1997 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

7-22-1997

In Re: Tutu Wells

Precedential or Non-Precedential:

Docket 96-7385,96-7392

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Recommended Citation

"In Re: Tutu Wells" (1997). 1997 Decisions. Paper 163.

http://digitalcommons.law.villanova.edu/thirdcircuit_1997/163
iled July 22, 1997 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

NOS. 96-7385, 96-7386, 96-7387, 96-7388 

96-7389, 96-7390, 96-7391, 96-7392 

IN RE: TUTU WELLS CONTAMINATION LITIGATION 

ESSO STANDARD OIL S.A. LTD.; ESSO VIRGIN ISLANDS, 

INC.; ESSO STANDARD OIL CO., (PUERTO RICO) 

APPELLANTS IN NO. 96-7385

GOLDMAN, ANTONETTI & CORDOVA; FRANCIS TORRES, 

ESQUIRE; JOSE CEPEDA, ESQUIRE 

APPELLANTS IN NO. 96-7386

EUGENIO C. ROMERO, AN ATTORNEY AT LAW, 

APPELLANT IN NO. 96-7387

L'HENRI, INC., 

APPELLANT IN NO. 96-7388

RHODA HARTHMAN; CHARLOTTE A. LABARRE; 

ALBERT E. HARTHMAN; ARTHUR E. HARTHMAN; 

AUSTIN E. HARTHMAN; EDGAR A. HARTHMAN; 

SAMMY E. HARTHMAN; P.I.D., INC.; 

TUTU SERVICES, LIMITED, 

APPELLANTS IN NO. 96-7389

RAMSAY MOTORS, INC., 

APPELLANT IN NO. 96-7390

TEXACO INC.; TEXACO CARIBBEAN, INC.; 

VERNON MORGAN, 

APPELLANTS IN NO. 96-7391

FOUR WINDS PLAZA PARTNERSHIP, 

APPELLANTS IN NO. 96-7392
On Appeal From the United States District Court 

of the Virgin Islands 

Division of St. Thomas 

(D.C. Civ. No. 89-cv-00107) 

Argued: March 11, 1997 

Before: BECKER, SCIRICA, and ALITO, Circuit Judges. 

(Filed July 22, 1997) 

KELL M. DAMSGAARD, ESQUIRE 

 (ARGUED) 

TERRI JACOBSEN, ESQUIRE 

Morgan, Lewis & Bockius LLP 

2000 One Logan Square 

Philadelphia, PA 19103-6996 

DOUGLAS L. CAPDEVILLE, 

 ESQUIRE 

2107 Company Street 

Lot No. 4 

Christiansted, St. Croix, VI 00820 

Attorneys for Appellants

Esso Standard Oil S.A. Ltd.,

Esso Virgin Islands, Inc.,

Esso Standard Oil Co. (Puerto Rico)

 2 
DANIEL RIESEL, ESQUIRE 

Sive, Paget & Riesel, P.C. 

460 Park Avenue 

New York, New York 10022 

VINCENT J. APRUZZESE, 

 ESQUIRE (ARGUED) 

Apruzzese, McDermott, Mastro & 

 Murphy 

Somerset Hills Corporate Center 

25 Independence Blvd. 

Liberty Corner, New Jersey 07938 

EDWARD H. JACOBS, ESQUIRE 

Jacobs & Brady 

7 Church Street 

Christiansted, St. Croix 

U.S. Virgin Islands 00820 

Attorneys for Appellants Goldman,

Antonetti & Cordova, Francis Torres,

Esquire, and Jose A. Cepeda,

 Esquire

JOEL H. HOLT, ESQUIRE (ARGUED) 

Holt & Russell 

2132 Company Street, Suite 2 

Christiansted, St. Croix 

U.S. Virgin Islands 00820 

Attorney for Appellant

Eugenio C. Romero

 3 
NANCY D'ANNA, ESQUIRE 

 (ARGUED) 

Law Office of Nancy D'Anna 

P.O. Box 8330 

St. John, U.S. Virgin Islands 00831 

Attorney for Appellants L'Henri, Inc.,

Rhoda J. Harthman, Charlotte A.

Lebarre, Albert E. Harthman,

Austin E. Harthman, Edgar A.

Harthman, Sammy E. Harthman PID,

Inc., Water Services, Limited and

Tutu Park, Limited

CAROL ANN RICH, ESQUIRE 

 (ARGUED) 

Campbell, Areliano & Rich 

4A&B Kongens Gade 

P.O. Box 11899 

Charlotte Amalie, St. Thomas 

U.S. Virgin Islands 00820 

Attorney for Appellant

Ramsay Motors, Inc.

JOHN K. DEMA, ESQUIRE 

 (ARGUED) 

CAREY-ANNE MOODY, ESQUIRE 

Law Offices of John K. Deman, P.C. 

1236 Strand Street, Suite 103 

Christiansted, St. Croix 

U.S. Virgin Islands 00820-5008 

Attorneys for Four Winds Plaza

Partnership

 4 
ADDISON J. MEYERS, ESQUIRE 

 (ARGUED) 

O'Connor & Meyers, P.A. 

2801 Ponce de Leon Blvd., 9th Floor 

Coral Gables, Florida 33134 

Attorneys for Appellants Texaco Inc.

and Texaco Caribbean Inc.

JOHN ZEBEDEE, ESQUIRE 

Hymes & Zebedee, P.A. 

P.O. Box 990 

Emancipation Garden Station 

Charlotte Amalie, St. Thomas 

U.S. Virgin Islands 00804-0990 

Attorneys for Vernon Morgan

JOHN R. COON, ESQUIRE 

 (ARGUED) 

Wright, Coon & Cunningham, P.A. 

377 Fore Street 

P.O. Box 7526 

Portland, Maine 04112-7526 

Attorneys for Appellee

Western Auto Supply Co.

JULIO A. BRADY, ESQUIRE 

Attorney General 

Government of the Virgin Islands 

Department of Justice 

6040 Castle Coakley 

Christiansted, St. Croix 

U.S. Virgin Islands 00820 

Attorneys for Amicus Curiae

 5 
OPINION OF THE COURT 

BECKER, Circuit Judge. 

This is an appeal from an order of the district court 

imposing heavy sanctions upon a law firm, several of its 

partners, and its client for discovery violations in 

connection with a large environmental lawsuit. The client, 

Esso, is charged in the underlying complaint with having 

poisoned "the wells" in the Estate Tutu area in the eastern 

end of St. Thomas by releasing from the Esso Tutu service 

station petroleum hydrocarbons and chlorinated 

hydrocarbons into the Tutu aquifer which supplies drinking 

water to much of the east end of the island. The discovery 

abuse primarily involves the alleged suppression by Esso's 

former counsel in the litigation, the San Juan, Puerto Rico 

law firm of Goldman, Antonetti, Ferraiuoli & Axtmayer, of a 

report by Jose Agrelot, a professional engineer, 

summarizing the results of soil and liquid tests he had 

performed at the Esso Tutu site in December 1989. The 

suppression of this report is claimed to have dramatically 

increased the discovery time and expense for other parties 

in connection with their prosecution of the case. There are 

also other alleged, though less aggravated, instances of 

obdurate discovery-related behavior. 

What specially marks this case is the character and

magnitude of the sanctions imposed. Eschewing the 

auspices of Fed. R. Civ. P. 37, which authorizes sanctions 

for failure to make disclosure or cooperate in discovery, the 

district court imposed the challenged sanctions under its 

inherent power. The sanction imposed on the lawyers was 

suspension from practice in the District Court of the Virgin 

Islands: Jose Cepeda and Francis Torres for three years, 

and Eugenio Romero for one year. The sanction imposed 

upon Esso was the payment of $750,000 to a "Community 

Service Sanction Account" to be utilized to fund 

construction of a halfway house on St. Thomas, the 

training of inmates, and renovation of the St. Thomas 

Criminal Justice Complex. The sanction imposed upon

Goldman Antonetti was the payment of $250,000 to the 

 6 
Community Service Sanction Account (for the same 

purpose), and the sum of $120,000 as counsel fees and 

costs ($30,000 incurred by each of four moving parties for 

time they spent in connection with the sanctions 

proceedings themselves). Esso was similarly assessed a 

sanction of $30,000 to be paid to each of four other 

movants, but Esso has paid that sum and does not 

challenge it on this appeal. 

Goldman Antonetti, its three named partners, and Esso 

appeal the sanctions imposed against them on a variety of 

grounds. The parties who were awarded sanctions to 

compensate them for the time expended in the sanctions 

hearings have cross-appealed, alleging that they are entitled 

to sizable additional sanctions for discovery misconduct 

that caused harm in other phases of the lawsuit, and that 

the district court abused its discretion in summarily 

dismissing these other sanctions requests on the grounds 

that the moving papers were insufficiently specific. Finally, 

several parties against whom Esso has brought claims 

for contribution in the Comprehensive Environmental

Response, Compensation and Liability Act ("CERCLA")

aspect of the underlying district court proceeding (that is all 

that remains, since the common law claims have been

settled) have cross-appealed from the district court's refusal 

to dismiss those claims as a sanction against Esso for its 

discovery misconduct. 

We will vacate the suspensions imposed upon Cepeda,

Torres, and Romero for procedural reasons. They did not 

receive notice prior to the sanctions hearing that 

suspension was being considered as a possible sanction. 

Concomitantly, they did not have the opportunity to

properly defend against such a sanction and introduce 

mitigating evidence. As a result, the court's imposition of 

sanctions against Cepeda, Torres, and Romero violated due 

process requirements. 

We will also vacate the provision of the district court's 

order requiring Esso and Goldman Antonetti to pay a total 

of $1,000,000 to the Community Service Sanction Account. 

The court simply had no power to order Esso and Goldman 

Antonetti to pay money to benefit the St. Thomas penal 

system. 

 7 
We do, however, affirm the sanction of $120,000 against 

Goldman Antonetti. Although Goldman Antonetti has made 

quite forceful arguments that its discovery misconduct with 

respect to the Agrelot summary memo could not have 

caused all of the costs and expenses claimed by the

movants, particularly in view of its having disclosed the 800 

pages of technical material on which the memo was based, 

we cannot say, reviewing the record as a whole, that the 

district court abused its discretion in awarding sanctions of 

$120,000. We also reject Goldman Antonetti's contention 

that it is relieved of the obligation to pay this sanction by 

a release by which several of the parties gave up claims 

against Esso and its attorneys. The district court did not 

clearly err in concluding that the language in the release 

was not broad enough to cover Goldman Antonetti, Esso's 

former attorneys, and that the context of the release did not 

suggest otherwise. 

We are also satisfied that the district court did not abuse 

its discretion in refusing to award additional sanctions 

because of the failure of the movants to provide papers 

adequate to assess the harm caused by the violation. 

District courts, which are extremely busy, should not be 

burdened with re-inventing the wheel in incredibly complex 

litigation in order to sort out voluminous sanctions claims. 

The foregoing threshold summary effectively disposes of 

all appeals except the cross-appeals seeking dismissal of 

the claims for contribution. However, we do not have 

appellate jurisdiction over these cross-appeals. Because our 

review of that aspect of the district court's order would 

necessarily involve an analysis of the merits of the 

underlying dispute and because the district court's order is 

reviewable only after final judgment, we do not have 

jurisdiction over this non-final order under the only 

potentially viable basis therefor -- the collateral order 

doctrine. See Cohen v. Beneficial Indus. Loan Co., 337 U.S. 

