             REVISED, July 20, 1998

         UNITED STATES COURT OF APPEALS
                  FIFTH CIRCUIT

                  ____________

                  No. 97-50341
                  ____________


PATTI FAIN SMITH,


                     Plaintiff - Appellee,

versus


JEAN S SMITH; ROBERT PAT SMITH, JR.; TRI-COAST
LIMITED PARTNERSHIP,


                     Defendants

JEAN S SMITH


                     Defendant - Appellant.

                  ____________

                  No. 97-50575
                  ____________


PATTI FAIN SMITH,


                     Plaintiff - Appellee,

versus


JEAN S SMITH; ROBERT PAT SMITH, JR.; TRI-COAST
LIMITED PARTNERSHIP,


                     Defendants - Appellants.
             Appeal from the United States District Court
                   for the Western District of Texas


                          June 29, 1998
Before KING, EMILIO M. GARZA, and DeMOSS, Circuit Judges.

EMILIO M. GARZA, Circuit Judge:

     In appeal No. 97-50341, Jean S. Smith (“Defendant Smith”)

appeals the district court’s judgment finding her in criminal

contempt and imposing a 180-day jail term.              In the consolidated

appeal, No. 97-50575, Jean Smith and her son, Robert P. Smith, Jr.

(collectively “defendants”), appeal the district court’s entry of

a default judgment against them in a related case.             We reverse the

district court’s finding of criminal contempt in appeal No. 97-

50341, and remand to the district court for further proceedings if

necessary.      We   affirm   the   district    court’s     entry    of   default

judgment in appeal No. 97-50575.

                                      I

     Although    the   underlying    facts     in   these   two     consolidated

appeals are not greatly disputed, this is the third time that we

have seen these same parties on appeal and the second time that we

have been asked to review the district court’s finding of contempt

against Defendant Smith.       See Smith v. Smith, No. 96-50569, slip

op. at 1 (5th Cir. Dec. 3, 1996) (Smith I) (reversing criminal

contempt finding and affirming civil contempt finding); Smith v.

                                     -2-
Smith, No. 96-50494, slip op. at 1 (5th Cir. June 30, 1997) (Smith

II) (affirming jury verdict in favor of plaintiffs).           In order to

understand    the   district    court’s    obvious    and   understandable

frustration with the conduct of the defendants during the course of

this litigation))particularly Defendant Smith’s conduct))a full

understanding of the procedural history is necessary.          As we noted

in the second appeal, “this lawsuit involves a family sadly torn

apart.”   Smith II, slip op. at 1.

     These consolidated appeals arise out of two separate fraud

suits brought by the plaintiffs, Patti Fain Smith (“Plaintiff

Smith”) and her late husband W. Blake Smith, against their former

daughter-in-law, Jean Smith, and their grandson Robert P. Smith,

Jr. The first fraud suit (“1994 suit”) alleged that the defendants

had fraudulently convinced the plaintiffs to transfer most of their

assets to the defendants.       Following a jury trial in this suit

before the Honorable Walter S. Smith, Jr., Plaintiff Smith and her

husband, now deceased, prevailed on the merits and received a

substantial   dollar   award.      We    affirmed    this   verdict   in   an

unpublished decision, see Smith II, slip op. at 4-8, and the jury

verdict is not directly the subject of either of these appeals.

     Plaintiff Smith’s efforts to collect the jury verdict in the

1994 suit, however, gave rise to the events that triggered appeal

No. 97-50341. During the extended postjudgment proceedings for the

1994 suit, the district court has now twice held Defendant Smith in


                                   -3-
criminal contempt of court.         See Smith I, slip op. at 1.       In the

first contempt proceedings held on July 26, 1996, the district

court held Defendant Smith in both civil and criminal contempt for

failing to appear and give testimony at an oral deposition as

ordered by the court.1    The district court ordered that Defendant

Smith be held in the custody of the U.S. Marshal for a period of

ten days (i.e., the criminal contempt portion) and that she be

incarcerated until she purged herself from contempt by giving her

deposition (i.e., the civil contempt portion).             Defendant Smith

immediately filed a notice of appeal to our court and petitioned

for a stay of the district court’s order pending appeal.                  We

granted a stay of the district court’s order, and on December 3,

1996,   after   considering   the    merits   of   her   appeal,   summarily

reversed and vacated the criminal portion of the district court’s



    1
          The district court had issued an order on June 12, 1996,
compelling Defendant Smith to appear at an oral deposition on June
21, 1996. Defendant Smith declared bankruptcy on June 19, 1996,
and failed to appear at her scheduled deposition. The district
court subsequently issued Defendant Smith an order to show cause
why she should not be held in contempt of court. This order did
not specify that Defendant Smith could be held in criminal
contempt. Following the show cause hearing on July 26, 1996, the
district court rejected Defendant Smith‘s argument that her
declaration of bankruptcy gave her an automatic stay of the court’s
order to appear for the deposition. See Smith v. Smith, No. W-94-
CA-366, slip op. at 4-6 (W.D. Tex. July 26, 1996). The district
court explained that Defendant Smith “chose not to attend the
deposition without requesting that this Court stay or postpone the
deposition or for any clarification of the order [and that] her
filing for bankruptcy only stayed the proceedings against her
personally, not against her in her representative capacity.” Id.
at 6.

