Opinions of the United
1995 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-23-1995

Martin v Brown
Precedential or Non-Precedential:

Docket 94-3248




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_1995

Recommended Citation
"Martin v Brown" (1995). 1995 Decisions. Paper 232.
http://digitalcommons.law.villanova.edu/thirdcircuit_1995/232


This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 1995 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
                              UNITED STATES COURT OF APPEALS
                                  FOR THE THIRD CIRCUIT

                                            ___________

                                            No. 94-3248
                                            ___________

                                         LEON M. MARTIN


                                                v.

                    HAROLD ED BROWN, an individual; KYLE ENERGY, INC.,
                 a Pennsylvania Corporation; KYLE ENERGY AND KYLE ENERGY
                          CORPORATION, a Pennsylvania Corporation


                                   REBECCA E. BENDER*
                          (*Pursuant to Rule 12(a), F.R.A.P.),
                                       Appellant

                                            ___________

                       Appeal from the United States District Court
                         for the Western District of Pennsylvania
                            (D.C. Civil Action No. 86-cv-01239)

                                            ___________

                                Argued:       October 27, 1994


               PRESENT:   STAPLETON, HUTCHINSON and ROSENN, Circuit Judges


                                   (Filed    August 23, 1995)

                                         ____________


Rebecca E. Bender, Esquire                            (Argued)
Rebecca E. Bender & Associates, P.A.
Minnesota Law Center
514 Nicollet Mall
Suite 570
Minneapolis, MN 55402-1021
               Attorneys for Appellant



                               1
    ____________




2
                                           ____________

                                     OPINION OF THE COURT
                                         ____________


HUTCHINSON, Circuit Judge.



                                      I.    Introduction
           Appellant, Rebecca E. Bender ("Bender"), an attorney who represen

defendants, Harold E. Brown, Kyle Energy, Inc. and Kyle Energy and Kyle Ene
             0
Corporation, in this action, appeals orders of the United States District C

Western District of Pennsylvania sanctioning her for refusing to comply with

order and for refiling two motions the court reserved for trial after denyi

prejudice.0 The discovery sanctions required Bender and Brown to pay $500 ea

costs plaintiff Leon M. Martin ("Martin") incurred in connection with the di

request.   Bender's and Brown's liability for these costs was joint and sever

sanction for refiling the two motions required Bender individually to pay an

$500.    In an accompanying memorandum, the district court stated that it was

sanctions under Rule 11, Rule 37, 28 U.S.C.A. § 1927 (West 1994) and the co

power.
           Brown shortly thereafter filed for bankruptcy in the Middle Distri

Bankruptcy Court.   Martin's case against Brown was stayed under the automati

Bankruptcy Code § 362, 11 U.S.C.A. § 362 (West Supp. 1995), and the district

an order dismissing Martin's case against Brown without prejudice.   Bender d

represent Brown in the bankruptcy, which is still pending.

0
  Bender represented all three defendants. For the sake of simplicity, howev
refer solely to Brown.
0
  The orders Bender appeals are dated April 20 and April 25, 1994. They impo
sanctions. The April 20 order, however, did not include the docket numbers
limine motions. See Martin v. Brown, No. 86-1239, slip op. at 1 n.1 (W.D.
1994).


                                 3
          Under the circumstances of this case, we hold that we have appella

jurisdiction over Bender's appeal despite the fact that the district court d

underlying action "without prejudice."    Appellant's Appendix ("App.") at 664

hold that the manner in which the district court judge imposed these sanctio

Bender of the essentials of procedural due process, viz, fair notice and an

be heard. Because of our disposition of this appeal on procedural grounds, i

unnecessary for us to decide the propriety of the sanctions imposed on Bend

therefore vacate the district court's orders imposing sanctions on Bender an

case to it for further proceedings consistent with this opinion.



                            II.   Statement of the Case and Facts

          In November 1992, Brown retained Bender as defense counsel in an

which Martin claimed Brown violated federal securities laws, the Racketeerin

and Corrupt Organizations Act ("RICO"),0 and engaged in state common law fra

of contract by selling or offering to sell interests in numerous gas well p

           On December 30, 1992, the district court issued an order disposing

Martin's discovery motions.   The order included a provision granting Martin

inspect certain real property Brown owned.   This part stated, "[t]he defenda

arrangements with plaintiff for inspection [of the real property] on or befo
1993."   App. at 106.   The real estate covered included Brown's personal resi

laundromat he owned.    Bender refused to permit inspection of the real proper

believed it was irrelevant to any liability Brown might have to Martin or an

might owe after the RICO claim had been dismissed.

           On January 22, 1993, Martin's counsel sent a telex to Bender infor

Martin's continuing insistence on inspecting these properties.      Bender respo

0
 The district court dismissed the RICO count on October 23, 1990, before Ben
association with the case.


                                  4
day by denying the request for inspection and reiterating her contention tha

of the real property had no relevance to any of Martin's surviving claims.

February 1993, Bender sent a letter to Martin's attorney asking him to clar

the inspection of these properties.

