
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                                            ____________________        No. 93-1554                               UNITED STATES OF AMERICA,                                 Plaintiff, Appellee,                                          v.                          789 CASES OF LATEX SURGEON GLOVES,                                 Defendant, Appellee,                                                                                      __________                                HARRY ANDUZE-MONTANO,                                      Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                    [Hon. Jaime Pieras, Jr., U.S. District Judge]                                             ___________________                                 ____________________                                        Before                                 Breyer, Chief Judge,                                         ___________                         Torruella and Selya, Circuit Judges.                                              ______________                                 ____________________            Guillermo Ramos Luina on brief for appellant.            _____________________                                 ____________________                                  December 30, 1993                                 ____________________                      TORRUELLA, Circuit  Judge.  The question  before us                                 ______________            is   whether  the  district  court,  under  its  inherent  or            supervisory powers, properly  ordered an attorney to  pay the            court reporter for a trial transcript.  We conclude the order            must be reversed.                                          I.                                          _                      Appellant is an attorney who represented a claimant            in a forfeiture action.  At  the close of the 13-day non-jury            trial in that  case, the court asked the  reporter to prepare            the  transcript on  an expedited  basis  so that  the parties            could  use it  in preparing  post-trial  memoranda.   Several            months  later, before  the district  court  had rendered  any            decision,  appellant moved to withdraw explaining that he had            been unable to  communicate with his client, he  had not been            paid for  his services, and  the client had not  produced the            funds  for the trial  transcript.   The district  court judge            issued an  order holding the  motion to withdraw  in abeyance            until new counsel  filed an appearance.   Three weeks  later,            the  court  reporter  asked  the  court  to  order  appellant            personally  to pay  $4,519 for  the trial  transcript he  had            ordered,  but  not  yet  picked  up.    Appellant  filed   no            opposition to the court reporter's  motion, and a month later            the judge  issued an order  requesting appellant  to pay  the                                         -2-            reporter within the week.1   The same day, the judge rendered            his  decision  in   the  forfeiture  action,  found   against            appellant's  client, and ordered the articles destroyed.  The            next month, the court reporter said she had not been paid and            asked the  court to enforce  its August 19 order.   Appellant            opposed  and sought reconsideration  of the August  19 order.            He explained that the transcript  had been ordered on  behalf            of his client,  but he had been unable to  collect either his            own fee or  the transcript amount.  Moreover,  he argued that            the  court lacked jurisdiction  over him with  respect to the            demand for payment.                      The    district    court    rejected    appellant's            jurisdictional argument, explaining,  without citation to any            authority, as follows:                      The Court's power to order an attorney to                      pay for stenographic transcripts which he                      has  ordered  from   the  official  court                      reporter   stems    from   the    summary                      jurisdiction  possessed  by  courts  over                      attorneys as their  officers.  The courts                      have  always  possessed  jurisdiction  to                      compel an attorney to observe the  duties                      incident  to  his  professional relations                      towards  his  clients,  and  towards  the                      other  officers of  the Court,  including                      court  reporters.  It  is a court's right                                            ____________________            1.  The order, dated August 19, 1992, read as follows:                      Order  to  Att.  Harry  Anduze --  Please                      proceed to  pay Mrs. Barbara  Dachman the                      sum  of  $4,519.00  for her  services  as                      requested  in  motion   subject  of  this                      order.   Payment  should be  made  on  or                      before August 26, 1992.                                         -3-                      and duty to supervise attorneys and court                      reporters in their  actions pertaining to                      matters concerning litigation  before the                      court, as they are  both officers of  the                      court.  Thus, the  Court has jurisdiction                      over attorney  Anduze even though  he has                      not been served with process.            United States v. 789 Cases  of Latex Surgeons' Gloves, 826 F.            _____________    ____________________________________            Supp. 589, 590 (D.P.R. 1993).  With regard to the merits, the            court  acknowledged  the  existence of  contrary  views,  but            adopted the following rule:                      [T]he Court believes that  in the absence                      of express notice to the contrary,  court                      officials and  persons connected,  either                      directly or indirectly  with the progress                      of   litigation,   may    safely   regard                      themselves as dealing  with the attorney,                      rather than with the client. . . .  There                      is nothing  unfair about  this rule,  the                      Court agrees  with [Monick  v. Melnicoff,                                          ______     _________                      144  A.2d 381 (D.C.  Mun. Ct. App. 1958)]                      in that:                           If  an attorney  in ordering  a                           transcript or a  brief does not                           intend    to    bind    himself                           personally,   he   may    avoid                           responsibility  by  making  his                           position clear.  The reporter .                           .  .  then  on  notice  of  the                           nonliability  of the  attorney,                           may take such steps as he feels                           are    necessary    for     his                           protection   before   extending                           credit to a client whose credit                           standing and responsibility are                           often wholly unknown to him.            789 Cases,  826 F. Supp.  at 590-91.  While  neither side had            _________            cited any Puerto Rico law  on the subject, the court  did not            determine   how  a  Puerto   Rico  court  would   decide  the            contractual dispute because  it believed the matter  could be                                         -4-            "resolved independently of  local law," id., at 590  n.3, and                                                    ___            it ordered appellant to pay the court reporter.2                      Appellant  has now appealed  from the May  12, 1993            payment order.                                         