                                     -4-
contempt order because the court failed to give adequate notice or

follow the procedures set forth in FDIC v. LeGrand, 43 F.3d 163,

169-70 (5th Cir. 1995).     See Smith I, slip op. at 1.          At the same

time, we affirmed the civil portion of the contempt order and

“remanded to the district court for enforcement.”          Id.   Our mandate

issued on December 30, 1996.

     In between the issuance of our opinion in Smith I and the

issuance of our mandate, the parties continued to file a flurry of

motions in the district court, and the plaintiffs continued to seek

another order compelling Defendant Smith to submit to an oral

deposition and produce documents on the status of her finances.

Instead of issuing an arrest warrant and incarcerating Defendant

Smith until she had submitted to a deposition (which would have

been consistent with our opinion and mandate in Smith I), the

district   court,   on   December   17,   1996,   issued    another   order

compelling Defendant Smith to submit to an oral deposition and to

produce documents at opposing counsel’s law firm on December 30,

1996.2     Although counsel for Defendant Smith appeared on the


     2
          While her first contempt was pending on appeal in Smith
I, Defendant Smith filed several motions in the district court to
stay enforcement of further contempt proceedings until she was
better able to cope with the stress and her rapidly deteriorating
mental health; the district court denied each of these motions.
During this time, the district court also granted the plaintiffs’
motion for a mental examination of Defendant Smith to determine
whether she was mentally capable of appearing and defending herself
at a show cause hearing that the district court had scheduled for
November 25, 1996.     The doctor who conducted the examination
concluded that Defendant Smith was mentally capable and competent

                                    -5-
scheduled date, Defendant Smith did not.    Counsel for Defendant

Smith acknowledged on the record that he transmitted to his client

the district court’s order that she appear for a deposition on

December 30, 1996, and that she had gathered documents responsive

to this order. Counsel for Defendant Smith also provided some

explanation (both at the time of the scheduled deposition and later

in response to the plaintiffs’ motion for a show cause order) as to

why Defendant Smith did not appear at the December 30, 1996

scheduled deposition. Counsel for Defendant Smith alleged that she

had checked in for her flight on December 29, 1996, to come to Waco

for the deposition, but that she missed her flight when a piece of

her carry-on luggage was stolen (or misplaced).   According to her

counsel, she then became very upset, someone called the airport

police and her psychiatrist, and she was taken to the hospital,

thereby causing her to miss her scheduled December 30 deposition.

While Plaintiff Smith vigorously disputes this characterization of

the incident, the district court never made a factual finding as to

the reason for Defendant Smith’s absence, and we express no opinion



to appear.    The scheduled show cause hearing did not occur,
however, because the plaintiffs sought and the district court
granted a continuance. On November 21, 1996, the district court
then issued an order compelling Defendant Smith to produce
documents and submit to an oral deposition on December 9, 1996.
Defendant Smith failed to appear for this deposition, claiming that
she was hospitalized following an overdose of psychiatric
antidepressant medications. Defendant Smith’s failure to appear at
the December 9, 1996 deposition led the plaintiffs to seek another
order compelling Defendant Smith to submit to an oral deposition.
The district court issued this order on December 17, 1996.

                               -6-
as to the veracity of her explanation, or indeed, whether it would

in any case justify her nonappearance.

       On December 31, 1996, the plaintiffs filed a motion seeking a

show cause order as to why Defendant Smith should not be held in

civil and criminal contempt.      Defendant Smith responded to the

plaintiffs’ motion by further explaining the reasons that she

missed the December 30 deposition and attaching copies of her

boarding pass and the airport incident report to substantiate her

explanation.    On February 13, 1997, the district court issued a

show cause order directing Defendant Smith to appear and show cause

on March 17, 1997, why she should not be held in criminal and civil

contempt.    Although her counsel again appeared on the scheduled

date, Defendant Smith failed to appear for the show cause hearing.

The district court instructed the court security officer to call

Defendant Smith’s name three times in the hallway. After receiving

no answer, the district court stated as follows:   “Apparently, she

has not appeared.     Then the Court will order her in contempt of

court for not appearing and for any other reason that we can think

of.”   Counsel for Defendant Smith stipulated on the record that he

received a copy of the court’s show cause order; he refused,

however, to answer opposing counsel’s question as to whether he

mailed Defendant Smith a copy of the order.      The district court

then adjourned the hearing without making any findings of fact or

conclusions of law.

