2012 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

7-25-2012

Idona Wallace v. Kmart Corp

Precedential or Non-Precedential: Precedential

Docket No. 11-1541

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1

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 11-1541

_____________

IDONA WALLACE 

v.

KMART CORPORATION

(D.V.I. No. 1-02-cv-00107)

ERROL STANLEY; NIGEL CHARLES; MELVIN NEAL; 

JOSEPH SONNY; WRANDA DAVIS; RACHEL DAVIS

v.

ST. CROIX BASIC SERVICES, INC; HOVENSA LLC; 

AMERADA HESS CORP.; BASIC INDUSTRIES INC.

(D.V.I. No. 1-03-CV-00055)
2

FORREST THOMAS

v.

CENTENNIAL COMMUNICATIONS; CENTENNIAL 

PUERTO RICO WIRELESS; CENTENNIAL USVI 

OPERATION; CENTENNIAL CARIBBEAN HOLDING 

CORP.

(D.V.I. No. 1-03-cv-00163)

MARK VITALIS

v.

SUN CONSTRUCTORS INC.; HOVENSA LLC; RICHARD 

LANGNER; EXCEL GROUP INC.

(D.V.I. No. 1-05-cv-00101)

PATRICE CANTON

v.

KMART CORPORATION

(D.V.I. No. 1-05-cv-00143)
3

GLENFORD RAGGUETTE

v.

PREMIER WINES AND SPIRITS LTD.

(D.V.I. No. 1-06-cv-00173)

TERRANCE ALEXIS

v.

HOVENSA LLC; HESS CORPORATION f/k/a AMERADE 

HESS CORPORATION

(D.V.I. No. 1-07-cv-00091)

LEE ROHN, ESQ.*,

 Appellant

*(Pursuant to Fed. R. App. P. 12(a))

______________

APPEAL FROM THE DISTRICT COURT 

FOR THE VIRGIN ISLANDS

District Judge: Honorable Timothy J. Savage

______________

Argued December 6, 2011

______________
4

Before: FISHER, GREENAWAY, JR. and ROTH, Circuit 

Judges.

(Opinion Filed: July 25, 2012 )

______________

OPINION

______________

Lee J. Rohn, Esquire (argued)

Lee J. Rohn & Associates 

1101 King Street 

Christiansted, VI 00820

Counsel for Appellant Lee Rohn

David J. Cattie, Esquire (argued)

Charles E. Engeman, Esquire

Ogletree, Deakins, Nash, Smoak & Stewart 

1336 Beltjen Road 

Suite 201 

St. Thomas, VI 00802

Counsel for Appellees Sun Constructors, Richard 

Langner and Excel Group, Inc.

GREENAWAY, JR., Circuit Judge.

Attorney Lee Rohn appeals a decision of the District 

Court holding her in contempt, pursuant to Fed. R. Civ. P. 

45(e), for failing to comply with a subpoena. The subpoena 

was issued by Sun Constructors (“Sun”) as part of discovery 

in the motion Ms. Rohn filed, seeking the recusal of the 

District Judge in seven cases in which Ms. Rohn appeared as 
5

counsel. The cases, all of which were in different procedural 

postures, were consolidated for purposes of consideration of 

the recusal motion. For the reasons set forth below, we 

conclude that we have jurisdiction to hear this appeal, and 

will remand for further proceedings consistent with this 

opinion.

I. Facts and Procedural History

In the recusal motion, Ms. Rohn alleged that the 

District Judge‟s “personal animosity” towards her was 

creating an appearance of bias and prejudice against her 

clients. (App. 104-05.) In support of the recusal motion, Ms. 

Rohn submitted a declaration, relating her summary of the 

facts that formed the basis for her allegation of personal 

animosity. In response to the recusal motion and attached 

declaration, Sun, who was a defendant in one of the seven 

consolidated cases, sought discovery.1 Specifically, Sun

subpoenaed Ms. Rohn.

2

 The subpoena sought production of 

 

1 While defendants in some of the other six cases opposed the 

recusal motion, as well as engaged in discovery regarding that 

motion, only Sun‟s subpoena and the actions associated with 

it are under review at this time. 