          In March 1993, Bender filed ten in limine motions. They were unre

discovery dispute.   She also filed a motion to dismiss the federal security

that the interests in gas wells Martin claimed Brown fraudulently offered fo

not securities as defined by federal law. Alternatively, Bender moved to ce

issue for immediate appeal believing an interlocutory determination could ex

dispose of Martin's only remaining federal claim. See 28 U.S.C.A. § 1292(b)

This was the third time Brown had raised the lack-of-a-security question.0

in limine motions Bender had filed was yet a fourth attempt to relitigate t

issue.   In another of Bender's ten in limine motions, she also raised for t

the statute of limitations as a defense.0

          On March 31, 1993, with the dispute over inspection of Brown's re

unresolved, Martin filed a Rule 37 motion to sanction Brown for her refusal

the December 30, 1992 order.    In April 1993, Bender filed a response and Ma

filed a reply.   In an order entered April 30, 1993, the district court decid

Martin's Rule 37 motion for sanctions under advisement, "subject to the par
attorneys' compliance with discovery directives set forth" in the memorandum

its order.   App. at 593.   The memorandum criticized both parties for their c

discovery, warned them that sanctions would be imposed for future noncomplia

letter or spirit of the discovery rules and cautioned them about the use of




0
  The issue was first decided in October 1990 and then again in December 1992
without prejudice.
0
  The issue was also first decided in October 1990.


                                 5
verbiage," "superfluous language" and the filing of unwarranted motions and

long papers.   App. at 587.

          Also on April 30, 1993, the district court denied Bender's motion

the security issue and refused to certify it for interlocutory appeal.   Con

also rejected Bender's in limine motion concerning the security issue, reaso

was "in part a disguised motion to relitigate the 'securities' issue," App.

once more denied the statute of limitations issue as repetitive, but again

prejudice to Brown's right to raise it at trial.   The court warned, however:

instructed not to make any further attempts to relitigate this issue prior t

merits." App. at 589.

          After the April 30, 1993 order, counsel on each side seemed to hav

effort to resolve the outstanding discovery issues.   Sometime around July 1

original counsel, Thomas E. Rodgers ("Rodgers"), was hospitalized. Thereaft

represented by a lawyer named David H. Cullis ("Cullis").   Bender contends t

unfamiliarity with her discussions with Rodgers revived the inspection probl

          In January 1994, the district court dismissed without prejudice Be

remaining in limine motions and Martin's motion for sanctions.   With the res

the dispute concerning inspection of Brown's real estate, the district court

directed the parties to negotiate outstanding matters and to resubmit formal
or before April 1, 1994, for judicial resolution of any pre-trial matters t

The district court instructed counsel to append to any such motions a certif

they had tried, in good faith, to resolve their dispute.

0
 Bender argues that a number of problems in this case resulted from the entr
counsel. The record, however, suggests that Cullis may have had some previo
relationship to the case or to prior counsel. The record shows the followin
letterhead indicates that he was a sole practitioner. Cullis practiced in a
Rodgers and Cullis, P.C. Rodgers and Cullis, P.C.'s letterhead lists two par
Patricia A. Rodgers and Cullis. Rodgers and Rodgers & Cullis, P.C. have th
phone and facsimile number listed on their respective letterheads. Furtherm
responded to correspondence sent to Rodgers before his illness forced him ou


                               6
            On March 16, 1994, Bender sent a letter directly to the judge pres

case.   In it, she enclosed all ten of the in limine motions she had presente

March 1993, including for the fifth time the securities issue and, also, the

limitations defense that the district court, in its April 30, 1993 order, e

directed her not to resubmit until trial. Martin also refiled several of his

including the Rule 37 motion for sanctions for Brown's failure to afford in

real estate.

            On April 8, 1994, the district court entered another order.    It ag

the parties to meet in an effort to resolve Martin's outstanding discovery r

Brown's ten in limine motions.   The court also noted that Bender had failed

the clerk the motions forwarded with her March 16, 1994 letter.   The order s

April 15, 1994 hearing for unresolved matters.    In its April 8, 1994 order,

court echoed its warning to the parties and their counsel that sanctions cou

for conduct that "is in violation of the Rules of Civil Procedure and/or the

Professional Conduct."    App. at 647.

            Bender did not appear personally at the April 15 hearing.     She had

her in limine motions with the clerk of the district court, but Brown's loca

present and tried to argue their merits.    The district court questioned him

about Bender's persistent refiling of motions denied without prejudice pendi
well as her refusal to permit inspection of all the real estate included in

December 30, 1992 order.    It ordered Bender, on or before April 20, 1994, t

clerk the motions that she previously mailed to the judge with her March 16

before it would consider them.    On April 20, 1994, Bender again filed all te

motions.0   On that day the district court entered its initial April 20, 1994

0
 Bender claims that she only filed these ten in limine motions because the d
ordered her to do so. Thus, she contends that any sanctions imposed upon h
We need not decide this issue because of our resolution of this case on proc
grounds. We note, however, that when the district court directed Bender to


                                 7
imposing sanctions on Bender and Brown and, on April 25, revised the April

adding the docket numbers of the in limine motions.

          Bender appeals from those portions of both orders sanctioning her

and flagrant" disregard of the court's orders by "resurrecting and advocatin

motions in limine regarding 'lack of a security' and the 'statute of limita

defense'"; App. at 654-55, and "for refusal to permit meaningful inspection

property in compliance with [the] court's orders . . . ."   

persistence in raising questions the district court had decided, or indicate

defer to trial, the court ordered Bender to pay $500 personally.   For prohib

from inspecting certain properties, the court ordered Bender and Brown each

and, jointly and severally, any costs Martin had incurred in attempting to

inspection.



                                    III.   Jurisdiction

          The district court had subject matter jurisdiction over the underl

between Martin and Brown under 15 U.S.C.A. § 78a et seq. (West Supp. 1995) a

§§ 1341 and 1343 (West 1993).   Bender contends that the district court's ord

April 20 and 25, 1994 are "final decisions" over which we have appellate ju

under 28 U.S.C.A. § 1291 (West 1993). Although no appellee is present to re
contention,0 we have a threshold obligation to consider our appellate jurisd

e.g., Hoots v. Commonwealth of Pa., 

, 978 (3d Cir. 1981).


clerk the ten in limine motions she had enclosed in her March 16, 1994 lette
judge, it only ordered Bender to comply with its rules of procedure.
0
  Appeals of attorney sanctions often present this procedural problem because
appellee. See Snow Machines, Inc. v. Hedco, Inc., 

, 725 (3d Ci
Thus, "[w]e must play not only our accustomed and proper role of neutral adj
also (albeit temporarily) the role of adversary to the appellant in order to
assertions made on appeal." 

