UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MELINDA BEVERLY; SCHIFF AND 

SHELTON, Attorneys at Law, 

Respondents-Appellants, 

 v. 

INTERIOR ELECTRIC INCORPORATED 

NEVADA, 

Movant-Appellee.

No. 21-55645 

D.C. No. 

5:20-mc-00024-JGB-SP 

Central District of California, 

Riverside 

ORDER

Before: BERZON, R. NELSON, and BADE, Circuit Judges.

Appellee Interior Electric’s motion to clarify the disposition, Dkt. 49, is 

GRANTED. Concurrent with this order, the panel will file an amended 

memorandum disposition reflecting that the appeal was dismissed as to Appellant 

Beverly, and the district court’s order was reversed and vacated as to Appellant 

Schiff & Shelton.

FILED

JAN 23 2023

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MELINDA BEVERLY; SCHIFF AND 

SHELTON, Attorneys at Law, 

Respondents-Appellants, 

 v. 

INTERIOR ELECTRIC INCORPORATED 

NEVADA, 

Movant-Appellee.

No. 21-55645 

D.C. No. 

5:20-mc-00024-JGB-SP 

AMENDED MEMORANDUM*

Appeal from the United States District Court

for the Central District of California

Sheri Pym, Magistrate Judge, Presiding

Submitted December 7, 2022**

Pasadena, California

Before: BERZON, R. NELSON, and BADE, Circuit Judges.

This matter arises out of a commercial dispute filed in the District of 

Nevada. See Interior Elec. Inc., Nev. v. T.W.C. Constr., Inc., Dkt. 1, No. 18-1118 

(D. Nev. June 2, 2018). In that case, Interior Electric Inc. (“Interior”) served non-

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

** The panel unanimously concludes this case is suitable for decision 

without oral argument. See Fed. R. App. P. 34(a)(2).

FILED

JAN 23 2023

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 

parties Melinda Beverly (“Beverly”) and the law firm Schiff & Shelton (“S&S”) 

with subpoenas duces tecum.1Interior eventually filed, in the Central District of 

California, a motion to compel production of documents under Rule 45 of the 

Federal Rules of Civil Procedure and for attorney’s fees incurred in bringing the 

motion. The district court granted the motion to compel, and cited Rule 45 in that 

order. A few months later, the district court granted Interior’s request for 

attorney’s fees, but the court cited Rule 37(b)(2)(C) in that order. The district 

court, however, did not find the non-parties in contempt, either in the order 

granting the motion to compel or in the later order granting Interior’s request for 

attorney’s fees.

On appeal, S&S contends that the district court improperly awarded 

sanctions for failure to comply with the subpoenas without making a finding of 

contempt or affording S&S an opportunity to be heard.

2

 We have jurisdiction 

under 28 U.S.C. § 1291. Telluride Mgmt. Sols., Inc. v. Telluride Inv. Grp., 55 F.3d 

1 Because the parties are familiar with the facts, we do not discuss them at 

length.

2 We decline to apply waiver to preclude S&S from making its arguments on 

appeal. We “may consider issues not presented to the district court, although we 

are not required to do so.” In re Mercury Interactive Corp. Sec. Litig., 618 F.3d 

988, 992 (9th Cir. 2010). Relevantly, the court may consider a previously unraised 

issue when it presents a pure issue of law, and the record has been fully developed. 

Id. Here, the district court’s interpretation and application of the Federal Rules of 

Civil Procedure is a pure question of law. Beckman Indus., Inc. v. Int’l Ins. Co., 

966 F.2d 470, 472 (9th Cir. 1992).
3 

463, 465 (9th Cir. 1995), abrogated on other grounds by Cunningham v. Hamilton 

County, 527 U.S. 198 (1999) (“An order compelling a nonparty to pay attorney’s 

fees and costs is a final order reviewable under 28 U.S.C. § 1291.”). We review de 

novo the district court’s interpretation and application of the Federal Rules of Civil 

Procedure. Oja v. U.S. Army Corps of Engineers, 440 F.3d 1122, 1127 (9th Cir. 

2006). We reverse and vacate the order awarding attorney’s fees.

1. The district court cited Rule 45 as the basis for granting Interior’s 

motion to compel the non-parties’ compliance with the subpoenas, but

inexplicably, and without a finding of contempt, the court relied on

Rule 37(b)(2)(C) in its order granting Interior’s request for attorneys’ fees. 

Because Rule 45 provides the only basis to sanction non-parties for failing to 

comply with a subpoena duces tecum, the district court erred by relying on Rule 

37(b)(2)(C) to order the non-parties to pay Interior’s attorney’s fees.