       Subsequently, on March 31, 1996, without any further hearings

                                 -7-
or communication with either party, the district court sua sponte

issued an order holding Defendant Smith in criminal contempt

pursuant to 18 U.S.C. § 401(1).3            The court based its finding of

criminal contempt on the fact that Defendant Smith “has refused and

continues to refuse to comply with the terms of this Court’s Orders

dated December 30, 1996 and February 13, 1997.”4               The district

court commanded the United States Marshal to arrest Defendant Smith

and incarcerate her for a period of 180 days.             The court further

ordered that the matter be referred to the Office of the United

States Attorney for prosecution pursuant to 18 U.S.C. §§ 401(3) and

402.       The court’s judgment was entered on the civil docket for the

1994 suit on April 1, 1997.          Defendant Smith filed her notice of

appeal 28 days later.5

       Appeal     No.   97-50575   also   arises   from   Plaintiff   Smith’s

attempts to collect the jury verdict from the 1994 suit.              In order

       3
          18 U.S.C. § 401(1) states that “[a] court of the United
States shall have power to punish by fine or imprisonment, at its
discretion, such contempt of its authority, and none other, as))(1)
Misbehavior of any person in its presence or so near thereto as to
obstruct the administration of justice.”
       4
          December 30, 1996 was actually the date of Defendant
Smith’s court-ordered deposition, not the date of the court’s
order.   The court’s order compelling the deposition was issued
December 17, 1996. Because no order was issued on December 30, we
assume that the district court meant to reference the December 17
order.
       5
          At the time this case was submitted at oral argument,
Defendant Smith had not yet been incarcerated, and the U.S.
Attorney had not yet acted on the district court’s referral. On
April 29, 1998, however, Defendant Smith was arrested by the U.S.
Marshal’s Service and has been in custody since that time.

                                      -8-
to do so, Plaintiff Smith and her husband filed a second fraud suit

against the defendants in July 1996 (“1996 suit”), alleging that

the defendants had fraudulently transferred substantially all of

their property to a spendthrift trust in anticipation of the

plaintiffs’ 1994 suit.   On January 27 and 28, 1997, the defendants

failed to appear for scheduled depositions in connection with the

1996 suit.     The district court subsequently entered an order

requiring defendants to appear for depositions on February 20 and

21, 1997; yet again, the defendants failed to appear.       In June

1997, in light of the defendants’s failure to comply with the

discovery orders in the 1996 suit, and after the events stemming

from the 1994 suit had transpired, the district court entered

default judgment in the 1996 suit pursuant to FED. R. CIV. P.

37(b)(2)(C).   The default judgment ordered that certain fraudulent

transfers be rescinded, that a constructive trust and lien be

imposed in favor of the plaintiffs, and that exemplary damages in

the amount of $500,000 be awarded.    The defendants timely appealed

from this default judgment.

                                IIA

     In appeal No. 97-50341, Defendant Smith’s challenges the

district court’s finding of criminal contempt in the postjudgment

proceedings in the 1994 suit.    Because Defendant Smith filed her

notice of appeal 28 days after the court’s entry of the criminal

contempt judgment, we must first decide whether her notice of

appeal was timely.    The filing of a timely notice of appeal is

                                -9-
mandatory and jurisdictional.   See Smith v. Barry, 502 U.S. 244,

248, 112 S. Ct. 678, 682, 116 L. Ed. 2d 678 (1992); Harcon Barge

Co. v. D & G Boat Rentals, Inc., 746 F.2d 278, 283 n.2 (5th Cir.

1984). FED. R. APP. P. 4(b) states that the defendant in a criminal

case must file a notice of appeal within 10 days after entry of the

judgment; Rule 4(a) provides that a party in a civil case must file

a notice of appeal within 30 days after entry of the judgment.   See

FED. R. APP. P. 4(a)-(b).

     Plaintiff Smith argues that the 10-day time limit of FED. R.

APP. P. 4(b) applies because the district court held Defendant

Smith in criminal contempt.   Defendant Smith concedes that she was

held in criminal contempt,6 but argues that this was merely an

“order” in her underlying civil “case” and that we therefore should

apply the 30-day rule of Rule 4(a).    As Defendant Smith correctly

points out, this issue raises a question of first impression in our

Court))namely, which time limit applies for the notice of appeal

for a criminal contempt order issued in a civil case.   Nonetheless,

due to the unusual circumstances surrounding the entry of the



     6
          Both parties (and the district court) agree that
Defendant Smith’s penalty is a criminal, rather than a civil,
penalty. The district court’s order states that Defendant Smith is
to be incarcerated for 180 days; it is unconditional and there is
no way in which she can purge this penalty. As such, her penalty
is undoubtedly a criminal sanction. See LeGrand, 43 F.3d at 168-69
(holding that absolute penalty intended to punish is viewed as
criminal penalty); In re Rumaker, 646 F.2d 870 (5th Cir. 1980)
(holding that noncoercive, unconditional, and noncompensatory
penalty is criminal contempt).