541 (1949). We note in this regard that this aspect of the 

case differs from the appeal of Goldman Antonetti. Under 

Eavenson, Auchmuty & Greenwald v. Holtzman, 775 F.2d 

535 (3d Cir. 1985), we have appellate jurisdiction over an 

order that finally resolves the imposition of sanctions 

against attorneys no longer in the underlying case. We also 

 8 
review those aspects of the appeal not brought by, but 

inextricably intertwined with, the issues raised by Goldman 

Antonetti, i.e., Esso's contentions pertaining to the 

Community Service Sanction Account and the claims of 

other parties pertaining to the level of monetary sanctions 

awarded them, under the doctrine of pendent appellate 

jurisdiction. See Kershner v. Mazurkiewicz, 670 F.2d 440 

(3d Cir. 1982). 

We would prefer to be able to adjudicate the crossappeals concerning the contribution claims because we 

have spent a great deal of time both in brief reading and at 

oral argument in familiarizing ourselves with the case. 

However, as a court of limited jurisdiction, we do not 

dispose of matters that are not properly the subject of 

appellate jurisdiction. We also do not encourage a§ 1292(b) 

certification because the complexion of the issues involved 

in these other appeals may change as matters proceed 

before the district court. The extraordinarily able district 

judge, who has been adroitly managing this complex and 

vexatious case for a number of years now, may be able, by 

subsequent rulings, to put these matters in a sufficiently 

different light as to render them susceptible to more facile 

disposition down the road. 

I. FACTS AND PROCEDURAL HISTORY 

A. Background And Overview

In the summer of 1987, a water well owner noticed the 

smell of gasoline emanating from his well. He contacted 

local environmental officials who, with the help of the 

federal government, began an investigation into possible 

contamination of the Tutu aquifer. Investigators discovered 

the presence of gasoline and chlorinated organics in the 

aquifer. Government officials thereafter closed many of the 

wells. 

The discovery of the contamination led to a number of 

private lawsuits. Detailed explication of the anatomy of the 

various suits is unnecessary; it is sufficient to note that the 

private litigation seeks to assign responsibility for the 

contamination between and among a number of possible 

 9 
contaminators, including but not limited to two automobile 

service stations, an automobile dealer, a shopping plaza, a 

dry cleaner, and a former textile plant. That private 

litigation also includes claims for contribution under 

CERCLA. The parties in the litigation include both possible 

contaminators and businesses and landowners allegedly 

harmed by the contamination.1 The law firm of Goldman, 

Antonetti, Ferraiuoli & Axtmayer ("Goldman Antonetti") 

represented Esso for much of the period in question but no 

longer does so.2 

Discovery began in 1989. During this discovery, Esso and 

Goldman Antonetti employed practices the district court 

found to be sanctionable. In its three opinions regarding 

the sanctions, the district court grouped the discovery 

violations into three categories. First, the court found that 

Esso and its attorneys engaged in a strategy that kept the 

various other parties in the litigation from obtaining needed 

information in a timely fashion. See In re Tutu Wells

Contamination Litig., 162 F.R.D. 46, 70-71 (D.V.I. 1995) 

[hereinafter "Tutu I"]. Without delving into the specifics of 

individual abuses, the court noted that Esso and Goldman 

Antonetti met many discovery requests with legal tactics 

intended to delay, oppress, or harass their opponents. 

Often, Esso and Goldman Antonetti would refuse to turn 

over requested documents until forced to do so by court 

_________________________________________________________________ 

1. The parties relevant to our discussion, are Esso Standard Oil, S.A. 

Ltd., Esso Virgin Islands, Inc., and Esso Standard Oil Co. (Puerto Rico) 

(collectively "Esso"); Rhoda Harthman, Charlotte Labarre, Albert 

Harthman, Arthur Harthman, Austin Harthman, Edgar Harthman, 

Sammy Harthman, P.I.D., Inc., and Tutu Services Limited (collectively 

"PID/Harthman") (owners of a shopping center); Texaco, Inc. and Texaco 

Caribbean, Inc. (collectively "Texaco"); Vernon Morgan; Laga Industries, 

Ltd., Duplan Corp., Panex Company, Paul Lazare, and Andreas Gal 

(collectively "the Laga Defendants") (operators of a former textile plant); 

Four Winds Plaza Partnership ("Four Winds") (owners of a shopping 

center); Ramsay Motors, Inc. ("Ramsay Motors"); L'Henri, Inc. ("L'Henri") 

(a dry cleaner); and Western Auto Supply Company ("Western Auto"). 

Excluded from this list are the plaintiffs from the so-called Total Vision 

case. None of the plaintiffs in that case are involved in the sanctions 

dispute. 

2. Goldman Antonetti has since changed its name, and is now called 

Goldman, Antonetti & Cordova. 

 10 
order. According to the court, the level of judicial 

involvement in the discovery process was consequently 

unusually high, requiring the court unnecessarily to devote 

significant resources to resolving ordinary discovery 

disputes. 

Second, the court focused on the handling of the socalled Agrelot memorandum. In December 1989, Soil Tech, 

a company that specializes in environmental analyses of 

soil, took samples from the soil at the Esso Tutu Service 

Station ("ETSS") and from liquid in a holding tank at ETSS. 

Soil Tech sent those samples to the Environmental Testing 

and Certification Corp. ("ETC") for analysis. ETC returned 

the results of the investigation to Soil Tech shortly 

thereafter. The results revealed some contamination. Jose 

Agrelot, President of Soil Tech, received the preliminary 

results and summarized them in a memorandum, which he 

forwarded to Goldman Antonetti in anticipation of a

meeting in January 1990. ETC produced the final results of 

the testing shortly after the meeting had occurred. Agrelot 

testified that he discussed the memorandum with attorneys 

at Goldman Antonetti, including Jose Cepeda and Francis 

Torres. It is not clear from the record, however, whether 

Cepeda ever actually saw the Agrelot memorandum at that 

time. The results were also discussed at a May, 1990 

meeting at which Eugenio Romero was present along with 

Cepeda, Torres, and Agrelot, among others. 

Although for the most part the Agrelot memorandum 

merely summarized the information contained in the ETC 

findings, the memorandum did include a map pinpointing 

the locations of the soil borings from which the tested soil 

was taken. It appears from the record that, without the 

Agrelot memorandum, someone examining the ETC data 

could not determine with precision the location of the 

borings. The record does, however, give some indication 

that there is enough information in the ETC supporting 

data that was made available to determine that the ETC 

analyzed soil from ETSS rather than from some other

location above the Tutu aquifer. Esso and its attorneys 

 11 
produced the full ETC report on which the Agrelot 

memorandum was based.3 

However, neither Esso, Goldman Antonetti, nor Soil Tech 

turned over the Agrelot memorandum during discovery

until October 1993. Prior to that time, various parties had 

specifically requested all reports generated from soil and 

groundwater testing in the Tutu area, but the responses to 

such requests, either signed by or reviewed by Esso

employees or Goldman Antonetti attorneys, made no 

mention of the Agrelot memorandum. The reasons for this 

omission are not clear. Lawyers from Goldman Antonetti 

testified that the Agrelot memorandum had been indexed 

incorrectly in their computer database; Agrelot himself 

testified that the memorandum had been labeled incorrectly 

and therefore misfiled in his office. The district court found 

that the failure to produce the Agrelot memorandum was 

intentional. See Id. at 65-66. At all events, only after Agrelot 

had searched his files in the fall of 1993 to assist Esso in 

negotiating a case management order did he find the

memorandum and turn it over to Esso, who revealed it to 

its new counsel Archer & Greiner. It was Archer & Greiner 

that finally notified the other parties of its existence. 

The third category of violations occurred in connection 

with an attempted inspection underneath the surface of the 

ETSS site. In particular, the plaintiffs wished to determine 

whether an underground storage tank was located on the 

_________________________________________________________________ 

3. It is also not clear from the record, and the parties disagreed at oral 

argument, when each of the parties received the ETC data and whether 

Esso and its attorneys complied with court orders governing the 

production of such material. It seems that the confusion arises because 

Esso and its attorneys apparently did not physically produce the ETC 

data to each and every party who may have requested it. However, at 

oral argument Esso and its attorneys plausibly asserted that court 

orders managing discovery envisioned that the parties seeking such 

reports would coordinate among themselves examination of such reports. 

According to Esso and its attorneys, to avoid duplicative and 

unnecessary production of lengthy documents (for example, the ETC 

report exceeds 800 pages) they needed only produce to late-coming 

parties a list or catalogue of reports already produced, and those parties 

could then examine the reports in the possession of other parties. We do 

not resolve this issue here. 

 12 
site, and also to trace the pipes leading out of the oil/water 

separator located on the site. The parties refer to this 

aspect of the discovery as the "anomaly investigation." In 

May, 1992, the plaintiffs employed ground penetrating 

radar ("GPR") to examine the area beneath the ETSS. The 

GPR turned up an anomalous shadow in the corner of the 

site, possibly indicating the presence of an underground 

storage tank. Esso claimed that the GPR produced a false 

result because of interference from overhead power lines or 

from a reinforcing bar in a nearby retaining wall. The 

magistrate judge ultimately ordered an excavation of the 

site to determine once and for all if such a tank existed. It 

did not. 

Excavation of the site was to occur in accordance with 

the magistrate judge's order. However, according to the 

district court, Esso failed to comply with this order. See Id.

at 52-53. Instead, Esso began the excavation after a delay 

of several hours and did not have the necessary tools or 

machinery ready for the investigation. Further, Esso did not 

adequately conduct the pipe tracing phase of the 

investigation. This failure led to months of wrangling among 

the parties and between Esso and the court until Esso 

finally conducted the investigation to the satisfaction of the 

court, nearly 10 months after the investigation was

scheduled to be completed. 

B. The District Court's Opinions and Orders 

In three separate opinions, the district court discussed 

its findings with respect to these violations and issued 

orders imposing sanctions for them. In the first of the three 

opinions, the court began by detailing the anomaly 

investigation, see id. at 51-54, and the Agrelot 

memorandum affair, see id. at 54-62. The court went on to 

describe briefly the sources of law on which it planned to 

rely in imposing sanctions: its inherent powers; Federal 

Rules of Civil Procedure 11, 26(g), and 37; and 28 U.S.C. 

§ 1927. See id. at 62-63. The court next found that the 

failure to produce the Agrelot memorandum was not 

inadvertent and that this failure was non-responsive to 

discovery requests, notwithstanding the fact that the ETC 

 13 

data on which the memorandum relied was actually 

produced. See id. at 65-71. 

Finally, the court examined the possible sanctions. It 

observed that monetary awards for the fees and costs 

associated with the attempts to find evidence of the release 

of contaminants from the ETSS, the investigation costs 

resulting from the failure to produce the Agrelot 

memorandum, and the fees and costs incurred as part of 

the sanctions proceedings were all potentially recoverable. 
See id. at 72-73. After reviewing the controlling case of 

Poulis v. State Farm Fire & Cas. Co., 747 F.2d 863 (3d Cir. 