2

The subpoena was issued by Sun. However, the subsequent 

litigation surrounding the subpoena involved Sun, Richard 

“Doc” Langner and Excel Group, Inc. (collectively, 

“Defendants”).
6

documents as well as scheduling her deposition.3 

Ms. Rohn filed a mandamus petition in our Court

seeking to have us act on various discovery matters, including 

vacating the order requiring her to appear for her deposition. 

The petition was denied, but our Court directed that all 

discovery be overseen by a Magistrate Judge, and not the 

District Judge about whom the recusal motion was focused. 

According to Defendants, Ms. Rohn did not comply 

with the subpoena. She appeared for her deposition, but did 

not produce any documents. As a result, Defendants moved 

for contempt, pursuant to Fed. R. Civ. P. 45(e).4 The 

Magistrate Judge granted the motion, held Ms. Rohn in 

contempt, and awarded attorney‟s fees to Defendants as the 

sanction for her contempt. Citing 28 U.S.C. § 636(e)(7), Ms. 

 

3

 Also attached to the motion for recusal were statements 

from a variety of other people, including Ms. Rohn‟s clients 

and other individuals not involved in any litigation before the 

District Judge. Defendants sought discovery regarding these 

persons as well, but those requests and their resolution are not 

before us. 

4 Rule 45(e) provides that the court issuing the subpoena 

“may hold in contempt a person who, having been served, 

fails without adequate excuse to obey the subpoena. A 

nonparty‟s failure to obey must be excused if the subpoena 

purports to require the nonparty to attend or produce at a 

place outside the limits of Rule 45(c)(3)(A)(ii).”
7

Rohn appealed to the District Judge, who affirmed the finding 

of contempt without holding a hearing. 

Ms. Rohn now argues on appeal that (1) the Magistrate 

Judge lacked the statutory authority to enter the contempt 

order and (2) the District Judge failed to conduct a de novo 

hearing, as required by 28 U.S.C. § 636(e). 

II. Jurisdiction

In our order granting Ms. Rohn‟s emergency motion 

seeking to stay the payment of the attorney‟s fees, we directed

the parties to address the issue of this Court‟s jurisdiction, 

specifically focusing on the “„congruence of interests‟ 

distinctions outlined in Cunningham v. Hamilton County, 

Ohio, 527 U.S. 198, 199 and 211 (1999), and whether 

Appellant should be treated as a party for purposes of this 

appeal.”

5

 

In Cunningham, the petitioner had served as counsel 

for the plaintiff in a civil rights action in federal court. 

 

5

The order also cited U.S. Catholic Conference v. Abortion 

Rights Mobilization, Inc., 487 U.S. 72 (1988). There, the 

Supreme Court held that nonparty witnesses could challenge 

a court‟s lack of subject matter jurisdiction when defending 

against a civil contempt action. Reasoning that “[t]he right of 

a nonparty to appeal an adjudication of contempt cannot be 

questioned,” the Court extrapolated that this right 

encompassed the ability to challenge the court‟s jurisdiction. 

Id. at 76-77.
8

Petitioner flouted several discovery orders entered by the 

magistrate judge overseeing discovery, resulting in the 

magistrate judge imposing sanctions against counsel, pursuant 

to Fed. R. Civ. P. 37. The magistrate judge who imposed the 

discovery sanctions against counsel “took care to specify, 

however, that he had not held a contempt hearing and that 

petitioner was never found to be in contempt of court.” 

Cunningham, 527 U.S. at 201. 

In justifying why immediate appeal should be 

available to her, the petitioner “posit[ed] that contempt orders 

imposed on witnesses who disobey discovery orders are 

immediately appealable and argue[d] that the sanctions order 

in this case should be treated no differently.” Id. at 206. The 

Supreme Court acknowledged that “[t]he effective 

congruence of interests between clients and attorneys 

counsels against treating attorneys like other nonparties for 

purposes of appeal.” Id. at 207. That is, “[u]nlike witnesses, 

whose interests may differ substantially from the parties‟

[interests], attorneys assume an ethical obligation to serve 

their clients‟ interests.” Id. at 206. The Supreme Court, in 

criticizing the petitioner‟s position, noted that her “argument 

also overlook[ed] the significant differences between a 

finding of contempt and a Rule 37(a) sanctions order.” Id. at 

207. That is, “„[c]ivil contempt is designed to force the 

contemnor to comply with an order of the court,‟ [while] a 

Rule 37(a) sanctions order lacks any prospective effect and is 

not designed to compel compliance.” Id. (quoting Willy v. 

