Filed: Jul. 25, 2013
Latest Update: Feb. 12, 2020
Summary: CLD-315 NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _ No. 13-2128 _ AMERICAN BOARD OF SURGERY, INC, v. KEITH A. LASKO; AMERICAN BOARD OF GENERAL SURGERY; ACADEMY OF SURGERY AND AMERICAN COUNSEL OF GENERAL SURGEONS; AMERICAN COUNCIL OF SURGICAL SPECIALISTS Keith A. Lasko, Appellant _ On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. Civil No. 2-10-cv-01857) District Judge: Honorable Mitchell S. Goldberg _ Submitted for Possibl
Summary: CLD-315 NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _ No. 13-2128 _ AMERICAN BOARD OF SURGERY, INC, v. KEITH A. LASKO; AMERICAN BOARD OF GENERAL SURGERY; ACADEMY OF SURGERY AND AMERICAN COUNSEL OF GENERAL SURGEONS; AMERICAN COUNCIL OF SURGICAL SPECIALISTS Keith A. Lasko, Appellant _ On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. Civil No. 2-10-cv-01857) District Judge: Honorable Mitchell S. Goldberg _ Submitted for Possible..
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CLD-315 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 13-2128
___________
AMERICAN BOARD OF SURGERY, INC,
v.
KEITH A. LASKO; AMERICAN BOARD OF GENERAL SURGERY;
ACADEMY OF SURGERY AND AMERICAN COUNSEL OF GENERAL
SURGEONS; AMERICAN COUNCIL OF SURGICAL SPECIALISTS
Keith A. Lasko,
Appellant
____________________________________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil No. 2-10-cv-01857)
District Judge: Honorable Mitchell S. Goldberg
____________________________________
Submitted for Possible Summary Action
Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
July 3, 2013
Before: RENDELL, JORDAN and SHWARTZ, Circuit Judges
(Opinion filed: July 25, 2013)
_________
OPINION
_________
PER CURIAM
Pro se defendant-appellant Keith Lasko challenges an order finding him in civil
contempt. Plaintiff-appellee American Board of Surgery, Inc. (ABS) challenges our
jurisdiction and requests that we dismiss this appeal. For the following reasons, we will
exercise jurisdiction and summarily affirm.
I.
ABS sued Lasko in 2010, alleging that he had engaged in unfair and deceptive
trade practices by creating corporate shells with names similar to other, respected medical
organizations, for the purpose of selling illegitimate certifications and memberships
under the names of those groups. ABS eventually moved for sanctions in the form of a
default judgment, as Lasko had, inter alia, flouted his discovery obligations—in one
instance, by failing to appear for a previously scheduled deposition at significant expense
to ABS.
Agreeing that sanctions were warranted, the District Court granted a default
judgment in favor of ABS, awarding damages and attorney fees. Also, pursuant to the
Lanham Act (15 U.S.C. § 1116(a)), the District Court enjoined Lasko from a) using ―any
and all of‖ an enumerated list of organization names; b) using three specified websites; c)
selling status-related privileges ―related to any purported medical organization including,
but not limited to‖ the organizations previously listed; and d) soliciting ―certificates, use
of letters, membership, or diplomat, fellow, or board of director status related to any
purported medical organization including, but not limited to‖ the organizations previously
listed. See Order 5–8, ECF No. 46 (emphasis added). The District Court also entered
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judgment in favor of ABS.
About a year and a half later, ABS filed a motion for civil contempt, alleging that
Lasko continued ―to engage in the exact same unlawful conduct.‖ Mem. of Law 1, ECF
No. 48. ABS attached to its motion a letter from an organization called the ―National
Academy of Medicine,‖ which was ―strikingly similar to [materials] previously used by
Lasko in connection with . . . the . . . entities identified in the Court’s Order.‖ Mem. of
Law. 4–5; see also Ex. C, ECF No. 48-1.
The District Court held a hearing on the contempt motion, at which Lasko
appeared pro se. ABS explained that while the injunction did not prohibit the use of the
name ―National Academy of Medicine,‖ it did prohibit, among other things, the ―use of
letters‖ in connection with ―any purported medical organization.‖ Tr. 8:24–9:5. Lasko
conceded that he had received the District Court’s final order, see Tr. 15:2–4, and did not
dispute that he created the National Academy of Medicine, see Tr. 16:10–16. He further
essentially admitted to sending the letters in question. Tr. 20:6–8. Throughout, Lasko
insisted that his conduct was covered under the religious protections of the First
Amendment. See, e.g., Tr. 41:19–24 (―THE COURT: So your position is that the first
amendment, freedom of religion . . . allows you to send these letters? Is that your
position? MR. LASKO: Yes, it is.‖).
Having taken testimony, the District Court asked ABS to clarify what it was
requesting from the Court. Tr. 47: 6–9. In addition to fees and other sanctions, ABS
asked for the Court to issue a more specific directive covering the National Academy of
Medicine and other organizations Lasko had begun to use since judgment was entered.