                                -10-
judgment in this case, we ultimately need not answer the question

of whether Rule 4(a) or 4(b) applies.   Under the plain language of

the rules, regardless of which rule applies to Defendant Smith’s

appeal, her notice of appeal was timely.

     Of primary importance to the issue at hand is the fact that

the district court entered its criminal contempt order on the

existing civil docket for the 1994 suit and consistently has

docketed all of the motions and orders regarding the criminal

contempt on the civil docket for the 1994 suit.    The court’s entry

of the judgment on the civil docket is consistent with the federal

rules and requirements for entering civil judgments.     See FED. R.

APP. P. 4(a) (“A judgment or order is entered within the meaning of

this Rule 4(a) when it is entered in compliance with Rules 58 and

79(a) of the Federal Rules of Civil Procedure.”); FED. R. CIV. P.

79(a) (“The clerk shall keep a book known as ‘civil docket’ of such

form and style as may be prescribed by the Director of the

Administrative Office of the United States Courts . . . and shall

enter therein each civil action to which these rules are made

applicable.”); see also Harcon Barge, 746 F.2d at 281-82 (taking

judicial notice of the uniform practice of the district courts of

the Fifth Circuit for entering civil judgments).

     The court’s entry of the criminal contempt judgment on the

civil docket, however, is not consistent (at least for purposes of

determining the timeliness of the notice of appeal) with the


                               -11-
requirements for entering criminal judgments.     See FED. R. APP. P.

4(b); FED. R. CRIM. P. 55.   FED. R. APP. P. 4(b) states that the 10-

day time period for filing a notice of appeal begins to run from

“entry . . . of the judgment.”      The rule further clarifies that

“[a] judgment or order is entered within the meaning of [Rule 4(b)]

when it is entered on the criminal docket.”     FED. R. APP. P. 4(b)

(emphasis added).7   Thus, the 10-day time period of Rule 4(b) does

not begin to run until the order is entered on the criminal docket.

See United States v. Chagra, 735 F.2d 870, 872-73 (5th Cir. 1984).

     The issue we face, therefore, assuming that FED. R. APP. P.

4(b) applies, is whether Defendant Smith’s notice of appeal was

timely filed because the district court erroneously entered the

judgment on the civil docket.     In United States v. Thoreen, 653



     7
          F ED . R. CRIM. P. 55 states that “[t]he clerk of the
district court . . . shall keep records in criminal proceedings in
such form as the Director of the Administrative Office of the
United States Courts may prescribe. The clerk shall enter in the
records each order or judgment of the court and the date of such
entry is made.”      FED. R. CRIM. P. 55.    The Director of the
Administrative Office has provided that:

     Each order or judgment of the court is required to be
     entered in the criminal docket, and the entry must show
     the date entry is made. FED. R. CRIM. P. 55. A judgment
     or order is deemed to be entered for purposes of
     computing time for appeal when it is entered in the
     criminal docket. FED. R. APP. P. 4(b).

Clerks   Manual  -   United   States   District   Courts   §   8.12
(Administrative Office of the United States Courts, 1993); see also
United States v. Chagra, 735 F.2d 870, 873 & n.6 (5th Cir. 1984)
(discussing requirements of FED. R. CRIM. P. 55 and FED. R. APP. P.
4(b)).

                                 -12-
F.2d 1332, 1337-38 (9th Cir. 1981), the Ninth Circuit faced this

precise issue.   In that case, the district court held an attorney

in criminal contempt and entered the order on the civil docket, as

the underlying action had been consistently docketed as a civil

matter.   The attorney filed his notice of appeal 11 days after the

district court entered the judgment on the civil docket.    In the

court of appeals, the attorney “argue[d] that he filed timely

because the case was docketed consistently as a civil matter and

the order has never been entered on a criminal docket.”    Id.   The

court agreed, explaining that “[w]e agree with the government that

the contempt proceeding was criminal, but hold that Thoreen’s

appeal was timely because the clerk did not enter the judgment on

the criminal docket.    The ten-day period had not begun to run.”

Id. at 1338.

     Here, it is undisputed that the district court never entered

the contempt order on a criminal docket and, in fact, that no

criminal docket was ever opened for Defendant Smith’s criminal

contempt.   “In the face of specific provisions of FED. R. APP. P.

4(b), we are unable to agree with the [plaintiff’s] contention”

that the 10-day time period begins to run before the district court

enters the judgment on the criminal docket.   See Chagra, 735 F.2d

at 873; cf. United States v. Doyle, 854 F.2d 771, 772 (5th Cir.

1988) (holding that under Rule 4(a) 30-day period begins to run

from the date of entry of the judgment on the civil docket).