Coastal Corp., 503 U.S. 131, 139 (1992)). “[W]e have 

repeatedly held that a witness subject to a discovery order, but 

not held in contempt, generally may not appeal the order.” 

Id. at 204 n.4.
9

The Third Circuit has also commented on the 

difference between orders entered pursuant to Rule 37(a) and 

contempt orders,6as well as the impact of the “congruence of 

interests” between an attorney and client. E. Maico Distrib., 

Inc. v. Maico-Fahrzeugfabrik, G.m.b.H., 658 F.2d 944, 949-

50 (3d Cir. 1981). In E. Maico, we examined several orders, 

one of which imposed sanctions against defendant‟s counsel 

in response to a discovery dispute. This Court concluded that 

the congruence of interests between the attorney and client 

was “so great that [counsel‟s] status as a non-party is 

arguable.” Id. at 950. That is, counsel‟s “interest in 

counseling the motion was nearly identical with [the client‟s] 

interest in making it and his interest can be vindicated 

following judgment as well as [the client‟s] can.” Id. at 950-

51. 

 

6

 We have distinguished between sanctions orders entered 

pursuant to Fed. R. Civ. P. 37(a) and other discovery 

sanctions. E. Maico Distrib., Inc. v. Maico-Fahrzeugfabrik, 

G.m.b.H., 658 F.2d 944 (3d Cir. 1981). There, we stated that 

“[w]e note that other types of discovery sanctions against 

non-parties may be appealed immediately even when imposed 

against a party‟s attorney. But those sanctions are unlike 

Rule 37(a) penalties in both purpose and effect, in ways 

directly relevant to the reasons for permitting an immediate 

appeal. In civil contempt proceedings or Rule 37(b) sanctions 

against a non-party, even against an attorney to or an officer 

of a party, an appeal generally need not wait until final 

judgment in the case as a whole.” Id. at 949.
10

In light of the distinction drawn both by our Court and 

the Supreme Court between sanctions imposed pursuant to 

Rule 37 and a finding of contempt imposed pursuant to Rule 

45, the Magistrate Judge‟s action in holding Ms. Rohn in 

contempt pursuant to Rule 45 is significant regarding whether 

we have jurisdiction over this case. Third Circuit law is clear 

— non-party witnesses who are held in contempt may 

immediately appeal the contempt order. In re Flat Glass 

Antitrust Litig., 288 F.3d 83, 88 (3d Cir. 2002) (“[W]e have 

held nonparty witnesses must be held in contempt before 

seeking appellate review.”).

7

 

We must now determine whether Ms. Rohn should be 

treated as a party based on the congruence of her interest with 

the interests of her clients in bringing the recusal motion. We 

conclude, based on the facts of this case, that Ms. Rohn was 

being subpoenaed as a witness, rather than in her capacity as 

counsel to the movants. By submitting her declaration, along 

with letters she authored, personal travel information, and 

other personal information, unrelated to any of the cases 

pending before the District Judge, Ms. Rohn made herself a 

witness in the recusal matter. She placed her credibility at 

issue. The subpoena sought information related to these 

questions, which is unrelated to the merits of any of the seven 

cases in which the recusal motions were filed. 

 

7

Similarly, legal commentators have observed that “[f]inal 

contempt adjudications, imposing sanctions, are deemed 

appealable as final decisions in all situations other than that of 

civil contempt against a party to a pending proceeding.” 15B 

Wright & Miller, Federal Practice & Procedure § 3917.
11

In our view, Ms. Rohn was a nonparty witness when 

the Magistrate Judge held her in contempt for failing to 

comply with the requirements of the subpoena. Based on this 

determination, we have jurisdiction to review the finding of 

contempt.8

III. Analysis

Defendants moved, pursuant to Fed. R. Civ. P. 45, to 

hold Ms. Rohn in contempt for failing to comply with the 

subpoena. Acting upon this motion, the Magistrate Judge 

held Ms. Rohn in contempt. Magistrate judges are granted 

contempt authority by statute.9 28 U.S.C. § 636(e).10 Citing 

 

