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Morisseau v. DLA Piper


April 27, 2010


The opinion of the court was delivered by: Lewis A. Kaplan, District Judge


Plaintiff in this employment discrimination action suffered the entry of summary judgment dismissing the case, a judgment that was upheld on appeal by the Second Circuit.*fn1 Defendants obtained a judgment for costs and commenced supplementary proceedings to enforce that judgment.*fn2 In the course of those supplementary proceedings, they served plaintiff with an information subpoena.*fn3

Plaintiff ignored the information subpoena, so defendants moved for an order to compel compliance.*fn4 Plaintiff did not oppose the motion, which was granted on March 26, 2010. That order (the "March 26 Order") directed plaintiff to comply with the subpoena on or before April 5, 2010.*fn5 Defendants subsequently moved to hold plaintiff in contempt of court and for sanctions for plaintiff's failure to comply with the March 26 Order (the "Contempt Motion").*fn6 Plaintiff now moves to stay the Contempt Motion.*fn7

Plaintiff argues principally that consideration of the Contempt Motion would be inappropriate because she "has filed a notice of appeal of the . . . March 26th order" in consequence of which this Court no longer has jurisdiction.*fn8 She is mistaken.

To be sure, "the filing of a notice of appeal is an event of jurisdictional significance -- it confers jurisdiction on the court of appeals and divests the district court of its control over those aspects of the case involved in the appeal."*fn9 The objective of the rule, however, is to promote efficiency by preventing two courts from addressing the same matter at the same time.*fn10 And the rule has no bearing here for two independent reasons.

First, plaintiff is obliged by law to comply with the March 26 Order unless and until it is stayed or reversed,*fn11 neither of which has occurred. The Contempt Motion seeks to force her to comply. There is no inconsistency between this Court enforcing an order that remains in full force and effect notwithstanding plaintiff's appeal from that order. Accordingly, the filing of the notice of appeal did not oust this Court of jurisdiction to act on the Contempt Motion.

Second, the March 26 Order was not appealable in the first place because it was not a final judgment. While the concept of finality is broader in post-judgment than in pre-judgment proceedings,*fn12 the limits of that greater liberality are suggested by the principle that post-judgment proceedings are treated as a separate lawsuit for purposes of appellate jurisdiction.*fn13 Hence, an order in post-judgment enforcement proceedings is appealable only if that order winds up those proceedings.*fn14

The March 26 Order was merely a discovery order. Further proceedings to enforce the judgment, including the Contempt Motion, are pending or obviously in view. Accordingly, it was not appealable.*fn15 And the principle that the filing of a notice of appeal divests the district court of jurisdiction does not apply in the case of attempted appeals from plainly non-appealable orders.*fn16

Nor would plaintiff have fared any better if she had moved for a stay of the March 26 Order pending appeal. In evaluating such a request, a court considers "the likelihood of success on the merits, irreparable injury if a stay is denied, substantial injury to the party opposing a stay if one is issued, and the public interest."*fn17 Here, plaintiff has no likelihood of success on appeal because the order appealed from is not appealable, was not even opposed by plaintiff, and in any case was entirely appropriate. Plaintiff has shown no threat of irreparable injury if she were to respond to the information subpoena. Defendants surely have a significant interest in collecting their judgment. And no public interest cuts in favor of a stay pending appeal. Accordingly, even if the present motion were treated as one for a stay pending appeal, it would be entirely without merit.

In addition to the foregoing, the Court notes that plaintiff's motion was not accompanied by a memorandum of law as required by S.D.N.Y. CIV. R. 7.1. As plaintiff's failure to comply with Rule 7.1 in the past has been brought to her attention more than once, this failure plainly was willful. Accordingly, her present motion is denied on the independent and alternative ground of her willful non-compliance with the Rule, an outcome specifically referred to therein.

Plaintiff's motion to stay the Contempt Motion [DI 288] is denied.


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