1984), the court reasoned that dismissal of Esso's CERCLA 

contribution claims against the other parties was also 

possible. See id. at 73-78. It concluded its discussion of 

possible sanctions by finding that Cepeda, Romero, and 

Torres could be sanctioned for their role in the discovery 

violations. See id. at 78-80. 

Instead of imposing sanctions at that time, the court 

ordered that Esso, Goldman Antonetti, Cepeda, Romero, 

and Torres show cause why the court should not sanction 

them for their actions. The court also provided the parties 

with the opportunity to negotiate a mutual resolution of the 

monetary sanctions prior to the hearing to show cause. See

id. at 81. 

In its next opinion on the matter, the court disposed of 

motions from Esso, Goldman Antonetti, Cepeda, Romero, 

and Torres seeking clarification, reconsideration, and 

modification of its earlier orders. First, the court disposed 

of claims that its hearings with respect to sanctions were 

conducted without due process. The court engaged in a 

detailed review of the orders, discussions, and hearings 

leading up to the sanctions proceedings and concluded 

that, taken together, the process provided ample notice of 

and opportunity to be heard regarding the sanctions faced 

by the various parties. See In re Tutu Wells Contamination

Litig., 162 F.R.D. 81, 83-88 (D.V.I. 1995) [hereinafter "Tutu

II"]. Next, the court held that the moving parties had 

produced no evidence sufficient to warrant a reexamination 

of its earlier factual findings. See id. at 88-89. Finally, the 

court rescribed its earlier holding that the actions of the 

moving parties prejudiced the other parties. See id. at 90- 

 14 
91. Esso, Goldman Antonetti, Cepeda, Romero, and Torres 

therefore still were required to show cause why monetary 

sanctions and dismissal of claims should not be imposed 

on them. See id. at 91. 

In its third and final opinion on the matter, the court 

decided what sanctions to impose on each of the parties. It 

began by finding that neither Esso, Goldman Antonetti, 

Cepeda, Romero, nor Torres had shown sufficient cause for 

the court not to impose some sanction on each of them. See

In re Tutu Wells Contamination Litig., 166 F.R.D. 331, 334- 

39 (D.V.I. 1996) [hereinafter "Tutu III"]. Instead, the court 

found that severe sanctions were merited. Because of the 

need to impose such severe sanctions, the court decided to 

rely exclusively on its inherent power to sanction. See id. at 

337. As for non-monetary sanctions, the court first held 

that dismissing the CERCLA contribution claims would be 

inappropriate because doing so would place too great a 

burden on Esso to clean up the contamination of the

aquifer (the court apparently believed that other parties 

shared responsibility for the contamination). Instead, the 

court reasoned that monetary sanctions would be adequate 

to achieve the goals of sanctioning. See id. at 339-40. Next, 

the court suspended Cepeda, Romero, and Torres from

practicing before the District Court of the Virgin Islands. 

See id. at 339-41.4 Cepeda and Torres received three-year 

suspensions. Because of contrition expressed to the court, 

Romero received a suspension of only one year. See id. at 

341. 

As for monetary sanctions, the court declined to award 

substantial sanctions in favor of the parties to the lawsuit 

(who had been unable to settle the monetary sanctions). 

See id. at 341-45. The parties to whom sanctions might be 

paid had submitted their requests for fees and costs to the 

court for review. The court found, however, that the 

submissions, which were voluminous but quite generalized, 

failed to make clear the basis for the parties' claims and 

_________________________________________________________________ 

4. Romero and Torres were admitted to practice before the court pro hac

vice. There is some dispute as to whether Cepeda was technically 

admitted. Because of the particular manner in which we resolve the 

appeal of the suspensions, we do not resolve this issue here. 

 15 
failed to provide records sufficient to justify the requested 

awards as sanctions. Instead of examining the submissions 

line-by-line, which the court did not feel obliged to do given 

the failure of the parties to be sufficiently specific, the court 

denied the bulk of the requests. See id. at 342-43. However, 

the court did believe that some sanction was warranted. It 

held that the costs associated with the sanctions 

proceedings themselves would be an appropriate sanction. 

To determine those costs, the court, expressing admiration 

for the stewardship of Nancy D'Anna, counsel for L'Henri, 

used the submissions of L'Henri as a model. 

L'Henri sought approximately $30,000 as costs for the 

sanctions proceedings. The court decided that such an 

award was reasonable, and awarded all eight parties

seeking monetary sanctions $30,000 each. See id. at 344. 

Because Esso and Goldman Antonetti were equal partners 

in the discovery violations, the court reasoned, each should 

bear equally the burden of the sanction. See id. Therefore, 

the court ordered Esso to pay $30,000 each to Ramsay 

Motors, L'Henri, PID/Harthman, and Vernon Morgan. See

id. Since Esso had already negotiated a settlement with 

these four parties as to monetary sanctions, and paid them 

a total of approximately $170,000, the court considered 

this portion of Esso's sanction to be satisfied. See id. at 344 

n.13. The court ordered Goldman Antonetti to pay $30,000 

each to the other movants, Four Winds, the Laga 

Defendants, Western Auto, and Texaco. See id. at 344. 

Finally, the court determined that additional sanctions 

against Esso and Goldman Antonetti were required. See id.

at 345-52. Recognizing that it was adopting a novel

approach to sanctioning, the court ordered Esso to pay 

$750,000 and Goldman Antonetti to pay $250,000 to a

Community Service Sanction Account that would be used 

to fund construction of a halfway house on St. Thomas, the 

training of inmates, and renovation of the St. Thomas 

Criminal Justice Complex. See id. The court opined that the 

parties truly harmed by the contamination of the Tutu 

aquifer and the delay in resolving responsibility over the 

contamination were the citizens of the Virgin Islands. 

Therefore, the most appropriate beneficiary of a sanction 

award, it reasoned, would be the Virgin Islands itself. And, 

 16 
because the Criminal Justice Center was in such great 

need of additional resources, it would be, the court 

believed, a suitable project towards which the funds could 

be directed. 

C. Anatomy of the Appeals

These appeals ensued. The following is a capsule 

summary of those appeals. Esso and Goldman Antonetti 

appeal the court's decision to use its inherent powers to 

require that they pay a total of $1,000,000 towards the 

Criminal Justice Center. Goldman Antonetti also appeals 

the imposition of the $120,000 monetary sanction payable 

to the other parties in the case. Cepeda, Romero, and 

Torres appeal their suspensions from practicing law in the 

Virgin Islands. Four Winds, L'Henri, Vernon Morgan,

PID/Harthman, Ramsay Motors, and Texaco appeal the 

court's decision to award only $30,000 to each of them as 

a sanction from either Esso or Goldman Antonetti; all of 

these parties argue that they are entitled to additional 

awards. Neither the Laga Defendants nor Western Auto has 

appealed, though Western Auto argues that should we

determine that parties are entitled to additional sanctions, 

it should be similarly entitled.5 The Department of Justice 

of the Virgin Islands has submitted an amicus curiae brief 

urging us to uphold the sanction award directed towards 

the Criminal Justice Center. 

Some aspects of our appellate jurisdiction over this 

matter are complicated. Because our jurisdiction in this 

case depends on the particular aspect of the appeal that we 

are examining, we will discuss jurisdiction together with 

each aspect of the merits. 

_________________________________________________________________ 

5. Because we find that no party is entitled to additional sanctions, we 

do not reach the question whether Western Auto would be entitled to 

additional sanctions even though it has not appealed. 

 17 
II. SUSPENSIONS OF ATTORNEYS CEPEDA, 

ROMERO, AND TORRES 

A. Appellate Jurisdiction

Appellate jurisdiction over the appeals of Cepeda, 

Romero, and Torres arises from 28 U.S.C. § 1291, which 

provides that the United States Court of Appeals for the 

Third Circuit has jurisdiction over appeals of final decisions 

of the District Court of the Virgin Islands. "[A] decision is 

ordinarily considered final and appealable under § 1291 

only if it `ends the litigation on the merits and leaves 

nothing for the court to do but execute the judgment.' " 

Quackenbush v. Allstate Ins. Co., ___ U.S. ___, 116 S. Ct. 

1712, 1718 (1996) (quoting Catlin v. United States, 324 U.S. 

229, 233 (1945)). In this case, the decision to suspend 

Cepeda, Romero, and Torres is not final in the usual sense. 

The claims for CERCLA contribution still exist; therefore, 

the litigation on the merits has not ended and the court has 

more to do than simply execute the judgment.6 

Under the collateral order doctrine, however, an 

otherwise non-final decision can be appealed if it finally 

and conclusively determines the disputed question, resolves 

an important issue separate from the underlying merits, 

and is effectively unreviewable after final judgment. See

Cohen, 337 U.S. at 546. It is unquestionable that the order 

from which Cepeda, Romero, and Torres appeal finally and 

conclusively determines the issue of their suspensions. We 

turn to whether the order resolves an important issue 

completely separate from the merits that is effectively 

unreviewable after final judgment. 

Addressing these issues slightly out of order, we begin 

with the question whether the order suspending Cepeda, 

Romero, and Torres is effectively reviewable after final 

judgment. Subsequent to the actions that gave rise to their 

suspensions, their former client, Esso, retained other 

counsel. Cepeda, Romero, and Torres are no longer in the 

underlying litigation at all. In Eavenson, Auchmuty &

_________________________________________________________________ 

6. The claims for CERCLA contribution were separated from the 

common-law claims and have been stayed. 

 18 
Greenwald v. Holtzman, 775 F.2d 535 (3d Cir. 1985), we 

held that an order imposing Rule 11 sanctions against an 

attorney no longer representing a party in a case was 

collaterally final under Cohen. See id. at 538-40. In that 

case, we reasoned that the attorney could not effectively 

appeal the sanctions after final judgment because the 

parties to the suit might not appeal, leaving open the 

possibility that the attorney would be unable to appeal his 

sanction, and, even if he were able to appeal, the attorney 

may be unaware of the entry of final judgment, leaving 

open the possibility that he would be unable to file a timely 

notice of appeal. See id. at 538-39. Eavenson Auchmuty

therefore controls our inquiry and leads us to conclude that 

the order from which Cepeda, Romero, and Torres appeal is 

effectively unreviewable after final judgment. 

The next question is whether our review of the order 

imposing sanctions will force us to examine the merits of 

the underlying case thereby rendering the appeal not 

completely separate from the merits. We have followed the 

rule that a "finding of separateness [in this regard] is 

dependent on the facts" in any given case. Martin v. Brown, 

63 F.3d 1252, 1261 n.11 (3d Cir. 1995).7 Here, our review 

of the order suspending Cepeda, Romero, and Torres would 

not force us to examine the merits of the case at all. 

Cepeda, Romero, and Torres each argue that the district 

court failed to afford them due process of law. Reviewing 

such a claim would require our examining the notice the 

court gave to Cepeda, Romero, and Torres, and the 

opportunity it gave them to be heard on the matter. This 

_________________________________________________________________ 

7. The rule in Martin is derived in part from two of our prior cases. In

Eavenson Auchmuty, the Rule 11 sanction arose from the alleged 

violation of a court order, and resolution of the sanctions issue therefore 

did not touch on the merits of the underlying case. Rather, the sanctions 

issue turned on the interpretation of the order. See id. at 538, 541-43. 