In limited situations, we have appo
achieve the benefits of the adversarial system. See Eash v. Riggins Trucki
F.2d 557, 559 n.1 (3d Cir. 1985). We believe that action is unnecessary in


                                8
                                      A.   Strict Finality

           Our appellate jurisdiction is generally limited to the review of f

of the district courts.     United States v. Bertoli, 

, 1010 (3d

also 28 U.S.C.A. § 1291.0    Section 1291 states:   "The courts of appeals . .

jurisdiction of appeals from all final decisions of the district courts of t

States . . . except where a direct review may be had in the Supreme Court."

§ 1291.   "A final decision is one which disposes of the whole subject, gives

relief that was contemplated, provides with reasonable completeness, for giv

the judgment and leaves nothing to be done in the cause save to superintend,

ministerially, the execution of the decree."     Isidor Paiewonsky Associates,

Properties, Inc., 

, 150 (3d Cir. 1993) (internal brackets, quota

and citations omitted).

           The district court's order dismissing the litigation underlying Be

sanctions states:
          IT IS ORDERED the action is dismissed without prejudice and the Cl
          shall mark the case closed. The Court retains complete jurisdicti
          to vacate this Order and to reopen the action upon cause shown th
          the stay has been lifted or further litigation is necessary.



App. at 664.   In Borelli v. City of Reading, 

, 951 (3d Cir. 197

curiam), we held that "[g]enerally, an order which dismisses a complaint wit

is neither final nor appealable because the deficiency may be corrected by t

without affecting the cause of action."     In that case, and in subsequent cas

recognized that exceptions exist, e.g., when the party "cannot amend or dec

intention to stand on his complaint."      

  The dispositive inquiry

district court's order finally resolved the case. See, e.g., Presbytery of N



0
 Although section 1292 authorizes appeals of certain specified non-final ord
applicable here. 28 U.S.C.A. § 1292 (West 1993 & Supp. 1994).


                                  9
Orthodox Presbyterian Church v. Florio, 

, 1461 & n.6 (3d Cir. 19

N.A.A.C.P. v. Harrison, N.J., 

, 1416-17 (3d Cir. 1990).

             In Trent v. Dial Medical of Florida, Inc., 

(3d Cir. 19

addressed the effect on our appellate jurisdiction of a district court's sta

dismissal pursuant to Colorado River abstention.0    We stated that "[e]ven di

without prejudice have been held to be final and appealable if they end the

the District Court was concerned, although . . . such dismissals may not co

orders until the party seeking relief renounces any intention to reinstate l

(internal quotation, citation and brackets omitted).     In relianc

Cone Memorial Hosp. v. Mercury Constr. Corp., 

(1983), we held th

was whether the purpose and effect of the stay order was to surrender jurisd

federal suit to a state court.     

(quoting Moses H. Cone, 460 U.S.

             Bender argues similarly that the district court's dismissal effec

this case.     Her client, Brown, is in bankruptcy and she no longer represents

Martin may assert his claims against Brown in the bankruptcy court, he is pr

recommencing them in the district court while the bankruptcy is pending.     M

be foreclosed from subsequently asserting his claims unless the bankruptcy c

Brown a discharge.     Accepting Bender's argument, however, would require us t

the invocation of the bankruptcy code's automatic stay would always result
disposition triggering appellate review.     That result would be inconsistent

rationale behind the automatic stay provision.     See, e.g., Raymark Industri

F.2d 1125, 1130 (3d Cir. 1992) (automatic stay provides "a breathing spell

which stops all collection efforts") (internal quote omitted). Furthermore,

U.S. Capital Corp., 

, 786 (3d Cir. 1993), we held that a dismis

prejudice based on the defendants' bankruptcy filing was not final because


0
    See Colorado River Water Conservation Dist. v. United States, 

                                  10
were "free to seek relief from the automatic stay and pursue their claims ag

defendants," and because the case had "the potential to lead to piecemeal ap

Although this case is dormant, if not dead, with regard to Martin's claims

our analysis under section 1291's strict finality rule requires us to look a

case, including Bender's conduct in allegedly not complying with the distric

orders.   Thus, we are unable to say the district court's dismissal without p

finally determined the entire case and, therefore, we conclude that our juri

be based on the collateral order doctrine.



                              B.   The Collateral Order Doctrine

          The collateral order doctrine, as first annunciated in Cohen v. B

Indus. Loan Corp., 

(1949), relaxes the strict standard of final

permitting us to entertain appeals from certain orders that would not otherw

appealable final decisions.    See Johnson v. Jones, No. 94-455, 

June 12, 1995) ("[I]n [Cohen], this Court held that certain so-called colla

amount to 'final decisions,' immediately appealable under . . . 28 U.S.C. §

though the district court may have entered those orders before (perhaps lon

case has ended."); 

("The flexibility given by Cohe

permits appeal of some district court orders that do not terminate the entir
even a discrete part of it.").     The collateral order doctrine recognizes th

achieved by the final decision rule can sometimes be outweighed by other con

Johnson, 

44, at *3 ("sometimes interlocutory appellate review ha

countervailing benefits").    The case law on the collateral order doctrine is

its requirements clear.   It permits appellate review of orders that:   (1) fi

a disputed question; (2) raise an important issue distinct from the merits o
and (3) are effectively unreviewable on appeal from a final judgment.    See,

Equipment Corp. v. Desktop Direct, Inc., 

, 1995-96 (1994); P


                                   11
Properties, Inc. v. Colonial Sav. Bank, S.L.A., 

, 54 (3d Cir. 19

Properties, we described these three requirements as:       (1) the "conclusivene

the "importance/separateness" prong; and (3) the "unreviewablity" prong.          P

.    Failure to meet any one prong precludes a fi

appellate jurisdiction.   