II.                                         __                      We  deal first with a jurisdictional question.  The            court reporter argues no timely appeal from the final payment            order has been filed and  hence we should dismiss the appeal.            She contends that  the payment order  was the court's  August            19,  1992 order quoted  in note one,  that appellant's motion            for reconsideration,  filed on  September 22,  1992 past  the            period provided in Rule 59(e), would not have tolled the time            for appealing from  the August 19, 1992 under  the version of            Fed. R. App. P. 4(a)(4) in effect prior  to December 1, 1993;            and that appellant's  May 24, 1993 notice of  appeal from the            court's  May  12,  1993  order  denying  reconsideration  and            ordering payment does not bring before us the August 19, 1992            order.    Under  the principle  that  a  post-judgment motion            asking  the court to change its disposition solely because of                                                        ______            legal  error must  be  brought under  Rule  59(e) within  the            rule's  10-day  period, Rodriquez-Antuna  v.  Chase Manhattan                                    ________________      _______________            Bank Corp., 871 F.2d  1, 2 (1st Cir. 1989) (dispute  over how            __________                                            ____________________            2.  We point  out that  we take no  position on  the question            whether the substantive rule of  decision in a case like this            derives from  federal or state  law.  See Mathewson  Corp. v.                                                  ___ ________________            Allied Marine Indus.,  Inc., 827 F.2d 850, 853  n.3 (1st Cir.            ___________________________            1987).                                         -5-            statute  of limitations  should  be  computed not  cognizable            under Rule 60(b));  Silk v. Sandoval, 435  F.2d 1266, 1267-68                                ____    ________            (1st Cir.) ("If  the court merely wrongly decides  a point of            law,  that  is  not  `inadvertence,  surprise,  or  excusable            neglect'" within the meaning of Rule 60(b)(1)), cert. denied,                                                            ____________            402 U.S. 1012 (1971), the appeal from the May  12, 1993 order            would avail appellant nothing, the argument would continue.                      We disagree for two reasons.  First, the August 19,            1992 order was arguably precatory.  It did not clearly direct            payment,  but  rather  asked  appellant  to  please  pay  the            reporter, a phrasing which may  have led appellant to believe            the  directive did  not carry  the  force of  a normal  court            order.   Second,  Rodriquez-Antuna  does  not  apply  because                              ________________            appellant did not simply argue that the August 19, 1992 order            was infected by  error of substantive law.  Rather, appellant            advanced a  non-frivolous argument  that the  order was  void            because the court lacked jurisdiction to order him to pay the            court reporter, a matter  the district court had  not earlier            addressed.   Under these circumstances, we conclude that even            if the August 19, 1992 order was a final judgment  from which            an immediate appeal could have been filed, appellant's motion            for reconsideration was properly  entertainable under Fed. R.            Civ. P. 60(b).  As appellant filed a timely notice of  appeal            from the court's  May 12, 1993 order  denying reconsideration            and ordering appellant to pay the court reporter, we deny the                                         -6-            court reporter's  motion to  dismiss and  motion for  further            briefing time and proceed to the merits.                                         III.                                         ___                      Some courts,  applying agency  principles, conclude            an  attorney is not liable for  litigation expenses absent an            express  or  implied  undertaking to  be  bound,  while other            courts  treat the attorney,  rather than  the client,  as the            principal  and impose  liability on  the  attorney absent  an            express disclaimer  of responsibility.   See  Jay M.  Zitter,                                                     ___            Annotation,  Attorney's   Personal  Liability   for  Expenses                         ________________________________________________            Incurred in  Relation to Services  for Client, 66  A.L.R. 4th            _____________________________________________            256,  262  (1988)   (surveying  the  variety   of  approaches            followed).  Here the district court purported to exercise its            supervisory powers to devise a uniform rule to be followed in            the federal district court in Puerto Rico and applied the new            rule   to  conduct   pre-dating   the  rule's   announcement.            Regardless of  whether federal or state law supplies the rule            of  decision (a  matter on which  we do not  opine, see supra                                                                ___ _____            n.2), and regardless  of which of the surveyed  approaches to            an attorney's  payment responsibility  represents the  better            view, we think the district court's handling of the situation            did not satisfy the demands of fundamental fairness.                      The  situation  is  similar  to that  presented  in            Boettcher  v.  Hartford Ins.  Group,  927 F.2d  23  (1st Cir.            _________      ____________________            1991).  There, the district court invoked its inherent powers                                         -7-            to impose jury costs on a plaintiff and her attorney who  had            settled on the morning of trial after jurors had reported for            duty.   No  local rule  provided for  jury costs  under those            circumstances,  and  counsel  had  had  no  notice  prior  to            settling that jury  costs would be imposed.   We reversed the            sanction because it was unfair for the court to  use the case            as  the first step  in adopting a  new rule.   The "[l]ack of            fair notice  is fatal to  [the court's] exercise  of inherent            power . .  ..  The law forbids  the imposition of a  new rule            without prior notice," we explained.  Id. at 26.                                                  ___                      We think the same is true here.  The district court            has no written local rule imposing liability on attorneys for            transcripts they order,3 and hence  the court should not have            invoked  its  inherent  powers  to  resolve  the  "transcript            payment" dispute summarily.                      The May 12,  1993 order directing appellant  to pay            the court reporter is reversed.                                  ________                                            ____________________            3.  We do  not purport to pass upon  the validity of any such            rule, were one to  be adopted.  Similarly, we  do not express            any view on  what remedial avenues remain open  to the unpaid            court reporter.                                         -8-