We distinguished the facts of Eavenson Auchmuty from those in Eastern

Maico Distribs., Inc. v. Maico-Fahrzeugfabrik, G.m.b.H., 658 F.2d 944 (3d 

Cir. 1981), where the validity of the sanction turned in part on whether 

the material requested during discovery was relevant to the merits of the 

litigation. See id. at 947. Neither Eastern Maico nor Eavenson Auchmuty

adopted a bright-line rule. Rather, taken together, the two cases suggest 

that a determination of separateness in this context must be on a caseby-case basis. 

 19 
review of the process by which the court imposed the 

sanctions in no way touches on the merits. 

Finally, we must consider whether the process due an 

attorney prior to a court's suspending him is important in 

the Cohen sense. "[A]n issue is important if the interests 

that would potentially go unprotected without immediate 

appellate review of that issue are significant relative to the 

efficiency interests sought to be advanced by adherence to 

the final judgment rule." In re Ford Motor Co., 110 F.3d 

954, 959 (3d Cir. 1997). We addressed this very issue in 

Martin, and concluded that protection of the 

constitutionally recognized right of due process in this 

context is sufficiently important to warrant immediate 

appeal. See Martin, 63 F.3d at 1261. This is especially true 

where, as here, the sanction imposed is not a mere 

monetary fine but the more severe sanction of the 

suspension of an attorney from practicing before a court. 

Suspension, much more than a fine, "impose[s] significant 

burdens on the reputation and career opportunities of the 

sanctioned attorney." Id. Therefore, relying on Martin, we 

hold that the issue raised by Cepeda, Romero, and Torres 

on appeal satisfies the importance prong of the Cohen test. 

In sum, because we believe that the order suspending 

Cepeda, Romero, and Torres is collaterally final under 

Cohen, we hold that we have jurisdiction over the appeal of 

that order. 

B. The Process Due Prior to Suspending an Attorney

Cepeda, Romero, and Torres submit that their 

suspensions cannot stand because the district court did 

not afford them particularized notice of the form of the 

sanctions they faced. They had no way of knowing, they 

contend, that the possibility of suspension as a sanction 

existed. Therefore, they conclude, their right to due process 

was infringed. Our review is plenary. See Martin, 63 F.3d at 

1262. 

In considering the suspension of an attorney as a 

sanction, courts must provide the attorney with due

process. Eash v. Riggins Trucking, Inc., 757 F.2d 557, 570 

(3d Cir. 1985) (noting that the imposition of a sanction on 

 20 
an attorney, including disbarment and other disciplinary 

actions, implicates due process concerns); cf. Roadway

Express, Inc. v. Piper, 447 U.S. 752, 767 (1980) ("Like other 

sanctions, attorney's fees certainly should not be assessed 

lightly or without fair notice and an opportunity for a 

hearing on the record."); Rogal v. American Broad. Cos., 74 

F.3d 40, 44 (3d Cir. 1996) ("The imposition of monetary 

sanctions by a court implicates fundamental notions of due 

process . . . ."). Although the precise contours of the 

process that is due varies given the particular context, "the 

fundamental requirements of due process -- notice and an 

opportunity to respond -- must be afforded before any 

sanction is imposed." Martin, 63 F.3d at 1261. Similarly, 

prior to the suspension of an attorney from practicing 

before the District Court of the Virgin Islands because of 

misconduct as defined by local rule, an attorney must be 

provided "notice and an opportunity to be heard." D.V.I. R. 

83.2(b)(4)(A). 

The party against whom sanctions are being considered 

is entitled to notice of the legal rule on which the sanctions 

would be based, the reasons for the sanctions, and the form

of the potential sanctions. See Simmerman v. Corino, 27 

F.3d 58, 64 (3d Cir. 1994). Without such notice, the 

opportunity to be heard would be meaningless: "[o]nly with 

this information can a party respond to the court's

concerns in an intelligent manner." Id. In other words, a 

party cannot adequately defend himself against the 

imposition of sanctions unless he or she is aware of the 

issues that must be addressed to avoid the sanctions. As 

one treatise writer has explained, "[d]ramatic differences in 

the relief being considered by the district court may lead to 

substantially different (e.g., more detailed, differently 

directed) responses by the alleged offender." Gregory P. 

Joseph, Sanctions: The Federal Law of Litigation Abuse

§ 17(D)(1)(d), at 343 (2d ed. 1994) (discussing Rule 11 

sanctions in particular). 

A brief examination of three of our cases illustrates the 

operation of this notice rule and the policy justifications 

supporting it. In Fellheimer, Eichen & Braverman, P.C. v.

Charter Technologies, Inc., 57 F.3d 1215 (3d Cir. 1995), we 

rejected a party's argument that he was denied adequate 

 21 
notice because of the failure to notify him that sanctions 

under 28 U.S.C. § 1927, in addition to those under Rule 11, 

were being considered. We noted that a showing of bad 

faith conduct is required to impose sanctions under § 1927 

but is not required under Rule 11. See id. at 1225. Without 

notice that possible § 1927 sanctions were at stake, a party 

might not employ his opportunity to be heard to rebut 

charges of bad faith. However, our examination of the 

context and the factual background of the case revealed 

that the party was well aware that he was being charged 

with bad faith conduct. See id. at 1226-27. That he was 

unaware of the possible § 1927 sanctions was immaterial, 

for he knew that he would need to confront the charge of 

bad faith conduct to defend himself in the sanction

proceeding. In short, our concern in Fellheimer was that the 

party in fact had the opportunity to mount a meaningful 

defense. When it became evident that under the 

circumstances he did, we determined that the notice had 

been adequate. 

In our discussion in Fellheimer, we distinguished Jones v.

Pittsburgh National Corp., 899 F.2d 1350 (3d Cir. 1990). In 

Jones, the party was not explicitly notified of the possibility 

of § 1927 sanctions, nor did the context or factual

background of the case suggest that he was charged with 

bad faith conduct. See id. at 1357. Because the party was 

not "on notice as to the particular factors that he must 

address if he is to avoid sanctions," notice was inadequate. 

See id.

Although in both Fellheimer and Jones we focused on 

notice as to the legal rule on which the sanctions were 

based, particularized notice must also be given as to the 

form of the contemplated sanction, as is illustrated in 

Gagliardi v. McWilliams, 834 F.2d 81 (3d Cir. 1987) (per 

curiam). In Gagliardi, the party moving for sanctions under 

Rule 11 sought attorney's fees, dismissal of the underlying 

claim, and other relief the court might deem appropriate. 

See id. at 83. The court granted the sanctions in the form

of an injunction. We explained that the general request for 

other appropriate relief did not put the party on notice that 

injunctive relief was possible. See id.8 Therefore, we vacated 

the award of sanctions and remanded so that the party 

_________________________________________________________________ 

8. We noted that the party against whom sanctions were imposed was 

proceeding pro se; however, we also noted that "[e]ven an experienced 

attorney would not have expected this type of injunctive sanction 

without some more specific notice." See Gagliardi, 834 F.2d at 83. 

 22 
could be notified of the possibility of an injunction and 

respond accordingly. See id.

In the present case, neither Cepeda, Romero, nor Torres 

received particularized notice that the court was 

contemplating suspending them from practicing law as a 

sanction. Although the court made clear the legal rules on 

which it would base sanctions and the reasons for the 

sanctions, the court limited its discussion of the form of the 

possible sanctions to monetary sanctions and dismissal of 

claims. See, e.g., Tutu II, 162 F.R.D. at 91. As far as we can 

tell, the possibility of suspension arose for the first time in 

the court's third and final published opinion on the matter, 

when the court actually imposed the suspensions. Neither 

did the parties moving for sanctions seek suspension; their 

papers before the district court sought only monetary 

sanctions and dismissal.9 

A number of parties have pointed to two judicial 

pronouncements that they contend should have put 

Cepeda, Romero, and Torres on at least constructive notice 

of the possibility of suspension. Even assuming that 

constructive notice would be sufficient, a doubtful

proposition, we find these pronouncements to be 

inadequate. First, the court did mention, in passing during 

an October 28, 1993, hearing, the possible "breach of the 

Canon of Ethics." The court did not elaborate nor did it ever 

again raise the "Canon of Ethics." This mention is simply 

too vague, inconclusive, and preliminary to put Cepeda, 

Romero, or Torres on notice of the possible sanction of 

suspension. 

Second, the court noted that it planned to utilize its 

inherent powers as a basis for sanctions. A number of 

parties submit that, because a court may employ its

inherent powers to suspend an attorney, Cepeda, Romero, 

and Torres should therefore have been on notice that the 

court was considering suspension. We are unpersuaded. As 

we discuss infra, a court's inherent powers put at its 

disposal a wide range of possible sanctions. Surely we 

cannot expect a party to defend against each and every one 

_________________________________________________________________ 

9. We are here relying on the assertions of Romero in his Brief of 

Appellant, and no party has asserted anything to the contrary. 

 23 
of these possible sanctions simply because a court signals 

its intention to rely on such powers. Rather, more 

particularized notice is required. In this respect, we rely 

upon Gagliardi, 834 F.2d at 83. Just as in Gagliardi, in 

which we held that a request for any remedy the court 

might deem appropriate was too general to put a party on 

notice that an injunction might issue, we hold that the 

mere mention of a court's inherent powers does not put a 

party on notice that suspension is a possible sanction. 

Knowing that they faced possible suspension as well as 

possible monetary sanctions would have been vitally

important to Cepeda, Romero, and Torres as they prepared 

for the sanctions proceedings. In addition to presenting 

legal and factual arguments pertaining to the particular 

conduct that gave rise to the sanctions proceedings and 

their individual culpability, the attorneys likely would have 

presented evidence concerning their professional careers, 

their contributions to the legal profession and the

community, their character, and the like. The proceedings 

would have followed a different path as the alleged

offenders led the court to consider a wider array of 

information. Put differently, had Cepeda, Romero, and 

Torres been on notice that they faced suspension, they 

doubtless would have utilized their opportunity to be heard 

to raise different matters. As it happened, because of the 

lack of notice, the attorneys' opportunity to be heard was 

less than meaningful; they were not given the appropriate 

opportunity to present relevant defenses to the penalties 

which they were ultimately assessed. 

We conclude that neither Cepeda, Romero, nor Torres

received the particularized notice to which they were 

entitled. Because their rights to due process were violated, 

we will vacate that portion of the order on appeal 

suspending them from practice in the District Court of the 

Virgin Islands.10 

_________________________________________________________________ 

10. Any suspension from practice, even in a jurisdiction in which an 

attorney does not regularly practice, would leave an indelible and 

deleterious imprint on the attorney's career, reputation, and future 

opportunities. Although we do not reach the question, we do express our 

doubt that, even on the record as developed, the extreme sanction of 

 24 
III. THE COMMUNITY SERVICE SANCTION 

A. Appellate Jurisdiction

As we discussed supra, part II, section A, although the 

order from which Esso and Goldman Antonetti appeal,

which imposes on them a monetary sanction payable to the 

Community Service Sanction Account, is not final for the 

purposes of § 1291, the order as to Goldman Antonetti is 

collaterally final under the Cohen doctrine, for the same 

reasons the appeal of Cepeda, Romero, and Torres was 

collaterally final. See supra part II, section A.11 However, the 

collateral order doctrine does not provide us jurisdiction 

over Esso's appeal. Esso remains a party in the underlying 

litigation and can therefore bring an effective appeal after 

final judgment. In other words, Esso does not fall within 

the ambit of Eavenson, Auchmuty, and its appeal fails the 

third prong of the Cohen test. However, as we shall explain, 

we have pendent appellate jurisdiction over Esso's appeal. 