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See Tr. 47:18–48:3.
Ultimately, the District Court found Lasko in contempt and enjoined him from
―us[ing] . . . the names National Academy of Medicine, American Institute of Geriatrics,
National Academy of Dental Sciences, American Academy of Dental Sciences and
United States Academy of Dental Sciences for any purpose.‖ Order ¶ 3, ECF No. 54; see
also Tr. 51:6–9 (finding Lasko’s conduct to be ―clearly, definitively and one hundred
percent‖ prohibited by the original injunction). The District Court declined to levy
sanctions ―at this time,‖ but allowed ABS to present ―evidence of further violations of the
Court’s orders‖ within a six-month time frame, at which point a ―hearing‖ would be
convened ―to determine the appropriate penalty.‖ Order ¶ 4; see also Tr. 55:19–24
(announcing an intent to ―maintain[] jurisdiction‖ over the matter of sanctions). Lasko
filed a timely notice of appeal.1
II.
In its summary-action response, ABS suggests that we lack jurisdiction over this
appeal. We must determine our own jurisdiction before reaching the merits of the case.
See Elliott v. Archdiocese of N.Y., 682 F.3d 213, 219 (3d Cir. 2012) (citations omitted).
ABS argues that the contempt order is not final under 28 U.S.C. § 1291 because it
did not impose sanctions and ―kept the matter open for six months.‖ Thus, according to
ABS, ―the Order from which Mr. Lasko seeks to appeal is a non-appealable interlocutory
1
The notice of appeal is timely filed from the order granting ABS’s motion for civil contempt.
See Fed. R. App. P. 4(a)(1)(A). It is not timely filed in relation to the District Court’s original
default judgment order, despite the Court’s noncompliance with Fed. R. Civ. P. 58. Thus, we
lack jurisdiction over the default judgment and original permanent injunction.
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order, which this Court lacks jurisdiction to review.‖ Resp. 2.
A post-judgment civil contempt order is considered a final, immediately
appealable order under § 1291 once a finding of contempt is made and a sanction
imposed. See United States v. Gonzales, 531 F.3d 1198, 1202 (10th Cir. 2008)
(collecting cases); see also U.S. Steel Corp. v. Fraternal Ass’n of Steel Haulers,
601 F.2d
1269, 1273 (3d Cir. 1979). Having found Lasko in contempt, the District Court explicitly
retained jurisdiction to make a future determination of sanctions, but not necessarily a
redetermination of contempt, if Lasko persisted in violating the permanent injunction.
We are in accord with ABS that the District Court’s order lacks the ―elements of
operativeness and consequence necessary‖ to be a final decision under 28 U.S.C. § 1291,
precluding an exercise of jurisdiction under that section. Consumers Gas & Oil v.
Farmland Indus.,
84 F.3d 367, 370 (10th Cir. 1996) (internal quotation marks and citation
omitted).
However, certain nonfinal interlocutory orders, such as those modifying
injunctions, are appealable pursuant to 28 U.S.C. § 1292(a)(1). Also, ―one who is a party
may appeal from a civil contempt order in connection with some other appealable order.‖
United States v. Spectro Foods Corp., 544 F.2d 1175, 1179 (3d Cir. 1976). Moreover,
―[o]nce vested with section 1292(a)(1) jurisdiction, we may also review the district
court’s finding of civil contempt.‖ Int’l Bhd. of Teamsters, Warehousemen & Helpers of
Am., Local 249 v. W. Pa. Motor Carriers Ass’n.,
660 F.2d 76, 81 (3d Cir. 1981) (citing
Spectro
Foods, 544 F.2d at 1179). We must therefore determine whether the District
Court’s contempt order contains elements that would bring it within the ambit of
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§ 1292(a)(1).
―For an interlocutory order to be appealable under 28 U.S.C. § 1292(a)(1) . . . as
an order modifying an injunction, two requirements appear to be necessary and must be
satisfied: (i) the original or prior order must have been injunctive in character, and (ii)
that injunction must have been modified in some respect by the order from which the
appeal has been taken.‖ Hoots v. Pennsylvania, 587 F.2d 1340, 1348 (3d Cir. 1978). An
injunction is ―affirmatively defined as follows: [o]rders that are directed to a party,
enforceable by contempt, and designed to accord or protect some or all of the substantive
relief sought by a complaint in more than a temporary fashion.‖ Cohen v. Bd. of
Trustees,
867 F.2d 1455, 1465 n.9 (3d Cir. 1989) (en banc) (internal quotation marks,
alterations, and citation omitted). We construe appealability pursuant to § 1292
narrowly, see N.J. State Nurses Ass’n v. Treacy,
834 F.2d 67, 70–71 (3d Cir. 1987), and
must pay special attention to the distinction between a ―modification‖ of an injunction,
which is appealable, and the clarification of one, which is not. See Entegris, Inc. v. Pall
Corp.,
490 F.3d 1340, 1345 (Fed. Cir. 2007). In so doing, we must ―examine the
substance of the order rather than merely its language.‖ U.S. Fire Ins. Co. v.
