# United States Court **of Appeals**  **f or the Fifth Circuit** 

No s . 20

- 30170 and 20

- 30341 Summary Calendar

**REC Marine Logistics, L.L.C.,**

Plaintiff

— Appellant **,**

versus
**DeQuincy R. Richard,**

Defendant

— Appellee

**.**

Appeal s from the United States District Court for the Eastern District of Louisiana USDC No. 2:19

- CV

- 11149

Before **King, Smith,** and **Wilson,** Circuit Judges

**. Per Curiam**  **:** * Fred E. Salley, former counsel for plaintiff REC Marine Logistics,
L.L.C. , appeals sanctions ordered against him in the underlying matter

. In the first appeal, Case No. 20

- 30170, Salley challenges $ 1,500 in sanctions

* Pursuant to **5th Cir cuit**  **R ule**  47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in **5th Cir cuit**  **R ule**  47.5.4. United States Court of Appeals Fifth Circuit 

### FILED November 6, 2020 Lyle W. Cayce Clerk Case: 20-30341 Document: 00515629491 Page: 1 Date Filed: 11/06/2020No s . 20

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- 30341

2 that were imposed on him because of his failure to comply with discovery requests and to provide dates and times for a vessel inspection

. 1 In the second appeal, Case No. 20

- 30341, Salley challenges sanctions that were awarded because of his disruptive behavior at a deposition. 2 In both appeals, Salley argues that the sanctions were improper because he had been suffering from severe illness at the time of the sanctioned behavior

.

“ A s a general rule an attorney must await the end of litigation in the district court to appeal a sanction.” Walker v. City of Mesquite , 129 F.3d 831, 832 (5th Cir. 1997). Indeed, we have held that “s anctions orders are not

. . . appealable final decisions ” under 28 U.S.C. § 1291 or “ appealable collateral orders ” pursuant to Cohen v. Beneficial Life Insurance Co. , 337 U.S. 541 (1949)

. Williams v. Midwest Employers Cas. Co. , 243 F.3d 208 , 209 (5th Cir. 2001). The latter is so because “ sanctions can be and rout inely are appealed when merged in the district court ’ s final judgment. ” Click v. Abilene Nat’l Bank , 822 F.2d 544, 545 (5th Cir. 1987). 3

1 The district court did not expressly state whether those sanctions were awarded pur suant to its inherent power or a particular Federal Rule of Civil Procedure, but such sanctions are permitted under **F ed**  **. R. C iv**  **. P.** 37 for failure to make disclosures or cooperate in discovery

.

2 Salley was individually sanctioned in the amount of $1,000 under **F ed**  **. R. C iv** 

**. P.**  30(d)(2) (“[T]he court may impose an appropriate sanction . . . on a person who impedes, delays, or frustrates the fair examination of the deponent.”).

3 In Click v. Abilene Nation al Bank , we specifically held that Rule 11 and Rule 37 sanctions were not appealable pursuant to the collateral order doctrine. 822 F.2d at 545

. However, this rule has also been applied to sanctions ordered under the district court’s inherent power, see Wi lliams , 243 F.3d at 210 , and the same logic applies to sanctions awarded under Rule 30(d)(2 ), see Grain Dealers Mut

. Ins. Co. v. Cooley , 734 F. App’x 223 , 227 (5th Cir. 2018) (considering district court’s denial of Rule 30(d)(2) sanctions after entry of fi nal judgment) ; Dardar v. Lafourche Realty Co., Inc. , 849 F.2d 955, 959 (5th Cir. 1988) (“[A]fter a truly final order, appellate review of any prior attorney’s fee determination will be available.”)

. Case: 20-30341 Document: 00515629491 Page: 2 Date Filed: 11/06/2020No s . 20

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3 Because the underlying matter is ongoing and no final judgment has been entered, we asked the parties to submit supplem ental letter briefs addressing whether Salley’s appeals are premature. Both parties responded that, because Salley was allowed to withdraw as counsel in the underlying

matter on October 6, 2020, his appeal s of sanctions ordered against him should be permitted

. We have recognized limited exceptions to the rule that sanctions orders are not appealable under the collateral order doctrine. Relevant to this case, in Markwell v. C ounty of Bexar , the court held that such orders are appealable “where an ord er assesses sanctions against an attorney who has withdrawn from representation at the time of the appeal, and immediate appeal of the sanctions order will not impede the progress of the underlying litigation.” 878 F.2d 899, 901 (5th Cir. 1989). It should be noted that the continued validity of this exception has been in question since the Supreme Court decision in Cunningham v. Hamilton County , in which the Court emphasized that “the appealability of a Rule 37 sanction imposed on an attorney” should not “t urn on the attorney’s continued participation.” 527 U.S. 198, 2 09 (1999); see also Williams , 243 F.3d at 210 (“It is

. . . doubtful that the exception[] to Click created by Markwell . . . survive[d] Cunningham .”). Regardless of Markwell ’s continuing validi ty, it is not applicable in this case. Though Salley did withdraw as an attorney on October 6, 2020, he had not withdrawn “at the time of the appeal” in either Case No.
20

- 30341 or Case No. 20

- 30170. Markwell , 878 F.2d at 901; see also Nogess v. Poydras Ce nter, L.L.C. , 728 F. App’x 303, 307 (5th Cir. 2018) (refusing to apply Markwell exception because, though sanctioned attorneys no longer represented a party at the time of decision, they did not withdraw until “months after the time of the appeal”). Indeed , Salley’s withdrawal in October did not come until months after his appeals were filed. Accordingly, even if the Markwell exception has continuing viability (which we need not Case: 20-30341 Document: 00515629491 Page: 3 Date Filed: 11/06/2020No s . 20

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4 decide), it does not apply in this case , and we are without jurisdiction over Salley’s appeals. Based on the foregoing, the appeals are **DISMISSED** for lack of jurisdiction. Case: 20-30341 Document: 00515629491 Page: 4 Date Filed: 11/06/2020