The doctrine of pendent appellate jurisdiction, in its 

broadest formulation, allows an appellate court in its 

discretion to exercise jurisdiction over issues that are not 

independently appealable but that are intertwined with 

issues over which the appellate court properly and 

_________________________________________________________________ 

suspension from practice was justified for the individual actions (or 

inactions) of Cepeda, Romero, and Torres. It would unduly prolong an 

already lengthy opinion to detail our reasons for this doubt, predicated 

as it is on a large record. We do, however, note that we do not suggest 

that district judges should never use suspension as a sanction. We also 

do not reach the issue whether Cepeda's pro hac vice status, see supra

note 4, has any bearing on the ability of the court to suspend him. 

11. The only difference is whether the issue is important in the Cohen

sense. We have held that resolution of a serious and unsettled question 

of law satisfies the importance criterion of Cohen. See In re Ford, 110 

F.3d at 961. Here, Esso and Goldman Antonetti appeal the district 

court's use of its inherent powers to require them to fund a Community 

Service Sanction Account for the benefit of the Virgin Islands, a third 

party to the litigation. We are unaware of any appellate decision that 

addresses this question. And, without guidance, the novel approach 

adopted by the district court might be emulated. The appeal, therefore, 

implicates a serious and unsettled question. 

 25 
independently exercises its jurisdiction. See, e.g., 16 

Charles Alan Wright, Arthur R. Miller, & Edward H. Cooper, 

Federal Practice and Procedure § 3937, at 684-85 (2d ed. 

1996). We recognize the doctrine of pendent appellate 

jurisdiction and have on a number of occasions discussed 

its scope. See, e.g., Nat'l Union Fire Ins. Co. v. City Sav.

F.S.B., 28 F.3d 376, 382-83 & n.4 (3d Cir. 1994); Hoxworth

v. Blinder, Robinson & Co., 903 F.2d 186, 208-09 (3d Cir. 

1990); United States v. Spears, 859 F.2d 284, 287 (3d Cir. 

1988); Kershner v. Mazurkiewicz, 670 F.2d 440, 445-59 (3d 

Cir. 1982). 

We have held that the discretionary exercise of pendent 

appellate jurisdiction is appropriate when the issue over 

which we have jurisdiction cannot be resolved without 

reference to the otherwise nonappealable issue. See

Kershner, 670 F.2d at 449. In that sense, the exercise of 

pendent appellate jurisdiction ensures that our review of 

the independently appealable issue is meaningful. See Nat'l

Union Fire, 28 F.3d at 382. Unfortunately, our 

jurisprudence in this area is not systematic, and it is not 

clear how broadly the doctrine applies in our circuit. It 

does, however, apply here.12 

_________________________________________________________________ 

12. There are other matters that need mention with respect to our 

exercise of pendent appellate jurisdiction. The appeal in question here is 

pendent to a collaterally final order, rather than to an order the 

interlocutory appeal of which is permitted by statute. The Supreme 

Court has stated that pendent appellate jurisdiction in such cases and 

under certain circumstances is not permitted. See Swint v. Chambers

County Comm'n, ___ U.S. ___, 115 S. Ct. 1203, 1209-11 (1995); Abney v.

United States, 431 U.S. 651, 663 (1977). However, those cases deal with 

pendent issues, not pendent parties. And, at least in Swint, the Court 

made clear that its holding did not necessarily extend to circumstances 

in which the issues on appeal were "inextricably intertwined" or in which 

review of the otherwise nonappealable issue "was necessary to ensure 

meaningful review of the" independently appealable issue. Swint, 115 S. 

Ct. at 1212. In Spears, we employed the doctrine of pendent appellate 

jurisdiction in a case in which the independently appealable order was 

appealable only because of the collateral order doctrine. See Spears, 859 

F.2d at 286-88. We noted there that there was sufficient overlap in the 

facts relevant to the issues to allow us to exercise pendent appellate 

jurisdiction. See id. at 287-88. 

 26 
This case presents for our consideration two appeals 

raising the identical legal challenge, one appeal that is 

collaterally final (Goldman Antonetti's) and one that is not 

(Esso's). Should we decline to exercise jurisdiction over 

Esso's appeal, we would surely face the issue again, after 

final judgment, at which time our resolution of Goldman 

Antonetti's appeal -- either because of collateral estoppel, 

the doctrine of the law of the case, or our own precedent -- 

would govern the outcome. In other words, for all practical 

purposes, our resolution of Goldman Antonetti's appeal 

resolves Esso's appeal. It makes little practical sense, then, 

to dismiss Esso's appeal for lack of jurisdiction, and we 

shall not do so. See Spears, 859 F.2d at 288 ("In these 

circumstances, considerations of judicial economy, the 

litigant's interests, and practicality demand that we exercise 

jurisdiction over the [otherwise nonappealable] appeal."). 

As a final note on this subject, the use of the doctrine 

here would constitute pendent party appellate jurisdiction. 

See 16 Wright, Miller & Cooper, supra, § 3937, at 690-96. 

Pendent appellate jurisdiction has heretofore only been 

employed to allow our review of an otherwise nonappealable issue related to an appealable issue, both issues 

having been appealed by the same party. Here, we employ 

pendent appellate jurisdiction to allow our review of related 

issues that have been appealed by two different parties. 

However, the case for exercising pendent (party) appellate 

jurisdiction here is so compelling and the circumstances of 

this appeal so unusual that we do not extend the law by 

much in holding that pendent appellate jurisdiction applies. 

B. The Appropriateness of the Community

Service Sanction

As previously noted, the district court employed its 

inherent powers to sanction Esso and Goldman Antonetti. 

A threshold question, then, might be whether the court's 

resort to the inherent powers, in lieu of the rule-based and 

statute-based sanctions -- e.g., Fed. R. Civ. P. 11, 16, and 

37, or 28 U.S.C. § 1927 -- was appropriate.13 We need not 

_________________________________________________________________ 

13. In Chambers v. NASCO, Inc., 501 U.S. 32 (1991), the Supreme Court 

discussed at length the inherent powers of a court to sanction and their 

 27 
reach this question, however. As we shall discuss more 

fully below, the court had no authority under its inherent 

powers to impose the type of sanction it did. We are here 

reviewing a pure question of law; therefore, our standard of 

review is plenary. See Public Interest Research Group of New

Jersey, Inc. v. Windall, 51 F.3d 1179, 1184 (3d Cir. 1995) 

[hereinafter "PIRG"]. 

The permissible scope of inherent powers is somewhat 

unclear; we have earlier observed that "the notion of 

inherent power has been described as nebulous, and its 

bounds `shadowy.' " Eash v. Riggins Trucking Inc., 757 F.2d 

557, 561 (3d Cir. 1985) (en banc) (citation omitted). 

However, "courts under their inherent powers have 

developed a wide range of tools to promote efficiency in 

their courtrooms and to achieve justice in their results." Id.

at 564. The Supreme Court has furnished us with at least 

a partial list of a court's inherent powers. Employing its 

inherent powers, a court can control admission to its bar, 

discipline attorneys, punish for contempt, vacate its own 

judgment upon a finding of fraud, bar a criminal defendant 

from a courtroom for disruptive behavior, dismiss a suit on 

forum non conveniens grounds or for failure to prosecute, 

and assess attorney's fees. See Chambers v. NASCO, Inc., 

501 U.S. 32, 43-46 (1991). 

In addition to those mentioned by the Supreme Court, 

other inherent powers include the power to fine, to

disqualify counsel, to preclude claims or defenses, and to 

limit a litigant's future access to the courts. See Joseph, 

supra § 28, at 440-47; see also Republic of the Philippines

v. Westinghouse Elec. Corp., 43 F.3d 65, 73 n.10 (3d Cir. 

1994) (listing the inherent powers available to a court). 

With these many bows in their sanctioning quivers, courts 

_________________________________________________________________ 

relationship to rule-based and statute-based powers to sanction, e.g., 

Rule 11, Rule 16, Rule 37, and § 1927. To oversimplify somewhat, the 

Court held that the existence of rule-based or statute-based powers does 

not preclude a court's employing its inherent powers. See id. at 46-51. 

The Court observed, but apparently did not require, that normally a 

court should look first to those rule-based or statute-based powers 

before turning to its inherent powers, reserving the inherent powers for 

instances in which the rule-based or statute-based powers are not "up 

to the task." See id. at 50. 

 28 
have frequently invoked their inherent powers "to regulate 

the conduct of the members of the bar as well as to provide 

tools for docket management." Eash, 757 at 561. 

Notwithstanding the variety of tools available to a court 

under its inherent powers, we believe that an order

directing a party to the litigation to remit funds to a third 

party is outside the scope of a court's inherent powers. We 

begin our analysis by noting that "[b]ecause of their very 

potency, inherent powers must be exercised with restraint 

and discretion." Chambers, 501 U.S. at 44. That "inherent 

powers are shielded from direct democratic controls" makes 

this exercise of restraint and discretion even more

important. Roadway Express, Inc. v. Piper, 447 U.S. 752, 

764 (1980). 

"A primary aspect of that discretion is the ability to 

fashion an appropriate sanction for conduct which abuses 

the judicial process." Chambers, 501 U.S. at 44-45 

(emphasis added). Whether creation of the Community

Service Sanction Account before us here is appropriately 

within the scope of a court's inherent powers turns on the 

source of a court's inherent powers. The Supreme Court 

discussed the genesis and nature of inherent powers in 

Chambers. Inherent powers derive from the very nature of 

courts of justice. See id. at 42. Necessarily incident to the 

act of creating courts is the act of imbuing these 

institutions with certain indispensable powers to " `manage 

their own affairs so as to achieve the orderly and 

expeditious disposition of cases.' " Id. (quoting Link v.

Wabash R.R. Co., 370 U.S. 626, 630-31 (1962)). Inherent 

powers are sometimes described, in other words, as those 

"necessary to the exercise of all others." Id. (quoting United

States v. Hudson, 11 U.S. (7 Cranch) 32, 34 (1812)). In 

Eash, we described the source of inherent powers in 

slightly different words. We suggested that inherent powers 

fall into three distinct categories: powers arising from 

Article III, powers arising from the nature of the court, and 

powers arising from historical notions of the courts of 

equity. See Eash, 757 F.2d at 562-64.14 

_________________________________________________________________ 

14. Because Eash's categorization scheme was intended largely as a 

means of explaining the relationship between inherent judicial powers 

 29 
No matter where one places their origin, it is clear that 

the power exercised in this case cannot be derived from a 

court's inherent powers. The district court's actions are 

essentially legislative in nature. Although we recognize that 

the line between a judicial act and legislative act is difficult 

to fix with certainty, see, e.g., Mistretta v. United States, 

488 U.S. 361, 380-408 (1989); see also Clinton v. Jones, ___ 

U.S. ___, ___ S. Ct. ___, No. 95-1853, 1997 WL 273679, at 

*10 (U.S. Sup. Ct. May 27, 1997) ("Of course the lines 

between the powers of the three branches are not always 

neatly defined."), the district court's sanction here falls on 

the legislative side of whatever line we may draw. The court 

ordered the reallocation of resources from private entities to 

an agency of the public sector not a party in the case.15 It 

_________________________________________________________________ 

and legislatively granted judicial powers, and because it is not necessary 

to tackle the difficult question of that relationship, see supra n.12, we 

have no occasion to revisit this categorization here. See also Chambers, 

501 U.S. at 47 n.12 (describing Eash's categorization scheme and 

concluding that discussion of it is unnecessary). 