                               -13-
Consequently, for purposes of determining the timeliness of the

notice of appeal under Rule 4(b), the judgment was never “entered,”

and the 10-day time period has not run.      See Thoreen, 653 F.2d

1332, 1337-38 (9th Cir. 1981) (concluding that appeal was timely

because criminal contempt order was docketed on civil docket

instead of criminal docket); Chagra, 735 F.2d at 873 (measuring

timeliness from the date that judgment is entered on the criminal

docket).

     Thus, assuming arguendo that FED. R. APP. P. 4(b) applies to

the district court’s order of criminal contempt arising in the

underlying civil case, Defendant Smith’s notice of appeal was

nonetheless timely filed.    Alternatively, the notice of appeal was

timely under the 30-day time limit of FED. R. APP. P. 4(a) because

it was filed 28 days after entry of the judgment on the civil

docket.    See Thoreen, 653 F.2d at 1338 (“Alternatively, the appeal

is timely under Rule 4(a) because it was filed within 30 days of

the entry of the judgment on the civil docket.”).   In either case,

therefore, under the plain language of the rules, Defendant Smith’s

notice of appeal was timely, and we have jurisdiction to consider

the merits of the district court’s judgment holding her in criminal

contempt.8


     8
          Defendant Smith does not challenge the validity of the
criminal contempt judgment on the grounds that district court
entered the judgment on the civil, rather than the criminal,
docket. Consequently, we express no opinion on this question. Cf.
Gregory v. Depte, 896 F.2d 31, 35-36 (3d Cir. 1990) (vacating

                                 -14-
                                    B

     We review the district court’s contempt order for abuse of

discretion, and its factual findings under the clearly erroneous

standard.    See LeGrand, 43 F.3d at 168-69; Martin v. Trinity

Indus., Inc., 959 F.2d 45, 46-47 (5th Cir. 1992).       Defendant Smith

argues that the district court erred by finding her in criminal

contempt through the summary procedures of FED. R. CRIM. P. 42(a)

because her contempt was not committed in the actual presence of

the court. Plaintiff Smith concedes that the district court failed

to follow the procedures required by FED. R. CRIM. P. 42(b), but

argues that compliance with Rule 42(b) was unnecessary and that the

court correctly prosecuted this contempt summarily under Rule

42(a).   See United States v. Nunez, 801 F.2d 1260, 1263 (11th Cir.

1986) (noting that “Rule 42 outlines the two alternative procedures

to be used [for criminal contempt], depending on whether the

contemptuous behavior occurred in the presence of the court, or

not”). Thus, properly framed, the only remaining question for this

appeal is whether the district court erred in utilizing the summary

procedures   of   Rule   42(a)   instead   of   providing   the   extended


sanction and remanding to the district court “to take all
appropriate steps” because it was unclear whether sanction was
civil or criminal and order “ha[d] never been entered in the
criminal docket of the district court as required by FED. R. APP.
P. 4(b)”). Moreover, we note in passing that FED. R. APP. P. 4(b)
specifies that it is only “within the meaning of this subdivision
[i.e., for purposes of computing the timeliness of the notice of
appeal]” that a judgment must be entered on the criminal docket in
order to be “entered.”

                                   -15-
protections of Rule 42(b).9

     Rule 42(a) states as follows:

     (a) Summary Disposition.    A criminal contempt may be
     punished summarily if the judge certifies that the judge
     saw or heard the conduct constituting the contempt and
     that it was committed in the actual presence of the
     court. The order of contempt shall recite the facts and
     shall be signed by the judge and entered of record.

FED. R. CRIM. P. 42(a).   The district court, therefore, may utilize

the summary procedures of Rule 42(a) only when the judge certifies

that the judge “saw or heard the conduct constituting the contempt”

and that the defendant’s contempt was committed “in the actual

presence of the court.”    The power summarily to convict and punish

for contempt of court under Rule 42(a) “rests on the proposition

that a hearing to determine guilt of contempt is not necessary when

contumacious conduct occurs in the actual presence of a judge who

observes it, and when immediate action is required to preserve

order in the proceedings and appropriate respect for the tribunal.”

In re Chaplain, 621 F.2d 1272, 1275 (4th Cir. 1980).


     9
          FED. R. CRIM. P. 42(b) states in pertinent part:

     A criminal contempt except as provided in [Rule 42(a)]
     shall be prosecuted on notice. . . . The notice shall be
     given orally by the judge in open court in the presence
     of the defendant or, on application of the United States
     attorney or of an attorney appointed by the court for
     that purpose, by an order to show cause or an order of
     arrest. The defendant is entitled to a trial by jury in
     any case in which an act of Congress so provides. . . .
     If the contempt charged involves disrespect to or
     criticism of a judge, that judge is disqualified from
     presiding at the trial or hearing except with the
     defendant’s consent.

