide whether the client's rights had been
_________________________________________________________________

3. The "importance" requirement has been alternatively considered in
connection with the third prong of the collateral order doctrine. See
Digital Equip., 511 U.S. at 878.

                               7
prejudiced. If respondent were to proceed to trial and there
receive as effective or better assistance from substitute
counsel than the disqualified attorney could provide, any
subsequent appeal of the disqualification ruling would fail."
Id. at 439.

Significantly, the Court rejected a case-by-case approach
to determining whether a particular ruling would be
immediately appealable. It recognized that "[e]ven if some
orders disqualifying counsel are separable from the merits
of the litigation, many are not." Id. at 439. Therefore, it
concluded that "orders disqualifying counsel in civil cases,
as a class, are not sufficiently separable from the merits to
qualify for interlocutory appeal." Id. at 440 (emphasis
added).

The Court further held that a "disqualification order can
be reviewed as effectively on appeal of a final judgment as
on an interlocutory appeal." Id. at 438. In so holding, the
Court expressly rejected the argument that "the disqualified
attorney's personal desire for vindication [is] . . . an
independent ground from interlocutory appeal." Id. at 434-
35. The Court recognized that a disqualified attorney "may
well have a personal interest in pursuing an immediate
appeal, an interest which need not coincide with the
interests of the client." Id. at 435."As a matter of
professional ethics, however, the decision to appeal should
turn entirely on the client's interest." Id. (citing Model Rules
of Prof 'l Conduct R. 1.7(b), 2.1 (1985)).

Amtrak argues that Richardson-Merrell is dispositive here.
Barish seeks to distinguish Richardson-Merrell on the
ground that Richardson-Merrell considered only the
disqualification of an attorney and did not consider the
appealability of other sanctions, such as the imposition of
reasonable fees and costs. He contends that his case is
more analogous to two decisions from this court which
upheld jurisdiction even after Richardson-Merrell.

In Eavenson, Auchmuty & Greenwald v. Holtzman , 775
F.2d 535 (3d Cir. 1985), we considered the appealability of
a sanctions order imposed under Fed. R. Civ. P. 11 against
the plaintiff 's attorney for the amount of $1,642.50 in
reasonable fees and costs. The attorney immediately

                               8
withdrew from the case and the plaintiff obtained new
counsel and proceeded with the litigation. The sanctioned
attorney appealed the Rule 11 sanctions order. We first
recognized that the first two prongs of the collateral order
doctrine were satisfied because the order "finally and
conclusively determines the sanctions issue, and the
resolution thereof is completely separate from the merits of
the case." Eavenson, 775 F.2d. at 538.

We also then concluded that the order was effectively
unreviewable on appeal from final judgment, reasoning that
because the sanctioned attorney was "no longer connected
with the merits of the case, he has an immediate interest in
challenging the sanction which is not shared by the parties
to the suit or by counsel to a party." Id. at 538-39.
Moreover, "the possibility exists that appellant's former
client may ultimately prevail on the merits, or settle the
case; in either of those situations, it is not clear that
appellant would be able to appeal from final judgment." Id.
at 539. In addition, "it is quite possible, even likely, that
appellant, as a non-party, may be unaware that the suit
has been terminated so as to be able to file a timely appeal.
Thus, appellant might never be able to receive any appellate
review of the sanctions order if he is denied that
opportunity now." Id. We therefore concluded that the
sanctions order was an immediately appealable collateral
order.

The second case relied on by Barish, In re Tutu Wells
Contamination Litig., 120 F.3d 368 (3d Cir. 1997), involved
what we described as "heavy sanctions" against a law firm
and a corporate client for discovery abuses: a fine of
$250,000 and $750,000 respectively and the suspension of
two attorneys from practicing law in the district court for
three years and a third attorney for a year. Id. at 371-72.
Citing to Eavenson, we ruled that the sanctions order was
immediately appealable by the attorneys. In re Tutu Wells,
120 F.3d at 378. Regarding the separateness prong, we
recognized that "our review of the order suspending [the
attorneys] would not force us to examine the merits of the
case at all." Id. We then noted that the suspended attorneys
were no longer in the underlying litigation and therefore
could not effectively appeal the sanctions. Lastly, we stated

                               9
that the suspension from legal practice "impose[s]
significant burdens on the reputation and career
opportunities of the sanctioned attorney." Id. at 379
(quotation omitted). Therefore, we held that we had
jurisdiction over the appeal of that order.

Barish seeks to analogize his appeal to those in Eavenson
and In re Tutu Wells because he is no longer part of the
litigation and will have difficulty in appealing the decision.
Barish's analogy fails for several reasons. First, neither of
those cases involved a disqualification of an attorney from
the case. The sanction in Eavenson was merely an award of
attorney's fees and costs, and the attorney withdrew after
the imposition of the sanctions. In re Tutu Wells involved a
suspension from practicing law, which is a far more severe
penalty than mere disqualification from a case. The
principal concern when an attorney is disqualified from a
case is with the party's ability to choose his/her lawyer and
to proceed with the litigation, whereas the suspension of an
attorney from practicing law implicates the attorney's ability
to pursue other career opportunities.

Barish argues that the District Court's order has imposed
burdens on his reputation and career opportunities, and
notes that a district court in New Jersey recently rejected
Barish's pro hac vice application, based in part on the
sanctions order in Comuso.4 Even if the force of our
reasoning in In re Tutu Wells remained unqualified, it would
not require our acceptance of jurisdiction here as the
disqualification of Barish from one case and the denial of
his pro hac vice application is not of the same magnitude as
a suspension of the practice of law for several years.