15. We have addressed a similar question in the criminal context. See,

e.g., United States v. John Scher Presents, Inc., 746 F.2d 959 (3d Cir. 

1984). In that case, we rejected a district court's conditioning probation 

on the donation of $100,000 to charity. We held that the power of the 

court to place a defendant on probation arose from the probation 

statute, not from inherent powers. See id. at 961. We further held that 

the probation statute did not give courts the power to condition 

probation on the donation of money to a charity. See id. at 963-64. This 

decision was consistent with the decisions of other circuits addressing 

the same issue. See, e.g., United States v. Missouri Valley Constr. Co., 

741 F.2d 1542, 1546-51 (8th Cir. 1984) (en banc); United States v.

Wright Contracting Co., 728 F.2d 648, 650-53 (4th Cir. 1984). 

Although decided on facts somewhat analogous to those presented 

here, these cases provide little guidance. They do not discuss the scope 

of a court's inherent powers except to note that the power to suspend a 

criminal sentence and impose probation is not a power inherent in the 

courts. Rather, the focus of these cases is on whether the statutory grant 

of power to impose probation allows the courts to condition probation on 

a payment of charity. Here, by contrast, we know that the power to 

sanction is inherent in the courts. We are thus concerned with the scope 

of inherent, not statutory, powers. Therefore, that a district court cannot 

condition probation on the payment of charity does not control whether 

a district court can require the payment of charity as a sanction. Put 

differently, the existence of a limit on a court's statutory powers does not 

necessarily mean that there is a corresponding limit on a court's 

inherent powers. 

 30 
chose from whom the resources would be taken and to

whom the resources would redound, without regard to the 

anatomy of the case before it. In so doing, the court 

ventured well beyond the case and controversy before it.16 

We do not find persuasive the argument that a court's 

inherent powers include the wielding of what is essentially 

a legislative power. We believe that it is not in the nature of 

courts of justice normally to engage in the redistribution of 

wealth to parties outside of the litigation. We find nothing 

in Article III that allows for such a power. Further, we do 

not believe that such a power is necessary for the efficient 

functioning of a court. Fines made payable to the court 

would do just as well in ensuring that parties do not 

interfere with that functioning. From the standpoint of the 

sanctioned party, the disciplining effect of a fine made 

payable to the court is no different from the disciplining 

effect of a sanction made payable to some third party; the 

sanctioned party is out of pocket the same amount either 

way. Finally, we have been directed to no historical 

evidence demonstrating that courts of equity had this 

power, and given that the inherent powers must be 

exercised with restraint, we see no reason to permit this 

power now. 

As our discussion makes clear, the court redistributed a 

portion of the wealth in the Virgin Islands, not from one 

party in the litigation to another, but from one party in the 

litigation to another party of the court's choosing. We 

acknowledge that this reallocation occurred under the aegis 

of a sanctions proceedings; however, we may not be 

_________________________________________________________________ 

16. In the context of administrative law, commentators have drawn the 

line between legislative and adjudicative functions by referring to the 

factual evidence on which the relevant government body relies in making 

its decision. See 2 Kenneth Culp Davis & Richard J. Pierce, Jr., 

Administrative Law Treatise § 9.2, at 7-8 (3d ed. 1994). "[L]egislative facts 

are the general facts that help a government institution decide questions 

of law, policy, and discretion." Id. These are facts that concern more 

than just an individual. See id. Here, the court had to rely on facts 

outside of those provided it by the parties to determine that the Virgin 

Islands prison system was an appropriate recipient of funding. In that 

sense, the court was searching for legislative facts. It was, in that same 

sense, engaging in a nonadjudicatory function. 

 31 
prevented from looking beyond mere labels to the 

underlying reality of the particular exercise of governmental 

power. See Mistretta, 488 U.S. at 393. The reality in this 

case involved the exercise of legislative power. 

We appreciate the sense of outrage that motivated the 

district court's decision to impose the community service 

sanction. The contamination of the Tutu aquifer was tragic, 

and the delay in determining responsibility for that 

contamination is doubtless frustrating. The community 

service sanction, at least on its face, is attractive because it 

seeks to punish those who have caused, at least in part, 

that delay and assist those who might have been harmed 

by the contamination. In that sense, the district court's 

actions were admirable. However, a court does not always 

do well by doing good. Though we applaud the district 

court's motives, we are constrained to find fault with its 

remedy.17 

In sum, we hold that the district court's inherent powers 

can not support the imposition of the community service 

sanction.18 

_________________________________________________________________ 

17. Our conclusion that the creation of the Community Service Sanction 

Account was beyond the powers of the district court is bolstered by our 

canvass of the law of our sister circuits. We are unaware of any court of 

appeals that has imposed this type of community service sanction. Nor 

do we find helpful the sources to which the district court cites for 

support of its proposed sanction. The district court could cite only to a 

law review article. See Brent Fisse, Reconstructing Corporate Criminal

Law: Deterrence, Retribution, Fault, and Sanctions , 56 S. Cal. L. Rev. 

1141 (1983). The article itself cited to two district court criminal cases 

in which, the article claimed, the courts imposed monetary sanctions 

directed to a community service project. See United States v. Olin Corp., 

Crim. No. 78-30, slip op. (D. Conn. June 1, 1978); United States v. Allied

Chem. Corp., 420 F. Supp. 122 (E.D. Va. 1976). We find no support in 

those cases for imposing such a sanction here. The opinions themselves 

do not discuss the sanctions at all, though the law review article claims 

that the monetary sanctions were imposed as conditions for probation or 

nonprosecution. We cannot say for certain because of the lack of 

discussion by each of the courts on the matter, but we suspect that the 

courts' actions would be impermissible under the (old) probation statute. 

See supra note 15. 

18. Moreover, we have serious doubts that one could plausibly argue 

that Congress provided the courts -- by statute or by rule -- the power 

 32 
IV. MONETARY SANCTIONS 

A. Appellate Jurisdiction

We have jurisdiction over Goldman Antonetti's appeal 

challenging the imposition of the monetary sanctions 

directed to the other parties in the litigation pursuant to 

Eavenson Auchmuty. See supra part II, section A; part III, 

section A.19 As for the appeals of the remaining parties, we 

believe that we have jurisdiction over these appeals under 

the pendent appellate jurisdiction doctrine.20 

As we discuss more fully infra part IV, section B, the 

remaining appeals (other than Goldman Antonetti's) 

contend that in imposing those sanctions the district court 

failed to account for the full extent of the harm caused by 

Esso's and Goldman Antonetti's discovery violations. These 

appeals are closely intertwined with Goldman Antonetti's 

appeal. The appropriate level of monetary sanctions for 

discovery abuse payable to a party in the litigation (the 

substance of the remaining parties' appeals) is, in part, 

dependent on the costs associated with the conduct giving 

_________________________________________________________________ 

to impose the type of sanction imposed here. In order to provide such 

power, we believe three criteria must be satisfied: (1) this must be a 

power that Congress can constitutionally delegate to a coordinate 

branch; (2) Congress must clearly indicate its intent to delegate this 

power; and (3) Congress must provide intelligible principles to guide the 

courts in the exercise of this power. None of these criteria is satisfied 

here." 

19. The substantive issues we will discuss here, see infra part IV, section 

B, are separate from the merits of the case. Therefore, there is no 

concern that the second prong of the Cohen test, which includes the 

requirement that the issue on appeal be separate from the merits of the 

underlying dispute, is not satisfied. The issues we discuss concern 

primarily the propriety of basing a sanction award on the costs 

associated with the sanctions proceedings themselves and the 

responsibility an aggrieved party has to detail for the court the harm a 

discovery violation caused him. Neither of these issues touches the 

merits of the underlying dispute. Further, because the circuit law on 

these subjects is somewhat unsettled, we believe that the substantive 

issues are important enough for immediate review. 

20. As we noted above, Esso does not appeal from that part of the order 

imposing monetary sanctions on it. 

 33 
rise to the sanctions (the substance of the Goldman

Antonetti appeal). We therefore cannot conclusively and 

finally determine whether the sanctions imposed on 

Goldman Antonetti are too harsh without also determining 

whether those same sanctions adequately accounted for the 

harm caused to the other parties. 

In exercising jurisdiction here, we are exercising 

jurisdiction over the appeals by the parties to whom Esso 

was directed to pay sanctions. Because Esso has not

appealed this aspect of the district court's order, the 

reasons for our use of pendent appellate jurisdiction are 

slightly different from the reasons for our use of that 

doctrine to review the appeals of the parties to whom 

Goldman Antonetti was directed to pay sanctions. First, the 

harm, if any, caused by Goldman Antonetti's discovery 

violations affected all of the parties, though to a varying 

degree; that some of those parties were to be paid by Esso 

rather than Goldman Antonetti had nothing to do with 

whether Esso or Goldman Antonetti had harmed them. Put 

differently, the question whether Goldman Antonetti's 

discovery violations caused harm affects all the parties to 

whom sanctions were directed. Therefore, for the same 

reasons that Goldman Antonetti's appeal and the appeals of 

the parties to whom Goldman Antonetti was directed to pay 

sanctions are closely intertwined, so too are the appeals of 

the parties to whom Esso was directed to pay sanctions 

closely intertwined with Goldman Antonetti's appeal. 

Second, we resolve these appeals, see infra part IV, 

section B, by reference to the same issue that governs the 

appeals of the parties to whom Goldman Antonetti was 

directed to pay sanctions, namely, the responsibility an 

aggrieved party has to specify for the court the harm 

caused by a discovery violation. Therefore, as with our 

review of the district court's use of inherent powers, see

supra part III, section A, practical realities strongly suggest 

that we exercise jurisdiction over all the appeals here. 

Otherwise, as above, we would surely face the issue again, 

after final judgment, at which time our resolution of the 

appeals of the parties to whom Goldman Antonetti was 

directed to pay sanctions -- either because of collateral 

estoppel, the doctrine of the law of the case, or our own 

 34 
precedent -- would govern the outcome as to the parties to 

whom Esso was directed to pay sanctions. 