                                 -16-
      Here, the district court’s order demonstrates that Defendant

Smith was held in criminal contempt for failing to appear for her

deposition (scheduled for December 30, 1996) and for failing to

appear for her show cause hearing (scheduled for March 17, 1997),

thereby violating the district court’s December 17th and February

13th orders to do so.        Defendant Smith argues that because the

contempt was based on her absence from the deposition and hearing,

she could not be held in criminal contempt under the summary

procedures of FED. R. CRIM. P. 42(a).          We agree.

      In United States v. Onu, 730 F.2d 253, 255-56 (5th Cir. 1984),

we explained that “[t]he failure of a lawyer to appear for a trial

is   not   a   contempt   committed    in    the   presence   of   the   court.

Therefore it may be prosecuted only on notice as prescribed by FED.

R. CRIM. P. 42(b).” See also United States v. Nunez, 801 F.2d 1260,

1264 (11th Cir. 1986) (“[T]he majority of circuits which have

considered the issue have concluded that counsel’s tardiness or

absence cannot be characterized as contempt in the presence of the

court.”).      “[T]he contempt consists not in the absence from the

courtroom but in the reasons for the attorney’s presence elsewhere,

and the presence elsewhere was, of course, not in the actual

presence of the Court.”      In re Allis, 531 F.2d 1391, 1392 (9th Cir.

1976); see also Thyssen, Inc. v. S/S Chuen On, 693 F.2d 1171, 1175

(5th Cir. 1982) (“We adopt the Allis approach and hold that

ordinarily Rule 42(a) may not be used to punish an attorney for a


                                      -17-
contempt consisting of lateness or absence from a scheduled court

appearance.”); United States v. Delahanty, 488 F.2d 396, 398 (6th

Cir. 1973) (“We find that this matter should not have been dealt

with summarily. While the absence of Appellants was obvious to the

Court, the reasons for their absence were not.”).

     In   Thyssen,   we   noted   that   there   may   be   a   “hypothetical

exception” to the general rule that absence can be punished only

through Rule 42(b) when the reason for the absence or tardiness is

“known to the court.”       Thyssen, 693 F.2d at 1175.          We explained

that this could occur because “[c]ounsel may advise the court that

he will not appear for a certain reason, or he may advise the court

why he was absent.”       Id.; see also United States v. Baldwin, 770

F.2d 1550, 1555 (11th Cir. 1985) (upholding use of summary contempt

procedures where the attorney, prior to his absence, “told the

court why he would not be present on April 17, and that he was

refusing to obey a court order”).         While Onu calls into question

whether such a “hypothetical exception” exists, see Onu, 730 F.2d

256 n.5 (quoting same language from Thyssen and explaining that

“[d]espite this observation, we consider ourselves bound in this

case by the requirements of Rule 42(b)”), even if such an exception

does remain, it would not apply to the case at hand.

     Here, as in Thyssen, “[w]e need not now explore all the

potential contours of this hypothetical exception . . . for here,

so far as the record shows, the contempt order was rendered before


                                   -18-
any explanation of the absence or failure to contact the court was

made known to the court . . . and, indeed, in [the defendant’s]

absence.”   Thyssen, 693 F.2d at 1175; see also Baldwin, 770 F.2d at

1554 (“Because summary contempt allows the court to punish the

contemnor without benefit of numerous procedural protections, we

have determined that it is only appropriate in narrowly defined

circumstances.”); In re Oliver, 333 U.S. 257, 275-76, 68 S. Ct.

499, 508-09, 92 L. Ed. 682 (1948) (holding that if the judge must

depend upon others for knowledge of the essential elements, due

process requires notice and a fair hearing).

     Plaintiff Smith argues that “the court already knew the reason

for [Defendant Smith’s] non-appearance, i.e. that she was willfully

and intentionally attempting to obstruct the administration of

justice by preventing the Plaintiffs from performing meaningful

post-judgment discovery.” While it is certainly possibly that this

is the case))and there is no doubt that Plaintiff Smith believes

this to be true, neither the district court nor this Court may make

such a conclusion from the record.       Adopting plaintiff’s standard

for when the court can dispense with the heightened procedural

requirements of Rule 42(b) and punish summarily under Rule 42(a)

would eviscerate the requirement that the contempt occur in the

“actual presence of the court.”    FED. R. CRIM. P. 42(a); see also In

re Oliver, 333 U.S. at 275-76, 68 S. Ct. at 508-09 (“The narrow

exception to these due process requirements includes only charges


                                  -19-
of misconduct, in open court, in the presence of the judge, which

disturbs the court’s business, where all of the essential elements

of the misconduct are under the eye of the court, are actually

observed by the court, and where immediate punishment is essential

to prevent demoralization of the court’s authority . . . before the

public.”) (internal quotations omitted).

      In addition, the district court made no findings of fact as to

the reasons for Defendant Smith’s absences and Plaintiff Smith

presented no direct evidence to support her assertions (other than

Defendant Smith’s demonstrated absence).                       Although Plaintiff Smith

strongly objects to Defendant Smith’s version of events, Defendant

Smith did present some explanation for her absence (at least with

regards to the December 30, 1996 deposition).                           See supra at 4-5.