.



                                 1.    The "Conclusiveness" Prong

          "The requirement that the district court's order 'conclusively det

question means that appellate review is likely needed to avoid that harm."

WL 347244, at *4.   An order "is conclusive when no further consideration is

by the district court."   

(citations omitted).      The

conclusiveness prong excludes from review "'any decision which is tentative

incomplete.'"   Swint v. Chambers County Com'n, 

, 1208 (1995)

, and citing Coopers & Lybrand v. Livesay, 

          In Eavenson, Auchmuty & Greenwald v. Holtzman, 

, 537

we addressed the applicability of the collateral order doctrine to appeals o

sanctions.   We concluded that there could be "no dispute" that the conclusiv

was satisfied because "[t]he sanctions order challenged . . . finally and c

determines the sanctions issue."       

.   Similarly, in
Distributors, Inc. v. Maico-Fahrzeugfabrik, 

(3d Cir. 1981), alt

ultimately found the Rule 37 sanctions there involved were not immediately

noted that the sanction order conclusively determined the disputed question

and thus satisfied the first element.       Eastern 

; see

Lawrence R. Kemm, Note, Interlocutory Appeals of Attorney Sanctions: In Sear

Standard, 

. Rev. 919, 923 (1991) ("[T]here has been little discussi
disagreement that a sanction order represents a 'conclusive determination.'"

cases).


                                  12
          We have no trouble concluding on the record before us that the dis

orders sanctioning Bender were its final word on her liability for professio

misconduct.   There is no indication that the court intended to revisit the i

of the sanctions were ordered to be paid by April 29, 1994. Although Bender

has been conclusively determined, there remains a question with regard to th

Bender's liability on the sanction imposed for the expenses caused by her fa

comply with the court's discovery order because that sanction has not yet b

The court order stated that "defendant Brown and attorney Bender, jointly an

are DIRECTED TO PAY to the Clerk of Court the reasonable travel expenses and

hourly fees incurred by plaintiffs for the services of Mr. John Welsch, MAI

he was unable to inspect defendants' properties, within 14 days of the filin

plaintiffs of a verified statement itemizing said expenses and fees."      App.

Martin never filed a verified statement with the district court.      Thus, the

sanction remains unquantified.

          Generally, an order is not final until it is reduced to a determin

Napier v. Thirty or More Unidentified Federal Agents, Employees or Officers

1080, 1089 (3d Cir. 1988); see also Apex Fountain Sales, Inc. v. Kleinfeld,

934-35 (3d Cir. 1994); United States v. Sleight, 

, 1015 (3d Cir

Becton Dickinson & Co. v. District 65, United Auto., Aerospace and Agric. Im
Workers of Am., AFL-CIO, 

, 61-62 (3d Cir. 1986).   The need for qu

arises from "concerns with duplicative expenditure of judicial time and reso

.   It is not without exceptions, however.     See, e.

Seidman, 

(3d Cir. 1994).   One exception applies to orders in whi

when determined, is insignificant in the overall context of the dispute and

unlikely to be the subject of a later appeal. Thus, we recently stated in
          [W]e have continued to recognize that an order is final even if it
          does not reduce the damages to a sum certain if "the order
          sufficiently disposes of the factual and legal issues and [if] any


                                 13
          unresolved issues are sufficiently 'ministerial' that there would
          no likelihood of further appeal."

(quoting Polychrome Int'l Corp. v. Krigger, 

(3d Cir. 1993)) (second alteration in original).

          In this case, the sole discovery expense Martin incurred was the c

retaining a single real estate appraiser to inspect the property.   The deter

this amount is likely to be straightforward and mechanical, and it is also u

result in a later appeal.   Furthermore, Bender insists her concern is not th

her professional reputation.   In Simmerman v. Corino, 

, 64 (3d Cir

recognized that the impact of attorney sanctions goes beyond the dollar amou

"as a symbolic statement about the quality and integrity of an attorney's wo

statement which may have tangible effect upon the attorney's career."   In th

context of this case, the dollar amounts of the sanctions imposed and the po

liability for the unquantified sanction are insignificant in comparison to

effect.   Furthermore, there is nothing in the record to explain Martin's del

the statement and it now appears highly unlikely that it will ever be filed.

record leaves much to be desired, the district court's order limited Martin

whatever amount is due from, or paid by Martin to Welsch for the time Welsch

on which he showed up to inspect Brown's real estate and was not able to do

at 249-255.   Because the only thing missing is an invoice from the appraiser

limited lost time, we believe quantification is essentially a ministerial or

"mathematical" calculation that can be based on Welsch's bill for this time.

case is distinguishable from those in which we have refused to entertain ap

unquantified orders holding attorneys liable for reasonable attorney's fees

course of a particular dispute.    See In re Jeannette Corp., 

, 45




                                  14
1987).   We conclude that the district court's orders conclusively determine

question.



                            2.   The "Importance/Separateness" Prong

            Turning to whether the matter is separate from the merits of the a

been said that this prong "means that review now is less likely to force the

court to consider approximately the same (or a very similar) matter more tha

also seems less likely to delay trial court proceedings (for, if the matter

collateral, those proceedings might continue while the appeal is pending)."