In sum, our resolution of these appeals resolves the 

remaining appeals. It makes little practical sense to dismiss 

some of these appeals for lack of jurisdiction, hence we 

shall not do so. See Spears, 859 F.2d at 288 ("In these 

circumstances, considerations of judicial economy, the 

litigant's interests, and practicality demand that we exercise 

jurisdiction over the [otherwise nonappealable] appeal."). As 

in part III, section A, the case for exercising pendent (party) 

appellate jurisdiction here is so compelling and the 

circumstances of this appeal so unusual that we do not 

extend the law by much in holding that pendent appellate 

jurisdiction applies here. We therefore will review that part 

of the district court's order imposing monetary sanctions 

directed to parties to the litigation. 

B. Was the Monetary Sanction Appropriate? 21 

 

1. Introduction and Standard of Review 

Our review of the award of monetary sanctions must 

address dual concerns. First, we must examine the 

sanctions award from the standpoint of Goldman Antonetti, 

which contends that the district court erred in imposing 

sanctions at all. Second, the parties to whom the court 

awarded sanctions argue that the sanctions were 

inadequate to account for the full scope of the harm they 

suffered as a result of Esso's and Goldman Antonetti's 

discovery violations. 

The standard governing the district court's award of 

sanctions is a legal question subject to plenary review. See

PIRG, 51 F.3d at 1184; cf. Martin, 63 F.3d at 1262 

(subjecting a claim that a sanction proceeding violated due 

process requirements to plenary review). If a district court 

applies the proper legal standard, then the award of 

_________________________________________________________________ 

21. The analysis that follows in the text does not make a distinction 

between inherent powers sanctions and statute-based or rule-based 

sanctions. In respects relevant to our discussion, the sanctioning tools 

are the same. 

 35 
sanctions, including the extent of those sanctions, is within 

the discretion of the district court. See PIRG , 51 F.3d at 

1184; see also Chambers, 501 U.S. at 55 ("We review a 

court's imposition of sanctions under its inherent powers 

for abuse of discretion."). "An abuse of discretion is a `clear 

error of judgment,' and not simply a different result which 

can arguably be obtained when applying the law to the 

facts of the case." United Telegraph Workers, AFL-CIO v.

Western Union Corp., 771 F.2d 699, 703 (3d Cir. 1985) 

(quoting Citizens to Preserve Overton Park, Inc. v. Volpe, 401 

U.S. 402, 416 (1971)). To determine whether a district court 

abused its discretion, "we evaluate the court's factual 

determinations, legal conclusions, and choice of an

`appropriate sanction' with substantial deference, 

considering not whether we would make the same precise 

determinations, but only whether those determinations are 

contrary to reason or without a reasonable basis in law and 

fact." Simmerman, 27 F.3d at 62. 

2. Did the District Court Abuse its Discretion in 

Sanctioning Goldman Antonetti? 

Goldman Antonetti submits that the district court made 

a number of factual and legal errors serious enough to 

warrant our reversing its decision to impose sanctions. 

First, the firm argues that costs and expenses associated 

with the sanctions hearings themselves are not recoverable 

as sanctions. Next, it contends that the district court failed 

to identify the individual acts for which it is liable for 

sanctions. Even assuming that there were individual acts 

that might be sanctionable, Goldman Antonetti further 

contends that such acts caused the moving parties no 

prejudice. At all events, it concludes, the parties seeking 

sanctions had already released the firm from liability. 

a. Can Sanctions be Based on the Costs of 

Sanctioning Proceedings? 

Goldman Antonetti argues that the district court 

impermissibly awarded sanctions based on the costs and 

expenses arising from the sanctions proceedings 

themselves. In the firm's submission, such an award

 36 
constitutes improper fee shifting. We disagree. It is beyond 

dispute that attorney's fees are, in certain circumstances, 

properly awarded as a sanction. We are unaware of 

precedent in this circuit that categorically excludes from 

such an award attorney's fees arising from the sanctions 

proceedings themselves (though, as we discuss below, there 

is precedent in other circuits that bears on this issue).22 

Nor do we believe such a categorical exclusion is wise. The 

time, effort, and resources expended in bringing 

sanctionable conduct to light would have been unnecessary 

had the sanctionable conduct never occurred. These costs 

are as much a harm to a party in the litigation as is the 

delay in the litigation or the substantive prejudice caused 

by the conduct. If we exclude from a possible award the 

costs of sanctions proceedings, we would undermine the 

compensatory goal of a sanctions award. 

Further, if a party is aware ex ante that the costs he 

incurs in exposing sanctionable conduct will never be 

recouped, that party may decide to forgo a sanctions 

proceeding altogether. In doing so, however, that party 

might allow otherwise sanctionable conduct to go 

unaddressed. In such cases, the deterrent goal of a

sanction award has been lost; parties who know that the 

likelihood of facing a sanction proceeding are low may 

engage in sanctionable conduct more often. Therefore, we 

believe a district court, in the exercise of its discretion, may 

award attorney's fees arising from sanctions proceedings. 

We are aware of precedent in other circuits that has 

disallowed such awards in the Rule 11 context. See, e.g., 

Zimmerman v. Bishop Estate, 25 F.3d 784, 790 (9th Cir. 

_________________________________________________________________ 

22. In Chambers, in which the Supreme Court affirmed in all respects 

the award of sanctions in the case, see Chambers, 501 U.S. at 55-58, 

the district court employed its inherent powers to award sanctions based 

in part on the costs associated with the sanctions proceedings 

themselves. See NASCO, Inc. v. Calcasieu Television & Radio, Inc., 124 

F.R.D. 120, 143 (W.D. La. 1989), aff'd, 894 F.2d 696 (5th Cir. 1990), 

aff'd sub nom., Chambers v. NASCO, Inc., 501 U.S. 32 (1991). Although 

the Supreme Court did not directly address the precise issue we address 

here, and there is no indication that the parties raised it, the Court at 

least implicitly approved of a sanction award based on the costs 

associated with the sanctions proceedings themselves. 

 37 
1994); Pan-Pacific and Low Ball Cable Television Co. v.

Pacific Union Co., 987 F.2d 594, 597 (9th Cir. 1993); 

Lockary v. Kayfetz, 974 F.2d 1166, 1177-78 (9th Cir. 1992); 

Brubaker v. City of Richmond, 943 F.2d 1363, 1387 (4th 

Cir. 1991); Blue v. United States Dept. of the Army, 914 

F.2d 525, 548-49 (4th Cir. 1990).23 However, better

reasoned precedent in still other circuits supports our view 

that the costs associated with the sanctions proceedings 

themselves can be recoverable. See, e.g., Kirk Capital Corp.

v. Bailey, 16 F.3d 1485, 1491 (8th Cir. 1994); Silva v.

Witschen, 19 F.3d 725, 733 n.15 (1st Cir. 1994); Brandt v.

Schal Assocs., Inc., 960 F.2d 640, 649-51 (7th Cir. 1992); 

In re Stauffer Seeds, Inc., 817 F.2d 47, 50 (8th Cir. 1987) 

(Rule 37). 

In addition, in 1993, Rule 11 was amended to add 

language that would allow sanctions for the costs 

associated with presenting or opposing a motion for Rule 

11 sanctions. See Joseph, supra, § 16(B)(17), at 278. The 

_________________________________________________________________ 

23. A number of these cases take guidance from Cooter & Gell v.

Hartmarx Corp., 496 U.S. 384 (1990), in which the Supreme Court held 

that Rule 11 does not allow the recovery of the costs associated with 

defending a sanction award on appeal. See id. at 406-09. We believe that 

reliance on Cooter & Gell to hold that Rule 11 does not allow recovery of 

the costs associated with the sanctions proceedings themselves is 

misplaced. The Court in Cooter & Gell was moved by a number of 

context-based factors. First, the Court noted that Rule 11 does not apply 

to appeals, and that applying Rule 11 to appeals would upset the 

scheme, contained in the Federal Rules of Appellate Procedure, for 

sanctioning frivolous appeals. See id. at 406, 408. Allowing a Rule 11 

award based on the sanctions proceedings themselves, would not, 

however, implicate the Rules of Appellate Procedure at all because such 

proceedings inhere in the district court. Further, borrowing from the 

proximate cause theories of tort law, the Court noted that costs on 

appeal were a result of the sanction itself and the appeal, not a result of 

the improper filing. See id. at 406-07. The costs of the sanctions 

proceedings, however, are more properly characterized as the result of 

the improper filing. Finally, the Court feared that allowing recovery of the 

costs of appeal would discourage sanctioned parties from pursuing 

meritorious appeals. See id. at 407. Allowing recovery of the costs 

associated with the sanctions proceedings has no effect on the pursuit 

of meritorious appeals and, as we note in the text, allowing such 

recovery might encourage parties to bring sanctionable conduct to light. 

 38 
language in Rule 11 now states that "the court may award 

to the party prevailing on the motion the reasonable 

expenses and attorney's fees incurred in presenting or 

opposing the motion." Fed. R. Civ. P. 11(c)(1)(A). That 

amendment seems to have effectively overruled cases that 

held that it is an abuse of discretion to award sanctions 

based on the costs of sanctions proceedings.24 

b. Actions Giving Rise to Sanctions Against 

Goldman Antonetti 

Goldman Antonetti is correct in pointing out that the 

district court did not identify with specificity many of the 

acts that caused it to infer that Esso and Goldman 

Antonetti were engaged in a pattern of delay. The court did, 

however, make extensive findings as to the Agrelot 

memorandum and the anomaly investigation. With respect 

to both of those matters, the district court's findings were 

not unreasonable. The undisputed fact is that the Agrelot 

memorandum did not surface until well after discovery had 

begun and until well after parties to the litigation had made 

repeated requests that clearly covered the document. 

Goldman Antonetti advances a plausible explanation for 

why the Agrelot memorandum was produced so late in the 

litigation. It is certainly possible that no attorney from 

Goldman Antonetti knew of the Agrelot memorandum until 

it was found in October 1993, notwithstanding testimony to 

the contrary; it is equally possible that the Agrelot 

memorandum was misfiled by both Soil Tech and by 

Goldman Antonetti. That is not to say, however, that the 

court's findings, which are based on an inference that 

Goldman Antonetti intentionally withheld the Agrelot 

memorandum, are unreasonable. There is evidence in the 

record that Goldman Antonetti attorneys knew of the

memorandum's existence. Those same attorneys responded 

to the discovery requests covering such memorandum, and 

yet the document was not produced. 

_________________________________________________________________ 

24. We are aware of only one case decided after the 1993 amendment to 

Rule 11 that disallowed such an award; however, the opinion did not cite 

the amendment and uncritically applied prior circuit precedent. See

Zimmerman, 25 F.3d at 790 (citing Lockary). 

 39 
With respect to the anomaly investigation, our analysis is 

similar. Goldman Antonetti relies on a report by a 

magistrate judge concluding that the firm's actions during 

the investigation amounted to nothing more than zealous 

advocacy in representation of its clients and therefore did 

not warrant sanctions. The firm submits that the district 

court had no basis to disagree with the magistrate judge's 

conclusions. However, the district court in that instance did 

not owe the magistrate judge any deference. Further, the 

undisputed evidence makes it clear that it was not 

unreasonable for the district court to conclude that the 

delays in the investigation were willful and in bad faith. The 

investigation began late, was aborted prematurely because 

of the failure of the parties to arrive with appropriate 

equipment, and was not completed for many months. 

