Lyn-Lea Travel Corp v. American Airlines, e

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT _______________

m 00-10123 Summary Calendar _______________

LYN-LEA TRAVEL CORPORATION, DOING BUSINESS AS FIRST CLASS INTERNATIONAL TRAVEL MANAGEMENT,

Plaintiff-Appellant,

STEPHEN GARDNER,

Appellant,

VERSUS

AMERICAN AIRLINES, INC.,

Defendant-Appellee,

SABRE GROUP, INC.,

Intervenor-Defendant-Appellee.

_________________________

Appeal from the United States District Court for the Northern District of Texas (3:96-CV-2068-BC(R)) _________________________ November 27, 2000

Before SMITH, BENAVIDES, and Although Lyn-Lea attempts to characterize DENNIS, Circuit Judges. Gardner as a third party so that we might find the district court’s order final as applied to PER CURIAM:* him, Gardner is functionally a party to the ac- tion. First, he is active counsel for Lyn-Lea Because this is an appeal only from a con- and thus has a continuing duty to advance the tempt order, we dismiss the appeal for want of interests of his client. See Appeal of Licht & appellate jurisdiction. Generally, we may en- Semonoff, 796 F.2d 564, 569-70 (1st Cir. tertain appeals only from final decisions. See 1986). The congruence of interests between 28 U.S.C. § 1291. “[A] decision is not final, Gardner and Lyn-Lea weighs against treating ordinarily, unless it ‘ends the litigation on the attorneys as nonparties for purposes of merits and leaves nothing for the court to do interlocutory appeals. See Cunningham v. but execute the judgment.’” Cunningham v. Hamilton County, 527 U.S. 198, 207 (1999). Hamilton County, Ohio, 527 U.S. 192, 204 In addition, Gardner and Lyn-Lea are jointly (1999) (quoting Catlin v. United States, 324 and severally liable for the sanctions, a factor U.S. 229, 233 (1945)). that weighs against allowing immediate appeal.3 Thus, Gardner is not a third party in A civil contempt order is not an appealable any meaningful sense, and his sanctions are not final order for purposes of § 1291.1 Although appealable as a final order. we have recognized some exceptions to this rule, none applies here.2 Even though Lyn-Lea and Gardner do not * appeal from a final order, we may still hear the Pursuant to 5TH CIR. R. 47.5, the court has appeal if it falls within the collateral order determined that this opinion should not be doctrine. See Cohen v. Beneficial Indus. Loan published and is not precedent except under the Corp., 337 U.S. 541 (1949). It does not. limited circumstances set forth in 5TH CIR. R. 47.5.4. A decision may be immediately appealable 1 See, e.g., Quilling v. Funding Resource if it (1) conclusively determines the disputed Group, 227 F.3d 231, 234 (5th Cir. 2000); Police question; (2) resolves an important question Ass’n v. City of New Orleans, 100 F.3d 1159, completely separate from the merits of the ac- 1166 (5th Cir. 1996); In re Grand Jury Subpoena, tion; and (3) is effectively unreviewable on 926 F.2d 1423, 1429 (5th Cir. 1991); Drummond appeal from a final judgment. Coopers & Ly- County v. District 20, United Mine Workers, 598 F.2d 381, 383 (5th Cir. 1979). 2 (...continued) 2 See, e.g., Lamar Financial Corp. v. Adams, third party and where the underlying criminal 918 F.2d 564, (5th Cir. 1990) (finding that a civil prosecution had ended). contempt order was final and appealable because it 3 functioned as a criminal contempt order); Petroleos See Cleveland Hair Clinic, Inc. v. Puig, 104 Mexicanos v. Crawford Enters., Inc., 826 F.2d F.3d 123, 126 (7th Cir. 1997) (holding that an 392, 398 (5th Cir. 1987) (finding a civil contempt attorney for a party in ongoing litigation could not order imposing monetary sanctions final and immediately appeal an award of sanctions for appealable where the order related to actions of a which he and his client were jointly and severally (continued...) liable).

brand v. Livesay, 437 U.S. 463, 468-69 (1978); In re Grand Jury Subpoena, 190 F.3d 375, 381 (5th Cir. 1999). If the order in question fails any of these criteria, it is not appealable. Gulfstream Aerospace Corp. v. Mayacamas Corp., 485 U.S. 271, 276 (1988).

We need not address whether the order meets the first two criteria, because it plainly fails the third. Appellants run no risk of losing their ability to appeal the contempt order, because the district court entered final judg- ment on September 29, 2000.4

The appeal is DISMISSED for want of jurisdiction.

4 See Cleveland Hair, 104 F.3d at 126 (“A disgruntled attorney will be able to present the sanctions issue on appeal from the final decisions, even if the sanctioned litigant chooses not to, because an appeal at the end of the case brings up all interlocutory orders.”).