WL 347244, at *4.    This requirement of separateness "derives from the princi

should not be piecemeal review of steps toward final judgment in which they

Praxis 

(internal quotation marks omitted).     At

sanctions, especially discovery sanctions, are, however, often too intertwin

merits of the underlying litigation to permit immediate review under the col

doctrine.    See 

n.6; Eastern 

            Thus, in Eastern Maico, we stated that "sanctions for violation of

orders are usually considered interlocutory and not immediately appealable."

(citations omitted).     In applying the separateness p

concluded, "[i]n order to address the question whether the documents request
plaintiffs were truly relevant, we would have to consider the charges agains

defendants and reach some conclusion as to the relative importance of the di

material."   

held that "the discovery activity at issue here i

completely collateral to the underlying action."     

of Eastern Maico, however, differ significantly

before us in Bender's case.      In Eastern Maico, the party challenging the sa
agreed that the sanction order could not "be adequately understood without e

the entire discovery history in the case," which "would inevitably enmesh us


                                   15
of relevance which could not be decided without reference to the underlying

at 951.   In contrast, in Bender's case we can review the district court's al

to comply with the mandates of procedural due process.    This review will not

in the merits of the underlying litigation.

          Here, as in Eavenson, there is little danger that our review will

Brown is in bankruptcy, Martin's case against him has been dismissed and Ben

represent Brown in the bankruptcy.   To the best of our knowledge, the underl

litigation continues in the bankruptcy court.     Thus, Bender's sanction is "c

and separate from the merits not only because the principal case cannot be a

outcome of the sanction appeal, but also because the sanction appeal cannot

the outcome of the principal case." Lawrence R. 

, 

. Rev.

Thus, we conclude that the sanctions imposed against Bender are separate fro

underlying merits within the meaning of Cohen.0

          This prong, however, contains two subparts.    The claim on appeal m

that is "too important to be denied review."    

.   There

also consider whether the issue Bender poses is important.    This question is

merged in discussion with the third prong of the Cohen doctrine because the

subsequent review affects the importance of the question.     See Digital Equi

S. Ct. at 2001 (applying the importance requirement as part of the third pr
that other cases have properly applied it to the second prong, citing 

; Lauro Lines S.R.L. v. Chasser, 

, 498 (1989)).

importance is reviewed as part of the second or the third prong, however, it

cannot be answered without a judgment about the value of the interests that

through rigorous application of a final judgment requirement." 

0
 Our finding of separateness is dependent on the facts presently before us.
Eavenson, "[w]e do not now adopt a rule that would allow immediate appellat
sanction order imposed upon counsel, whether counsel has withdrawn from the

(emphasis in original).


                                16
imposition of attorney sanctions may impose significant burdens on the repu

career opportunities of the sanctioned attorney.     We believe such potential

compliance with the constitutional protections of due process, coupled with

later opportunity for effective appellate review, is sufficient to meet the

requirement of the collateral order doctrine.     See Digital Equipment, 114 S

("Where statutory and constitutional rights are concerned, irretrievable los

be trivial . . . .") (internal quotations and brackets omitted).



                               3.    The "Unreviewability" Prong

            On the unreviewability prong of the Cohen requirements, we conside

district court's orders will be "effectively unreviewable" if we do not revi

.    To meet this requirement, "an order must be such

postponed will, in effect, be review denied."     

mark

omitted). For purposes of the collateral order doctrine, unreviewability "me

failure to review immediately may well cause significant harm."     Johnson, 19

at *4 (citing 15A C. Wright, A. Miller, & E. Cooper, Federal Practice and P

§ 3911, pp. 334-35 (1992)).

            In Eastern Maico, we concluded that we lacked appellate jurisdicti

collateral doctrine, in part, because the attorney was unable to satisfy th
requirement.    We held that the orders would "be fully reviewable on appeal f

judgment:    the parties to the order will still be before the court, and reta

interest in challenging the order as they have today."     Eastern Maico, 658

As Bender is no longer involved in the underlying case, Eastern Maico is no

In this regard, Bender is in a situation more similar to the attorney sancti

Eavenson.    There, we stated:
            Because appellant [] is no longer connected with the merits of the
            case, he has an immediate interest in challenging the sanction whi
            is not shared by the parties to the suit or by counsel to a party.


                                    17


-39.   Bender, like the attorney in Eavenson and ag

attorney in Eastern Maico, is no longer a participant in the proceedings.

Bender is unlikely to have an adequate and effective opportunity for review

consider her appeal of the sanctions imposed on her now.

            In sum, we hold that the sanction orders against Bender "conclusiv

the disputed question," "resolve an important issue completely separate from

the action," and are "effectively unreviewable on appeal from a final judgm
Gulfstream Aerospace Corp. v. Mayacamas Corp., 

, 276 (1988) (ci

omitted).   Thus, we have appellate jurisdiction under the collateral order d

flexible concept of finality.   Accordingly, we will now turn to the merits o

appeal.



                                   IV.   Standard of Review

            We review orders imposing sanctions for abuse of discretion.   See

NASCO, Inc., 

, 55 (1991); Arab African Int'l Bank v. Epstein, 10

(3d Cir. 1993).    When the procedure the district court uses in imposing san

due process issues of fair notice and the right to be heard, however, our re

plenary.    See Fabulous Assoc., Inc. v. Pennsylvania Public Utility Commissi

780, 783 (3d Cir. 1990) (constitutional issues subject to plenary review);

Inc. v. Hedco, Inc., 

, 725 (3d Cir. 1988); see also Gillette Fo

Bayernwald-Fruchteverwertung, GmbH, 

, 812 (3d Cir. 1992) (apply

review to legal issues that arise in a sanctions context).