Generally, a district court has inherent power to enforce compliance with its 

lawful orders through civil contempt sanctions, including attorney’s fees. See, e.g.,

Shillitani v. United States, 384 U.S. 364, 370–71 (1966). But “[t]he only authority 

in the Federal Rules of Civil Procedure for the imposition of sanctions against a 

nonparty for failure to comply with a subpoena duces tecum is Rule 45.” Pennwalt 

Corp. v. Durand-Wayland, Inc., 708 F.2d 492, 494 (9th Cir. 1983). Rule 45, in 

turn, provides that the court may hold a non-party in contempt for failure to obey a 
4 

subpoena or a subpoena-related order, Fed. R. Civ. P. 45(g), but it does not 

independently provide for the award of attorneys’ fees as a sanction.

In contrast, Rule 37(b)(2)(C), by its terms, only applies to parties. Fed. R. 

Civ. P. 37(b)(2)(C) (explaining that if a party fails to comply with discovery 

orders, in addition to other orders, “the court must order the disobedient party, the 

attorney advising that party, or both to pay the reasonable expenses, including 

attorney’s fees, caused by the failure, unless the failure was substantially justified 

or other circumstances make an award of expenses unjust”); see also 7 Moore’s 

Federal Practice § 37.40 (3d ed. 1997)) (“[O]nly Rule 37(b)(1), governing a 

deponent’s failure to be sworn or to answer a question after being directed to do so 

by the court, applies to nonparties. Rule 37(b)(2), governing all other failures to 

obey discovery orders, does not apply to nonparties.”).

Sanctions were therefore only available against the non-parties under Rule 

45, after a contempt finding and notice and an opportunity to be heard.3 See, e.g., 

In re Plise, 506 B.R. 870, 878–79 (B.A.P. 9th Cir. 2014) (concluding that a finding 

of contempt must precede a sanctions order); Fed. R. Civ. P. 45, Advisory 

Committee Notes, 2013 Amendment, Subdivision (g) (“[I]t would be rare for a 

3

Interior emphasizes that the “bases for [its] request for fees were clearly 

not [Rule] 37,” and that its motion explicitly cited and relied upon Rule 45. Thus, 

Interior acknowledges that Rule 37 was not the proper basis for the district court’s 

order, which in effect sanctioned the non-parties for failing to comply with a 

subpoena.
5 

court to use contempt sanctions without first ordering compliance with a subpoena, 

and the order might not require all the compliance sought by the subpoena. Often 

contempt proceedings will be initiated by an order to show cause, and an order to 

comply or be held in contempt may modify the subpoena’s command. 

Disobedience of such an order may be treated as contempt.”).

2. Interior argues that “the district court’s citation to [Rule] 37, rather 

than to [Rule] 45, constitutes a harmless error because the fee award was 

inevitable,” and because the non-parties were not entitled to a hearing. We 

disagree. The district court’s erroneous citation to Rule 37 and its failure to follow 

the procedures of Rule 45 were not harmless errors. Although a court may enter a 

finding of civil contempt without the benefit of “a full-blown evidentiary hearing,”

United States v. Ayres, 166 F.3d 991, 995 (9th Cir. 1999), the district court here did 

not (1) order contempt briefing or hold a show cause hearing at which the nonparties could have explained any inability to comply with the order granting the 

motion to compel, or (2) find the non-parties in contempt in its order awarding 

attorney’s fees, or at any other point. Cf. Peterson v. Highland Music, Inc., 140 

F.3d 1313, 1324 (9th Cir. 1998). Thus, the district court did not provide the nonparties with sufficient notice and an opportunity to be heard before ordering them 

to pay attorney’s fees as a sanction for their failure to comply with the subpoenas.

Moreover, it is not clear from the record that the non-parties, in fact, failed 
6 

to comply with the subpoenas or had an obligation to produce documents they did 

not possess. The district court acknowledged that S&S may not have possessed the 

requested documents and directed S&S to file a responsive declaration clarifying 

whether the documents were produced. In response, S&S filed a declaration, 

explaining that “[t]his firm has provided all documents in its possession, custody 

and control that may be responsive to the subject subpoena,” that the other 

documents sought were not in S&S’s possession, and that Interior might obtain 

additional responsive documents directly from the persons who possessed them. 

But the district court did not provide notice to the non-parties that this explanation 

was insufficient, issue an order to show cause, or hold a hearing to develop more 

information about the non-parties’ compliance. Thus, the district court’s error in 

applying Rule 37(b)(2)(C) to award attorney’s fees against the non-parties was not

harmless.

3. Finally, under Ninth Circuit Rule 42-1, this court may dismiss an 

appellant who fails to timely file a brief. Because Beverly did not file an opening 

brief, her appeal is dismissed for failure to prosecute. See Blixseth v. Credit Suisse, 

961 F.3d 1074, 1080 (9th Cir. 2020) (“We routinely dismiss cases pursuant to Rule 

42-1 when an appellant fails to file an opening brief.”).

APPEAL DISMISSED as to Beverly, REVERSED AND VACATED as 

to S&S.