“‘If an explanation for tardiness is made which is inconsistent

with wilful disobedience, a hearing must be held’ . . . .”

Thyssen, 693 F.2d at 1175 n.6 (quoting In re Allis, 531 F.2d at

1392).      As    we       stated    in     Onu,    “[t]he     procedures    for    summary

disposition of contempt charges are reserved ‘for exceptional

circumstances,         .    .    .   such    as    acts      threatening    the    judge   or

disrupting a hearing or obstructing court proceedings.’”                           Onu, 730

F.2d at 255 (quoting Harris v. United States, 382 U.S. 162, 164, 86

S.   Ct.   352,    354,         15   L.   Ed.     2d   240    (1965))    (alterations      in

original).

      We, of course, recognize the district court’s need to preserve


                                                -20-
the integrity of its court.   The district court undoubtedly could

hold Defendant Smith in civil contempt for her failure to comply

with the court’s orders to appear, see LeGrand, 43 F.3d at 170, or

in criminal contempt following an adequate hearing pursuant to FED.

R. CRIM. P. 42(b).10   See, e.g., LeGrand, 43 F.3d at 169 (holding

that Rule 42(b) requires appointment of independent prosecutor);

American Airlines, Inc. v. Allied Pilots Ass’n, 968 F.2d 523, 531

(5th Cir. 1992) (explaining that under Rule 42(b) “the judge may

‘not prosecute the contempt proceeding and at the same time act as

Judge’”) (quoting In re Davidson, 908 F.2d 1249, 1251 (5th Cir.

1990)). If the district court intended to punish Defendant Smith’s

contempt immediately, the court could have issued a bench warrant

for her arrest and had the United States Marshals bring her before

the court for an appropriate hearing.

     Thus, although we do not in any respect condone Defendant

Smith‘s behavior, her failure to appear (i.e., her absence) is not

contempt “committed in the actual presence of the court” such that

she can be summarily held in criminal contempt.    Notwithstanding

our reversal of the criminal penalty, we do not foreclose further


    10
          Defendant Smith does not argue that FED. R. CRIM. P. 42(b)
prohibits Judge Smith from presiding at a contempt hearing on
remand.   Cf. FED. R. CRIM. P. 42(b) (“If the contempt charged
involves disrespect to or criticism of a judge, that judge is
disqualified from presiding at trial or hearing except with the
defendant’s consent.”); see also Thyssen, 693 F.2d at 1176 n.7
(raising the issue as to whether absence from a hearing constitutes
“disrespect to the judge” requiring disqualification under Rule
42(b)). Accordingly, we express no opinion on this question.

                                -21-
proceedings below, either civil or criminal, in respect to the

incidents in question or any future incidents should they arise.

See Thyssen, 693 F.2d at 1176; Nunez, 801 F.2d 1265.   The district

court has full authority to enforce its orders and preserve the

integrity of the court.11

                               IV

     In the consolidated appeal (No. 97-50575), the defendants ask

this Court to reverse the district court’s imposition of the

default judgment in the 1996 suit.   We review the court’s entry of

default judgment for an abuse of discretion.   See National Hockey

League v. Metropolitan Hockey Club, Inc., 427 U.S. 639, 642, 96 S.

Ct. 2778, 2780, 49 L. Ed. 2d 747 (1976); Batson v. Neal Spelce

Assocs., Inc., 805 F.2d 546, 548 (5th Cir. 1986).   With regards to

the 1996 suit, it is undisputed that the defendants failed to

appear for depositions scheduled for January 27 and 28, 1997, and

that they failed to comply with the district court’s order setting

depositions for February 20 and 21, 1997.       In addition, both

parties agree that these were the only discovery orders that the



    11
          Given our conclusion that the district court erred in not
conducting a hearing and taking evidence from Defendant Smith
pursuant to FED. R. CRIM. P. 42(b), we need not reach Defendant
Smith’s remaining argument that the district court’s summary
procedures violated FED. R. CRIM. P. 43(a). See FED. R. CRIM. P.
43(a)-(c) (setting forth requirement that the defendant be present
at every stage of trial unless presence has been waived); cf. SEC
v. Kimmes, 759 F. Supp. 430, 438 (N.D. Ill. 1991) (explaining that
the defendant “has the right under Rule 43(b) to be present at any
hearing relating to criminal contempt charges against him”).

                              -22-
defendants violated in the 1996 suit.         The defendants argue,

therefore, that the sanction imposed was excessive and that the

district court erred in considering their contumacious behavior in

the postjudgment proceedings in the 1994 suit to enter the default

judgment in this case.     We disagree.

     Under the plain language of Rule 37(b)(2), “[i]f a party . .