                                         V.   Discussion

                                                A.



                                 18
           Bender contends that the district court denied her notice and an o

be heard when it sanctioned her for failure to comply with discovery.    The D

Clause of the Fifth Amendment requires a federal court to provide notice and

opportunity to be heard before sanctions are imposed on a litigant or attorn

Riggins Trucking Inc., 

, 570-71 (3d Cir. 1985) (in banc); Lando

F.2d 450, 454 (3d Cir. 1991) (per curiam).

           No precise all encompassing rule captures the requirements of proc

process.   The process that is due varies with the nature of particular dispu

evaluation of its requirements should balance fairly the competing interest

sanctioned person against the judicial system's need for efficient judicial

administration.    See 

("The precise form of procedural

required will, of course, vary with the circumstances of the case."); Eash,

570 ("The form which those procedural protections must take is determined by

of all the circumstances and an accommodation of competing interests.").    Ne

the fundamental requirements of due process--notice and an opportunity to r

afforded before any sanction is imposed.    See 

(citati

Jones v. Pittsburgh National Corp., 

, 1357 (3d Cir. 1990) (cit

F.2d at 570-71).    With regard to sanctions, particularized notice of the gro

sanction under consideration is generally required.    See, e.g., Corino, 27

.0



0
  Because we conclude that the district court failed to afford Bender procedu
process, we believe it is unnecessary and inappropriate for us to decide on
her contention that she engaged in no sanctionable misconduct. We believe t
court must first address these matters on remand, after Bender is afforded t
safeguards required by the Due Process Clause.
0
  Recently, we upheld the imposition of sanctions under the bankruptcy court'
sanction power without requiring this type of "particularized notice." Fell
& Braverman, P.C. v. Charter Technologies, Inc., No. 94-3461, 

June 22, 1995). In that case, however, the sanctioned attorney was plainly
he was facing sanctions for conduct involving subjective bad faith.


                                 19
             Bender's due process argument has two prongs.   She argues that the

court failed to give her sufficient prior notice of the possibility of sanc

failed to relate specifically her conduct to the various theories it used to

sanctions.     She contends that the court required her to defend her actions u

weapon the judicial arsenal has available for imposing sanctions on an attor

             Bender's argument that the district court wholly failed to provide

somewhat overstated.     In its memorandum, the district court stated that the

imposed on Bender for failure to afford discovery were imposed under Rule 3

motion requesting Rule 37 sanctions for noncompliance with the court's disc

obviously referred to Rule 37. It was served on Bender and she filed a respo

district court also provided her sufficient opportunity to be heard.     It hel

before deciding the issues Martin's Rule 37 motion raised.     Bender's electio

local counsel to state her position because of her own prior commitment is i

Although Martin's motion only requested dismissal or preclusion of evidence,

fair notice and an adequate opportunity to respond to Martin's request for R

sanctions before their imposition.     See 

.

             Bender's argument, however, that the district court's order impos

sanctions was overly broad, is more troubling. Rule 37 cannot justify the $5


0
    In this respect, the district court said:

             1.   Plaintiff's Revised Motion for Sanctions Pursuant to Rule 37
             (Document No. 434) is GRANTED IN PART AND DENIED IN PART, as foll
             . . . c) plaintiff's request to sanction defendants and/or their
             counsel for refusal to permit meaningful inspection of real proper
             in compliance with this court's orders of December 30, 1992 and
             January 25, 1993, is GRANTED, and defendant Harold E. Brown and
             attorney Rebecca E. Bender are DIRECTED TO PAY to the Clerk of [th
             Court the sum of $500.00 EACH for their willful refusal to comply
             the court's orders; [and they are both jointly and severally liabl
             for the resulting costs to the plaintiff].

App. at 651-53.

                                  20
the district court imposed on Bender for her refusal to allow discovery.0   A

contempt, the only monetary sanctions Rule 37 authorizes are "reasonable ex

resulting from the failure to comply with discovery.   Fed. R. Civ. P. 37 (19

Newton v. A.C.&S., Inc., 

, 1126 (3d Cir. 1990).0   The district

to explain the basis for the sanction amount.   Although the imposition of th

discovery costs are allowable under Rule 37, imposition of the unauthorized

the court's justification for these sanctions ambiguous and thus requires us

elsewhere in the court's opinion to determine the grounds for both these di

sanctions and the refiling sanction. The only other reference to the grounds

is made in the district court's introduction.   There, the district court sta

elaboration that it imposed sanctions under Rule 11, Rule 37, 28 U.S.C.A. §

inherent powers.0

0
  Although Rule 37 authorizes both punitive and compensatory damages, it requ
amount of any monetary damages to be specifically related to expenses incurr
violations. See Roadway Express, Inc. v. Piper, 

, 763-64 (1980)
Ford Motor Co., 

, 747 (D.C. Cir. 1980) ("The principal purpose
is punitive, not compensatory."). But see Media Duplication Services, Inc.
Software, 

, 1241-1242 (1st Cir. 1991). The sanctions in Newto
Inc., 

(3d Cir. 1990), and Media Duplication were imposed under
not Rule 37(b)(2). The latter is directed to a party or its agents. Rule 16
expressly to "a party or [its] attorney."
0
  Rule 37(b)(2) states in part:

          the court shall require the party failing to obey the order or the
          attorney advising that party or both to pay the reasonable expense
          including attorney's fees, caused by the failure, unless the court
          finds that the failure was substantially justified or that other
          circumstances make an award of expenses unjust.