8

Parenthetically, we note that our precedent in Lazy Oil Co. 

v. WITCO Corp., 166 F.3d 581, 585-87 (3d Cir. 1999), 

allows an additional basis to assert jurisdiction over this 

appeal, given the fact that the District Judge denied the 

recusal motion on September 8, 2011. In Lazy Oil, we 

affirmed our prior precedent that authorized our jurisdiction 

in cases where a premature notice of appeal subsequently 

ripened into a valid notice of appeal when a final judgment 

was entered before our consideration of the case. Id. at 585-

86. 

9 We note that the contempt authority set forth in Fed. R. Civ. 

P. 45(e) does not expand a magistrate judge‟s authority to 

hold Ms. Rohn in contempt for failing to comply with the 

subpoena. 

10 Section 636(e)(6) provides in pertinent part that upon 

commission of an act that constitutes civil contempt, where 

the magistrate judge is not sitting pursuant to the consent 

provisions of 28 U.S.C. § 636(c), 
12

28 U.S.C. § 636(e)(7), 11 Ms. Rohn appealed the Magistrate 

Judge‟s contempt finding to the District Judge, who, without 

holding a hearing, issued an order denying the appeal and 

affirming the order of contempt. 

Though arising in a criminal, rather than civil context, 

the actions of the magistrate judge and district judge in 

Taberer v. Armstrong World Indus., Inc., 954 F.2d 888 (3d 

Cir. 1992) closely track the actions of the judges in the case 

before us. In Taberer, we clarified the scope and extent of a 

 

the magistrate judge shall forthwith certify the 

facts to a district judge and may serve or cause 

to be served, upon any person whose behavior 

is brought into question under this paragraph, 

an order requiring such person to appear before 

a district judge upon a day certain to show 

cause why that person should not be adjudged 

in contempt by reason of the facts so certified. 

The district judge shall thereupon hear the 

evidence as to the act or conduct complained of 

and, if it is such as to warrant punishment, 

punish such person in the same manner and to 

the same extent as for a contempt committed 

before a district judge. 

28 U.S.C. § 636(e)(6). 

11 Section 636(e)(7) provides that “[t]he appeal of an order of 

contempt under this subsection shall be made to the court of 

appeals in cases proceeding under subsection (c) of this 

section. The appeal of any other order of contempt issued 

under this section shall be made to the district court.” 
13

magistrate judge‟s contempt authority. We noted that “under 

the statute, the magistrate judge‟s certification of facts seems 

designed to serve the function of a charging instrument or 

pleading for a trial to be held before the district judge.” Id. at 

903. We further distinguished between the requirements of 

section 636(b)(1)(B) which authorizes magistrate judges to 

conduct hearings and “submit to [a district judge] proposed 

findings of fact and recommendations for the disposition, by 

[a district judge], of any motion excepted in subparagraph 

(A),” 28 U.S.C. § 636(b)(1)(B), and the certification 

procedure set forth in section 636(e)(6). 

In addition to the difference in the procedure, we noted 

the different role the district judge plays in each of these 

situations. With respect to section 636(b)(1)(B), a district 

judge makes a de novo determination, while under section 

636(e)(6), a district judge conducts a de novo hearing. 

Taberer, 954 F.2d at 904. That is, 

[a] de novo determination requires the district 

judge to “consider the record which has been 

developed before the magistrate and make his 

own determination on the basis of that record, 

without being bound to adopt the findings and

conclusions of the magistrate.” In contrast, a de 

novo hearing entails a new proceeding at which 

the decision is based solely on the evidence 

freshly presented at the new proceeding.

Id. (internal citations omitted) (quoting H.R. REP. NO. 94-

1609, at 3 (1976), reprinted in 1976 U.S.C.C.A.N. 6163 and 

citing United States v. Raddatz, 447 U.S. 667, 673-76 

(1980)).
14

In the present case, concluding that Rule 45 authorized 

him to do so, the Magistrate Judge entered an order granting 

the motion seeking to hold Ms. Rohn in contempt. The 

Magistrate Judge did not certify any facts to the District 

Judge, nor did the Magistrate Judge enter an order requiring 

Ms. Rohn to show cause before the District Judge why she 

should not be held in contempt. Ms. Rohn appealed this 

finding to the District Court, citing 28 U.S.C. § 636(e)(7). 

