USCA1 Opinion
November 15, 1994 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 94-1399
RICHARD POLIQUIN, ET AL.,
Plaintiffs, Appellees,
v.
GARDEN WAY INCORPORATED,
Defendant, Appellee,
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MAURICE A. LIBNER,
Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Gene Carter, U.S. District Judge]
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Before
Torruella, Chief Judge,
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Boudin, Circuit Judge,
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and Keeton,* District Judge.
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Maurice A. Libner and McTeague, Higbee, Libner, MacAdam,
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Case & Watson on brief for appellant.
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Ray E. Thompson, Jr., Glenn H. Robinson and Thompson & Bowie
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on brief for appellee, Garden Way Incorporated.
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*Of the District of Massachusetts, sitting by designation.
Per Curiam. Attorney Maurice A. Libner appeals the
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order of the United States District Court for the District of
Maine, dated April 7, 1994. The order grants the motions of
appellee, Garden Way, for compliance with a previously issued
protective order and for sanctions for violations of the
order. It also orders Libner to undertake specific steps to
comply with the previous order. We dismiss for lack of
appellate jurisdiction.
This court has jurisdiction only over "final decisions
of the district court." 28 U.S.C. 1291; Willhauck v.
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Halpin, 953 F.2d 689, 701 (1st Cir. 1991). A final decision
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is generally one that "leaves nothing for the court to do but
execute the judgment." Zayas-Green v. Casaine, 906 F.2d 18,
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21 (1st Cir. 1990) (quoting Van Cauwenberghe v. Biard, 486
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U.S. 517, 521 (1988)).
In the instant case, although the district court
determined that Libner had violated the protective order and
that sanctions were appropriate, sanctions were only
"conditionally granted, subject . . . to the Court's
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determination and imposition of an appropriate sanction on
Attorney Libner." Since the district court has yet to
determine what sanctions will be applied, the portion of the
order imposing sanctions upon Libner for violation of the
previously issued protective order is not a final order. See
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In re Tetracycline Cases, 927 F.2d 411, 413 (8th Cir. 1991)
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(finding that attorney was in contempt for violation of
limited appearance and protective orders and that sanctions
were appropriate was not appealable final order since amount
of sanctions yet to be determined).
Nor is the portion of the order imposing obligations on
Libner yet appealable. Discovery orders are not in general
appealable final orders. In re Insurers Syndicate for Joint
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Underwriting, etc., 864 F.2d 208, 210 (1st Cir. 1988); In re
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Recticel Foam Corp., 859 F.2d 1000, 1002 (1st Cir. 1988).
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Libner claims, however, that the order in this case operates
as an injunction and hence is appealable pursuant to 28
U.S.C. 1292(a)(1). However, even if we were to assume that
the April 7 order operates as an injunction, the order is not
yet appealable since Libner has failed to meet his burden of
showing the order "might cause [him] irreparable consequences
if not immediately reviewed." Carson v. American Brands
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Inc., 450 U.S. 79, 84 (1981); see also In re Unanue-Casal,
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998 F.2d 28, 32 (1st Cir. 1993) (citing cases).
This appeal is hence premature and must be dismissed for
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lack of appellate jurisdiction.
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