Asbestospray, Inc.,
182 F.3d 201, 207 (3d Cir. 1999).
We conclude that the District Court’s contempt order qualified, in part, as a
―modification‖ of a permanent injunction, and is thus appealable under § 1292(a)(1). The
original order granted a Lanham Act injunction consisting of two categories of
restrictions: exhaustive, closed lists of names and websites that Lasko could not ―use‖;
and nonexhaustive, illustrative lists of ―purported medical organization[s]‖ on whose
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behalf Lasko was prohibited from soliciting and marketing. The contempt order added
five names to the previously exhaustive list of organizations whose monikers and
operations were forbidden to be used for any purpose. This changed the character of the
injunction. For example, while solicitation on behalf of the ―National Academy of
Dental Sciences‖ would fall under the terms of the original permanent injunction, merely
using the name would not. Under the contempt order’s modification, however, use itself
would be prohibited. By expanding the scope of the permanent injunction, the District
Court ―modified‖ it within the meaning of § 1292(a)(1) and our prior case law, rendering
the contempt order appealable.
Therefore, we will exercise jurisdiction over the contempt order pursuant to 28
U.S.C. § 1292(a)(1), and must therefore deny ABS’s submission to the extent that it was
a motion to dismiss.2 Both the modification of an injunctive decree and a finding of civil
contempt are reviewed for abuse of discretion. Lone Star Steakhouse & Saloon v.
Longhorn Steaks, 106 F.3d 355, 364 (11th Cir. 1997) (citation omitted); Harris v. City of
Phila.,
47 F.3d 1311, 1321 (3d Cir. 1995). Our jurisdiction does not otherwise extend to
―the merits of the underlying [permanent injunction or judgment],‖ which ―may not be
called into question in a post-judgment civil contempt proceeding.‖ Halderman v.
Pennhurst State Sch. & Hosp.,
673 F.2d 628, 637 (3d Cir. 1982) (en banc).
III.
We consider first the finding of civil contempt itself, which must be supported by
2
Because we can exercise jurisdiction under § 1292(a)(1), we need not reach whether the
collateral order doctrine also would permit this appeal. See Asbestospray, 182 F.3d at 207–08.
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clear and convincing evidence but will otherwise ―only be disturbed if there is an error of
law or a clearly erroneous finding of fact.‖ Harris, 47 F.3d at 1321. ―To prove civil
contempt the court must find that (1) a valid court order existed, (2) the defendant had
knowledge of the order, and (3) the defendant disobeyed the order.‖
Id. at 1326 (citing
Roe v. Operation Rescue,
919 F.2d 857, 871 (3d Cir. 1990)). ―[G]ood faith is not a
defense to civil contempt.‖ Robin Woods Inc. v. Woods,
28 F.3d 396, 399 (3d Cir.
1994). However, ambiguities in an order are construed in favor the charged party.
Id.
As discussed above, Lasko admitted knowledge of the permanent injunction and
had not otherwise challenged its validity. His arguments before the District Court (which
he repeats on appeal) amounted to reliance on the allegedly religious character of his
solicitations, which he maintained should carve out an exception for his conduct under
the Constitution. He failed to explain, however, how religious character was relevant.
To the contrary, ABS showed that, following his being enjoined by the District Court,
Lasko sent out a solicitation under the name ―National Academy of Medicine‖ that
mimicked precisely the conduct to which the ABS originally objected: questionable
representation as a ―medical organization‖ with a conspicuous element of remuneration
from the honorary titles and degrees allegedly bestowed. The July 21, 2012 letter
informed the recipient of his candidacy for an alleged ―award‖ that would elevate him to
the ―Scientific Advisory Board‖ of the ―National Academy of Medicine‖—for a fee, of
course. This communication falls squarely within the conduct prohibited by the
permanent injunction, and took place after the District Court enjoined Lasko. Hence, the
District Court did not err in finding Lasko to be in contempt.
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Next, we consider whether the modification of the injunction ―effectuate[d] or
thwart[ed] the purpose behind the permanent injunction.‖ Sierra Club v. U.S. Army
Corps of Eng’rs, 732 F.2d 253, 257 (2d Cir. 1984). Although modification of the
injunction was arguably unnecessary (as the District Court itself remarked during the
contempt hearing) to prevent any further misconduct, the District Court has broad
discretion in fashioning a remedy.
Woods, 28 F.3d at 399 (citation omitted). On the
present record, and especially given the character of the unchallenged, original permanent
injunction, we cannot say that the addition of five more shell companies amounted to an
abuse of discretion.
IV.
For the foregoing reasons, we find no substantial question to be presented by this
appeal, and will summarily affirm the District Court’s judgment. See Murray v. Bledsoe,
650 F.3d 246, 248 (3d Cir. 2011) (per curiam); see also 3d Cir. L.A.R. 27.4; 3d Cir.
I.O.P. 10.6. To the extent that Lasko’s submissions request independent relief, they are
denied.
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