Fed. R. Civ. P. 37 (1995).
0
  We reproduce the full text of the relevant portion of April 20 and April 25

          Penalties will now be imposed for the continued shenanigans of th
          parties and their counsel, who have been repeatedly warned that th
          court would take such action under the authority of the Federal Ru
          of Civil Procedure, especially F.R.C.P. Rules 11 and 37, 28 U.S.C
          § 1927, and its inherent power to correct abuses of the judicial
          process.



                                21
          This scatter-gun approach is unfair to Bender.    It also makes our

deciding whether the district court acted consistently with a sound exercise

impossible on the record now before us.   

; accord Fo

Associates, Inc., 

, 141-42 (1st Cir. 1991); United States v. Int

of Teamsters, 

, 1346 (2d Cir. 1991).   In 

, we addre

problem and held:
               Because the district court did not differentiate between Rul
          and [section 1927] in imposing sanctions, we are not in a positio
          even to know whether the district court applied the correct standa
          insofar as Rule 11 is concerned. In consequence, the entire order
          imposing sanctions on appellant must be 

.   The district court's failure to relate its general ground

conduct (and her conduct alone) requires us to vacate its order sanctioning

remand this case for further proceedings in which the district court will ha

opportunity to elaborate on Bender's conduct, as well as her state of mind,

the legal basis for each sanction imposed against Bender.



                                             B.

          Though we will not decide any of the other issues Bender raises, w

be appropriate to comment briefly on some issues that are likely to come up

Rule 11 authorizes imposition of sanctions upon the signer of any pleading,

other paper that was presented for an improper purpose, e.g., "to harass or

unnecessary delay or needless increase in the cost of litigation."   See Land

at 452.   Rule 11 sanctions are based on "'an objective standard of reasonab

the circumstances.'"   

n.3 (quoting Mary Ann Pensiero, Inc. v. Lin

90, 94 (3d Cir. 1988)).   Bad faith is not required.   Id.; Jones, 899 F.2d a

Rule 11(c)(1) provides that sanctions can be initiated either by motion or

App. at 651.


                                22
initiative.   When acting on its own initiative, however, the district court

enter an order describing the specific conduct that it believes will warrant

direct the person it seeks to sanction to show cause why particular sanctio

be imposed.   See Rule 11(c)(1)(B); see also Rule 11(c)(3) ("When imposing s

court shall describe the conduct determined to constitute a violation of thi

explain the basis for the sanction imposed.").   If the district court wishe

Bender under Rule 11, it should issue and serve on her an order to show cau

considering any response she may file, explain its rationale and describe th

conduct that supports the particular Rule 11 sanction imposed.0

          Likewise, if the court desires to base any sanction on section 19

refer to that statute in the order to show cause and relate specific conduct

violation.    We note, however, that section 1927, unlike Rule 11, requires

Gaiardo v. Ethyl Corp., 

, 484 (3d Cir. 1987). In addition, secti

Rule 37, authorizes only the imposition of costs and expenses that result fr

particular misconduct the court sanctions.   

.   Section

limits these costs and expenses to those that could be taxed to a losing par

U.S.C.A. § 1920 (West 1994). 

11 also has specific notice requirements echoing the Due Process Claus
Amendment. See 

("The party sought to be sanctioned is
particularized notice including, at a minimum, 1) the fact that Rule 11 san
under consideration, 2) the reasons why sanctions are under consideration, a
of sanctions under consideration.").
0
  Section 1927 states:

               Any attorney or other person admitted to conduct cases in an
          court of the United States or any Territory thereof who so multipl
          the proceedings in any case unreasonably and vexatiously may be
          required by the court to satisfy personally the excess costs,
          expenses, and attorneys' fees reasonably incurred because of such
          conduct.

28 U.S.C.A. § 1927.

                                23
          Usually, the inherent power that a district court retains to sanct

also requires bad faith.   Gillette 

("[A] court may a

attorney's fees when a party has acted in bad faith, vexatiously, wantonly,

oppressive reasons.") (internal quotations omitted); 

prerequisite for the exercise of the district court's inherent power to sanc

finding of bad faith conduct."); but see Republic of Philippines v. Westingh

Corp., 

, 74 n.11 (3d Cir. 1994) (sanctions imposed under the court

authority do not always require a showing of bad faith).0    We have previousl

care in the use of inherent powers to impose sanctions.     See Fellheimer, Eic

Braverman, 

, at *8 ("'Because of their very potency,' . . . th

courts must be careful to exercise their inherent powers 'with restraint an

discretion.'") (quoting 

); Republic of Philippines,

Generally, a court's inherent power should be reserved for those cases in wh

conduct of a party or an attorney is egregious and no other basis for sancti

See Gillette 

.

          In summary, if the district court on remand wishes to pursue sanct

Bender, it should do more than state generally the various grounds authorizi

should relate each sanction to some aspect of Bender's conduct and explain h

conduct comes within the authority it relies on to impose it.      Any sanction
against Bender should also be imposed solely because of her own improper con

considering the conduct of the parties or any other attorney.



                                       VI.   Conclusion



0
 Bender correctly points out that the district court never used the term bad
order and suggests that there is no evidence that could support a finding of
The district court on remand will be in a position to determine, in the fir
whether Bender acted in bad faith.


                                24
          For the reasons stated above, we will vacate the district court's

April 20 and April 25, 1994 insofar as they impose sanctions on Bender for

discovery and for refiling motions addressing issues already decided.   The c

remanded to the district court for further proceedings consistent with this

Bender shall bear her own costs.