Of more direct significance is the Supreme Court's
decision in Cunningham v. Hamilton County, Ohio , 527 U.S.
198 (1999), which was issued after our decisions in
Eavenson and In re Tutu Wells. In Cunningham, after
holding that the plaintiff 's attorney engaged in a pattern of
_________________________________________________________________

4. We note that a panel of this court recently dismissed for lack of
appellate jurisdiction Barish's appeal from that order denying his pro hac
vice application. See Kohlmayer v. National Railroad Passenger Corp.,
Nos. 01-1202 & 01-1508, Order Dismissing Appeal for Lack of
Jurisdiction, July 16, 2001.

                               10
discovery abuses, the district court disqualified that
attorney from the case and ordered her to pay $1,494 in
reasonable fees and costs pursuant to Fed. R. Civ. P. 37(a).
The attorney then appealed. The court of appeals dismissed
the appeal for lack of jurisdiction and the Supreme Court
affirmed.

The Court stated that "[w]e do not think . . . that
appellate review of a sanctions order can remain completely
separate from the merits." Cunningham, 527 U.S. at 205. In
particular, "[a]n evaluation of the appropriateness of
sanctions may require the reviewing court to inquire into
the importance of the information sought [in discovery] or
the adequacy or truthfulness of a response." Id. The Court
further determined that the sanctions order could be
effectively reviewed on appeal from a final judgment. The
Court noted, as it did in Richardson-Merrell, that an
attorney might have a personal interest in pursuing an
immediate appeal of sanctions but that " `the decision to
appeal should turn entirely on the client's interest.' " Id. at
207 (quoting Richardson-Merrell, 472 U.S. at 435).

The Court added: "[W]e do not think that the
appealability of a Rule 37 sanction imposed on an attorney
should turn on the attorney's continued participation [in
the litigation]. Such a rule could not be easily administered
. . . [and] could be subject to abuse if attorneys and clients
strategically terminated their representation in order to
trigger a right to appeal with a view to delaying the
proceedings in the underlying case." Id. at 209. The Court
expressly recognized that while "our application of the final
judgment rule in this setting may require nonparticipating
attorneys to monitor the progress of the litigation after their
work has ended, the efficiency interests served by limiting
immediate appeals far outweigh any nominal monitoring
costs borne by attorneys." Id. Lastly, the Court noted that
while declining jurisdiction would impose some hardships
on an attorney, it was for Congress and not the courts to
amend 28 U.S.C. S 1291 to allow for immediate appeal of
certain orders. Id. at 210.

Although the Cunningham decision did not refer to
Eavenson and In re Tutu Wells, it chose not to follow the
rationale of those cases. The fact that a trial court's order

                               11
disqualifies an attorney from a case (meaning that the
attorney is no longer part of the litigation) does not make
that order immediately appealable. Rather, that attorney
must monitor the litigation and wait to appeal the
sanctions order after there has been a final judgment on
the merits. Therefore, our decisions in Eavenson and In re
Tutu Wells are no longer good law to the extent that they
conflict with Cunningham.

Barish attempts to distinguish Cunningham by noting
that the Court's decision in that case specifically considered
a sanctions order imposed under Fed. R. Civ. P. 37 for
discovery abuses whereas in this case the District Court
imposed sanctions under its inherent powers for conduct
that occurred outside the court. The distinction is not
dispositive. First, Barish's brief on the merits of his appeal
seeks to defend or at least explain his actions by reviewing
the trial tactics and strategy employed by both Gallagher
and himself. See Br. of Appellant at 10-16. Any
consideration of the sanctions imposed against him would
necessitate consideration of the merits of the litigation. But
more important is that the 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; Richardson-Merrell, 472 U.S. at 439.
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. We recognize that Barish has
a personal interest at stake that may be different from his
client's interests. But, as the Supreme Court noted in
Richardson-Merrell and Cunningham, the interests of the
client must come first. Comuso obviously has an interest in
a speedy resolution of his claims, but Barish's appeal has
already delayed the action from proceeding to a new trial.
App. at 510. That Barish may have to monitor the progress

                               12
of the litigation in order to appeal upon final judgment is
not dispositive. See Cunningham, 527 U.S. at 209.
Therefore, the order imposing sanctions on Marvin Barish
is not immediately appealable under 28 U.S.C. S 1291.

Barish alternatively argues that we should issue a writ of
mandamus to the District Court. A writ of mandamus
should be issued only in extraordinary circumstances,
where there has been a clear abuse of discretion or conduct
amounting to the usurpation of judicial power. See Mallard
v. United States Dist. Court, 490 U.S. 296, 309 (1989).
Petitioners for the writ must also show "that they lack
adequate alternative means to obtain the relief they seek"
and that their right to issuance of the writ is"clear and
indisputable." Id. In light of Barish's outrageous conduct,
and the Supreme Court's affirmation of a district court's
inherent power to discipline attorneys appearing before it,
see Chambers v. NASCO, Inc., 501 U.S. 32, 50 (1991), we
cannot hold that the District Court's sanction in this case
exceeded the boundaries of appropriate judicial response
warranting issuance of a writ of mandamus.

III.

CONCLUSION

For the foregoing reasons, we will dismiss the appeal for
lack of jurisdiction and deny the petition for a writ of
mandamus.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

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