The District Judge then entered an order, without holding a

hearing, affirming the Magistrate Judge‟s order. 

This procedure by both the Magistrate Judge and 

District Judge clearly violated the procedural requirements set 

forth in 28 U.S.C. § 636(e)(6). First, the Magistrate Judge did 

not certify the facts to the District Judge. Second, the District 

Judge did not hold a hearing. Ms. Rohn‟s appeal, filed 

pursuant to 28 U.S.C. § 636(e)(7), did not change the

procedural requirements of § 636(e)(6). Although Ms. 

Rohn‟s § 636(e)(7) appeal may have also been filed in error 

procedurally, the first violation of § 636(e)(6) precedes her 

error and must be rectified. 

The language of the statute makes it clear that appeals 

authorized by § 636(e)(7) are only available from contempt 

orders entered by a magistrate judge. The instances where a 

magistrate judge may enter a contempt order are set forth in 

§ 636(e)(2), (3), and (4). Specifically, § 636(e)(2) authorizes 

a magistrate judge “to punish summarily by fine or 

imprisonment, or both, such contempt of the authority of such 

magistrate judge constituting misbehavior of any person in 

the magistrate judge‟s presence so as to obstruct the 

administration of justice.” Section 636(e)(3) extends this 

criminal contempt authority to include “any case in which a 

United States magistrate judge presides with the consent of 
15

the parties under subsection (c) of this section, and in any 

misdemeanor case proceeding before a magistrate judge 

under section 3401 of title 18,” by granting the magistrate 

judge “the power to punish, by fine or imprisonment, or both, 

criminal contempt constituting disobedience or resistance to 

the magistrate judge‟s lawful writ, process, order, rule, 

decree, or command.” Finally, § 636(e)(4) authorizes a 

magistrate judge to “exercise the civil contempt authority of 

the district court” in civil cases where the magistrate judge is 

presiding by consent of the parties pursuant to 28 U.S.C. 

§ 636(c) or in criminal cases where the magistrate judge is 

presiding pursuant to the authority of 18 U.S.C. § 3401. 

The facts adduced here do not fall within the ambit of 

§ 636(e)(2), (3), or (4). Therefore, the Magistrate Judge‟s 

contempt order was invalid and the District Judge erred in 

affirming the order. 

In 2000, subsequent to our decision in Taberer, 

Congress amended § 636(e). The amendments to § 636(e), 

while expanding magistrate judges‟ contempt authority, did 

not impact the certification procedure we addressed in 

Taberer. That procedure continues to be required in this case. 

The statute does not grant the Magistrate Judge the authority 

to enter a contempt order since the action complained of did 

not fall within the definitions set forth in 28 U.S.C. § 

636(e)(2), (3), or (4). Ms. Rohn‟s actions occurred outside of 

the Magistrate Judge‟s presence, and not in a proceeding 

where the Magistrate Judge was presiding with the consent of 

the parties pursuant to § 636(c). Instead, the Magistrate 

Judge was overseeing pretrial proceedings, pursuant to § 

636(b)(1)(A). Therefore, the Magistrate Judge should have 

certified the facts of the alleged contempt to the District 
16

Judge, who in turn should have held a hearing to determine 

those facts. 

IV. Conclusion

For the reasons set forth above, we find that we have 

jurisdiction to hear this case. We will remand the case so that 

the Magistrate Judge and District Judge can proceed in 

accordance with the requirements of 28 U.S.C. § 636(e)(6).12 

 

12 Ms. Rohn urges us to reverse and remand with instructions 

that contempt is inappropriate based on the facts of the case. 

Neither the Magistrate Judge nor the District Judge found any

facts with respect to Ms. Rohn‟s alleged contempt. As such, 

there are no facts upon which we may base a decision. We 

simply cannot say, based on the scant record, what the 

ultimate resolution of this matter could or should be. We can 

only remand in order for the District Court to follow the 

certification procedure set forth in 28 U.S.C. § 636(e)(6).