Goldman Antonetti's next argument -- that the failure to 

produce the Agrelot memorandum caused no harm to the 

other parties in the litigation -- suffers the same fate. The 

firm here stresses that it produced the entire ETC report, of 

which the Agrelot memorandum was merely a summary. If, 

Goldman Antonetti questions, a full report has been

produced, how can the failure to produce a summary of the 

report cause any harm to a party that can easily 

summarize the report for itself? The firm has a good point, 

but it does not mean that the district court's conclusion 

was contrary to reason. The ETC report was both complex 

and voluminous. Examining it required significant costs. A 

summary prepared by an expert would have reduced these 

costs and identified the problems that could only have been 

discovered by imposing a considerable burden on those 

examining the report for the first time. We concede, as did 

the district court, that the summary, timely produced, 

might have provided the parties to the litigation with less 

assistance than they claim. Still, it would have provided 

assistance, and that is the crux of the harm caused by the 

failure of Esso and Goldman Antonetti to produce the 

Agrelot memorandum. 

c. Was Goldman Antonetti Released from Sanctions? 

Goldman Antonetti also argues that three of the parties 

seeking sanctions from it -- Four Winds, Laga, and Western 

 40 
Auto Supply -- have already released the firm from liability. 

Goldman Antonetti bases this argument on the settlement 

agreement reached between Esso and these parties in

which the parties settled the underlying litigation and 

released Esso and "their . . . attorneys" from liability. 

Because Goldman Antonetti served as Esso's attorneys, it 

follows, Goldman Antonetti reasons, that the settlement 

agreement eliminates the possibility that these parties can 

collect a sanctions award from Goldman Antonetti. The 

district court disagreed. "Because the interpretation of 

contractual language to discern contractual intent is a 

question of fact, our review is limited to a determination 

whether the district court's findings are clearly erroneous." 

Painewebber Inc. v. Hartmann, 921 F.2d 507, 510 (3d Cir. 

1990). 

The issue, then, is whether the parties intended the term 

"attorneys" in the settlement agreement to refer only to 

counsel representing Esso at the time of the signing of the 

agreement, or also to refer to counsel who had represented 

Esso previously. The district court held that the release -- 

a contract -- does not cover Goldman Antonetti for two 

reasons. First, by the time the settlement agreement came 

into force, Esso had already severed its relationship with 

Goldman Antonetti. Because the term "attorneys" plainly 

refers only to counsel representing Esso at the time of the 

settlement agreement, the term must not encompass 

Goldman Antonetti. Second, even assuming that the 

examination of extrinsic evidence is appropriate here either 

to explain the term "attorneys" or to show that the parties 

attached some special meaning to "attorneys," there is no 

extrinsic evidence that the parties to the settlement 

intended it to cover Goldman Antonetti. Goldman Antonetti 

offers and our review of the record suggests nothing-- save 

the language of the settlement agreement, which does not, 

by its terms, cover Goldman Antonetti -- that would lead 

us to conclude that the district court's findings were clearly 

erroneous under any legal standard governing 

interpretation of a contractual term. 

In sum, we are satisfied that the district court did not 

abuse its discretion in concluding that Goldman Antonetti 

is subject to some form of sanction and that $120,000 was 

an appropriate sanction. 

 41 
3. The Process of Determining the Extent of Harm 

Caused by Discovery Violations 

The movants appeal the measure of the sanctions the

court awarded to them. They argue that the process the 

court undertook to determine the extent of the harm

caused by the sanctionable conduct was in error, first 

because the district court ruled that their submissions 

detailing their harm were inadequate, and second because 

the district court awarded a uniform level of sanction based 

on the submission of one party. It would be useful, then, to 

begin by briefly describing that process. 

Having held that the discovery violations caused harm, 

the court examined the papers these parties submitted that 

purported to describe the extent of that harm. The court 

believed that the papers "suffer[ed] from two shortcomings." 

Tutu III, 166 F.R.D. at 342. First, the papers did not 

adequately categorize the claimed harm within the 

framework the court had created for addressing the 

sanctionable conduct. The court found it difficult to 

determine whether the moving parties were seeking costs 

and expenses from (1) discovery violations related to the 

search for evidence of contamination at ETSS; (2) the 

failure to disclose the Agrelot memo; or (3) the sanctions 

proceedings themselves, the three broad areas into which 

the court held sanctionable conduct fell. Second, the court 

faulted the parties for their general failure to provide it with 

documentation "that adequately and efficiently explained to 

the court how those expenses could be justified as a 

sanction." Id.

These shortcomings led the court to award only a portion 

of the sanctions sought. The court declined to scrutinize 

the voluminous submissions of the parties in order to 

perform the categorization it had requested the parties to 

perform. Instead, the court simply denied the award of 

sanctions arising from (1) discovery violations related to the 

search for evidence of contamination at ETSS; and (2) the 

failure to disclose the Agrelot memo. The court did, 

however, award sanctions arising from the sanctions

proceedings themselves. The court set a uniform level of 

sanction award based on L'Henri's request. The court did so 

 42 
because it believed that L'Henri's request was clear, well 

supported, and, in all, "unassailable." 

a. The Failure of the Submission 

We believe that the district court was well within its 

discretion to deny the requested sanctions based upon the 

parties' submissions. Our independent review of the

submissions generally confirms the district court's view 

that they are less than helpful. The submissions are 

voluminous, are not well organized, and, at bottom, are 

unclear. It would take an enormous effort to impress upon 

them the order necessary for a reasoned decision, including 

the making of a reasoned judgment as to the validity of the 

requests contained therein. Although we suspect that, had 

the district court chosen to undertake such an effort, the 

material submitted might ultimately have supported the 

award of additional sanctions, we do not believe that it was 

unreasonable or a clear error of judgment for the district 

court to refuse such a huge task. 

Engaging the submissions on their own terms would 

cause great delays in a complex case already delayed by 

discovery violations and already taxing judicial resources. 

In short, the district court exercised its discretion in such 

a manner so as to prevent "a second major litigation." 

Hensley v. Eckerhart, 461 U.S. 424, 437 (1983) (discussing 

a request for attorney's fees in civil rights litigation). We do 

not believe that by doing so the district court abused its 

discretion. 

Instructive in this regard are cases addressing requests 

for attorney's fees under civil rights or other similar 

statutes that allow for fee shifting in certain circumstances. 

These cases make clear that the applicant for fees has an 

affirmative responsibility to assist the court in sorting 

through, organizing, and evaluating a fee request. The 

Supreme Court has stated that in such cases the "fee 

applicant bears the burden of establishing entitlement to 

an award and documenting the appropriate hours expended 

and hourly rates." Id. In submitting an application, the 

applicant must exercise "billing judgment" by making a 

"good-faith effort to exclude from a fee request hours that 

 43 
are excessive, redundant, or otherwise unnecessary." Id. at 

434. As we stated in Hall v. Borough of Roselle, 747 F.2d 

838 (3d Cir. 1984), "members of the bar are quasi-officers 

of the court and they are expected to be careful . .. in their 

representations to the court." Id. at 841-42. Busy district 

judges cannot be expected to do lawyers' work. 

In sum, as with requests for attorney's fees, in assessing 

the harm discovery violations may have caused to litigants, 

district courts deserve the conscientious assistance of 

lawyers. Although a court is free to do so, it is not 

incumbent upon a district court to devote its own valuable 

time, energy, and resources to remedy the shortcomings of 

movants' submissions if that assistance falls short. Nor will 

we require the court to do so here. We thus do not believe 

the district court abused its discretion in refusing to award 

sanctions based on the submissions of the movants. 

b. Basing the Sanctions on L'Henri's Request 

We also believe that the district court was within its 

discretion to award each party a uniform level of sanction 

to compensate the parties for their participation in the 

sanctions proceedings, and to base that uniform level on 

the submission of L'Henri. The decision to impose a

uniform level of sanction suggests that the court believed 

that the amount of effort appropriately expended in

preparing for and participating in the sanctions proceedings 

was uniform across the various parties. Such a belief was 

not unreasonable here since the parties were similarly 

situated. 

According to the court, L'Henri's counsel, Nancy D'Anna, 

submitted well-reasoned, thoroughly researched, and

adequately documented material to the court throughout 

the sanctions proceedings. What is more, the court 

continued, L'Henri produced such material efficiently and 

relatively cheaply. In deciding to base the uniform level of 

sanction on L'Henri's request, the district court implicitly 

found that each party could have produced similarly wellreasoned, thorough, and adequately documented material 

for no greater cost than that incurred by L'Henri. We 

believe that it is not an abuse of discretion for the district 

 44 
court to assume that all parties can produce work of 

L'Henri's quality for approximately the same cost. 

In sum, we believe the district court acted within its 

discretion in awarding only a portion of the monetary 

sanctions sought by the moving parties. 

V. CLAIMS FOR CERCLA CONTRIBUTION 

Unfortunately, we have no appellate jurisdiction over that 

portion of the district court's order rejecting the motion to 

dismiss Esso's claims for CERCLA contribution as a 

sanction under Poulis v. State Farm Fire and Casualty Co., 

747 F.2d 863 (3d Cir. 1984). Poulis sets out a six-factor 

balancing test to guide a court's analysis as to whether to 

dismiss a claim as a sanction. See id. at 868. One of those 

factors requires that we examine the "meritoriousness of the 

claim or defense." Id. (emphasis in original). However, the 

CERCLA claims have never been filed, though they 

undoubtedly will be. The district court, in an effort to stem 

the voluminous paper flow, has apparently asked counsel 

to withhold moving forward on the CERCLA claims until a 

more propitious point in the litigation. Therefore, under the 

current posture of the case we would be hard pressed to 

find some means to review contentions with respect to 

these claims. 

If this problem did not exist, the parties might argue that 

we have jurisdiction over the Poulis claim under the 

collateral order doctrine as set forth in Cohen.25 However, 

the Cohen test would allow us to exercise jurisdiction only 

if, inter alia, our review would not require us to examine 

the merits of the underlying litigation that remains to be 

adjudicated. To review the Poulis claim, we would need to 

do just that because Poulis requires us to examine the 

merits of the underlying CERCLA litigation. 

Additionally, the Cohen test does not allow our exercise of 

appellate jurisdiction over a non-final order if the order can 

be appealed effectively after final judgment. Here, there can 

be little dispute that the parties can appeal the Poulis claim 

_________________________________________________________________ 

25. As we explain supra section II, part A, the district court's order is not 

final for appellate jurisdiction purposes. 

 45 
after final judgment, by which time the claim will likely be 

better defined. We therefore have no jurisdiction over that 

part of the district court's order denying the motion to 

dismiss Esso's claim for contribution as a sanction, and 

will dismiss the appeals challenging that part of the order. 

VI. CONCLUSION 

The order of the district court will be affirmed insofar as 

it imposes a $120,000 sanction on Goldman Antonetti and 

insofar as it rejects the claims for additional sanctions 

against Esso and Goldman Antonetti, but will be reversed 

insofar as it orders the suspension of Cepeda, Romero, and 

Torres and insofar as it requires Esso and Goldman 

Antonetti to fund a Community Service Sanction Account. 

The appeals relating to the refusal of the district court to 

dismiss Esso's claims for contribution will be dismissed. 

A True Copy: 

Teste: 

Clerk of the United States Court of Appeals

for the Third Circuit

 46