. fails to obey an order to provide or permit discovery,” the

district court has authority to “strik[e] out pleadings . . . or

render[] a judgment by default.”     FED. R. CIV. P. 37(b)(2)(C).   We

have explained that “dismissal is authorized only when the failure

to comply with the court’s order results from willfulness or bad

faith . . . .    [and] where the deterrent value of Rule 37 cannot be

substantially achieved by the use of less drastic sanctions.”

Bluitt v. Arco Chem. Co., 777 F.2d 188, 190 (5th Cir. 1985).        In

making its “bad faith” determination, the district court was

entitled to rely on its complete understanding of the parties’

motivations.     See FED. R. EVID. 404(b); Batson, 805 F.2d at 550-51;

Emerick v. Fenick Indus., Inc., 539 F.2d 1379, 1381 (5th Cir.

1976).   Defendants present no authority for the proposition that

the district court is prevented from considering a party’s actions

in a related case in making its bad faith determination under FED.

R. CIV. P. 37.     Moreover, the dilatory and obstructive conduct of

the defendants has been well-documented and the extreme sanction of

default judgment was warranted by their actions.      See Bonaventure


                                  -23-
v. Butler, 593 F.2d 625, 626 (5th Cir. 1979) (“Deliberate, repeated

refusals to comply with discovery orders have been held to justify

the use of this ultimate sanction.”); Emerick, 539 F.2d at 1381

(“[W]hen a defendant demonstrates flagrant bad faith and callous

disregard of its responsibilities, the district court’s choice of

the   extreme   sanction   is   not     an   abuse   of   discretion.”).

Accordingly, the district court did not abuse its discretion in

entering a default judgment in the 1996 suit.

                                  V

      For the foregoing reasons, the judgment of the district court

in appeal No. 97-50341 is hereby REVERSED and the cause is REMANDED

to the district court for further proceedings, if necessary,

consistent with this opinion.    The judgment of the district court

in appeal No. 97-50575 is hereby AFFIRMED.




DeMOSS, Circuit Judge, specially concurring:



      I concur fully in the language and reasoning set forth in Part

III of the foregoing opinion relating to appeal No. 97-50575.         As

to appeal No. 97-50341, I concur fully as to the language and


                                 -24-
reasoning in Part II.B., but as to Part II.A. relating to appellate

jurisdiction I concur only in the holding that this Court does have

appellate jurisdiction to review the merits of the district court’s

order which was issued on March 31, 1996, and entered on April 1,

1996, and which held defendant Jean Smith in criminal contempt

without any hearing or communication with any party.

       This order was entered on the civil docket of the 1994 civil

lawsuit and the conduct which the district court determined to be

contumacious was Jean Smith’s failure and refusal to comply with

terms of certain orders of the district court.                       Those orders had

been issued and entered on the docket of that same civil case.

Jean Smith filed her notice of appeal as to the contempt order

within thirty days after the entry of the contempt order, and that

notice of appeal was entered on the same civil docket of the same

civil case as the contempt order itself.                    As the majority opinion

points out, there is not now and never has been a criminal case

involving Jean Smith, and there never has been any criminal docket

upon       which    the    contempt     order       could     have    been     entered.

Consequently, it seems to me that the clear and plain language of

FED. R. APP. P. 4(a) determines the timeliness of the notice of

appeal filed in this case, and since that notice of appeal was

timely      filed    under       FED. R. APP. P.      4(a),     we    have    appellate

jurisdiction.

       I    do     not    join    in   the     majority’s     analysis       about   the

applicability of FED. R. APP. P. 4(b).              I do not agree that a notice

                                             -25-
of appeal filed in a civil case and entered on the civil docket of

that case can constitute a notice of appeal as to an order which

was never entered on a non-existent criminal docket.     I think we

are skating on terribly thin ice when we talk about "assuming

arguendo" the applicability of either FED. R. APP. P. 4(a) or 4(b).

Those two subparts of FED. R. APP. P. 4 are inherently and logically

mutually exclusive.   We just muddy the water for the trial bench

and bar when we "assume arguendo" or otherwise speculate as to

whether an order which is actually entered on a civil docket might

be deemed for certain purposes to be entered on a hypothetical

criminal docket and then assume that a notice of appeal which was

actually filed in a civil docket can be assumed to be timely as to

an order which has not yet been entered on a non-existent criminal

docket.

     I think we would do the bench and bar a better service by

holding that when a district judge issues a summary contempt order

as contemplated by FED. R. CRIM. P. 42(a), that order will be

appealable under either FED. R. APP. P. 4(a) or 4(b), but not both,

depending upon the docket on which the issuing judge directs that

order to be entered of record.     If the district judge does not

designate the record on which the order is to be entered, the clerk

of court should enter the summary contempt order on the docket of

the case then pending before the court in which the contumacious

conduct occurred and whether that pending case is civil or criminal


                               -26-
will determine which of FED. R. APP. P. 4(a) or FED. R. APP. P. 4(b)

is applicable.




                               -27-