LEON M. MARTIN v. HAROLD ED BROWN, ET AL.
No. 94-3248


STAPLETON, Circuit Judge, dissenting:
          I respectfully dissent because I believe we are without appellate

          The court correctly concludes that the district court's order hav

of staying this case pending resolution of the bankruptcy proceeding is not

It also correctly concludes that an attorney who no longer represents a part

some circumstances appeal a sanction order under the collateral order doctri

I believe it errs in concluding that the order here appealed from meets the

"conclusiveness" prong of the collateral order doctrine.



                               25
          The first of the two provisions of the order imposing sanctions on

provides as follows:
                [P]laintiff's request to sanction defendants and/or their co
          for refusal to permit meaningful inspection of real property in
          compliance with this court's orders of December 30, 1992 and Janua
          25, 1993, is GRANTED, and defendant Harold E. Brown and attorney
          Rebecca E. Bender are DIRECTED TO PAY to the Clerk of Court the su
          $500.00 EACH for their willful refusal to comply with the court's
          orders; additionally defendant Brown and attorney Bender, jointly
          severally, are DIRECTED TO PAY to the Clerk of Court the reasonab
          travel expenses and standard hourly fees incurred by plaintiffs fo
          the services of Mr. John Welsch, MAI, to the extent he was unable
          inspect defendants' properties, within 14 days of the filing by
          plaintiffs of a verified statement itemizing said expenses and fe
          . . .

App. at 659-60.

          The court acknowledges that "the amount of this sanction remains u

and that, generally, "an order is not final until it is reduced to a determi

(Slip op. at 17).    It relies, however, on a venerable exception to the gene

as the Forgay-Conrad doctrine, see Forgay v. Conrad, 47 U.S. (6 How.) 201 (1

is applicable to cases in which the order appealed from leaves nothing to do

"ministerial act."    The court cites Apex Fountain Sales, Inc. v. Kleinfeld,

(3d Cir. 1994) as authority for its conclusion that this is such a case.

          In Apex, this court held that an order establishing liability and

accounting, but not quantifying the amount of money to be paid the plaintif
defendant, was not a final order.    We made clear that the word "ministerial

context of the Forgay-Conrad doctrine refers to "mechanical" acts, like mat

calculations, about which there can be no dispute.    Only when the act remai

is "ministerial" in this sense can an appellate court proceed with assurance

0
   In the Forgay case itself, the order appealed from directed the immediate
physical property to the plaintiff, as well as an accounting. The losing pa
regarded as facing immediate irreparable injury and this fact has been regar
numerous courts as essential to the result reached. See 9 James W. Moore et
Federal Practice ¶110.11, at 89-97 (2d ed. 1995).



                                 2
will "be no likelihood of [a] further appeal."    

(quotat

We stressed the importance of the considerations behind insisting on quanti

damages, quoting from the Supreme Court's decision in Van Cauwenberghe v. B

517 (1988):
          "Permitting piecemeal appeals would undermine the independence of
          district judge, as well as the special role that individual plays
          our judicial system. In addition, the [finality] rule is in
          accordance with the sensible policy of avoiding the obstruction to
          just claims that would come from permitting the harassment and cos
          a succession of separate appeals from the various rulings to whic
          litigation may give rise, from its initiation to entry of judgment
          Van Cauwenberghe v. Biard, 

, 521-22 n.3, 

          1949 n. 3, 

(1988) (quotations omitted); see Catli
          United States, 

, 233-34, 

, 633-34, 89 L.E
          911 (1945)("The foundation of this policy is not in merely technic
          conceptions of 'finality.' It is one against piecemeal litigation

(alteration in original).

          Most important for present purposes, we noted in Apex that this u

the importance of finality is "reflected in our cases holding that a distric

awarding 'reasonable' attorneys fees is not appealable until the fees are qu

order to prevent two appeals -- one on whether attorneys fees should be awar

second on the amount of the award."   

view, a determination of "r

travel expenses" and reasonable0 fees for the expert services of a professio

extent he was unable to inspect defendants' properties" holds no less potent
disagreement and a second appeal than does the typical determination of the

reasonable litigation expense and reasonable counsel fees following an unqua

of such expenses and fees.   Accordingly, I do not see how we can hear this a

hereafter also hearing appeals from unquantified counsel fee awards.



0
   While the district court's order refers to "standard hourly fees" rather
"reasonable fees," the former is obviously intended as an indicia of the lat
not suggest to me that the potential for disagreement is less than that inhe
lodestar determination.


                                3
            My concern about the court's ruling on jurisdiction is based only

considerations we stressed in Apex. Piecemeal appellate review is an ineffi

federal judiciary can ill afford.    But today's ruling gives rise to a distin

grave, concern.   An order is either final or it is not final and if it is f

but a limited period in which courts of appeals have jurisdiction to review

makes it crucial that a party and its counsel be able to know with certainty

is final.   In the absence of such certainty, counsel must either flood us w

appeals or run the risk that appeal rights will be unintentionally foregone.

ministerial exception is extended beyond the realm of mathematic calculation

will necessarily be generated in an area where certainty is essential to the

operation of the appellate justice system.

            I would insist that the amount of the sanctions assessed against M

established before she is permitted to seek appellate review of those sancti

nothing to be lost by so requiring and a great deal to be gained.




0
   See 9 Moore et al., supra note 1, ¶ 110.11, at 98-99.
0
   The court considers it significant that Martin has apparently not yet app
the sanction quantified and may not do so hereafter. Ms. Bender, however, i
apply to the court for an order requiring quantification or the deletion of
the order relating to Martin's expenses.
     Nor am I persuaded by the court's suggestion that the district court's
appealable because it constitutes "a symbiotic statement about the quality a
of" Ms. Bender's work. We rejected such a suggestion in Eastern Maico Distr
v. Maico-Fahrzeugfabrik, G.m.b.H., 

, 951 (3d Cir. 1981).



                                 4