IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 17-30134

ELADIO CRUZ, Individually and on Behalf of his Minor Child,

 Plaintiff

v.

TRACY FULTON, 

 Defendant - Appellee

v.

LOUIS R. KOERNER, 

 Movant - Appellant

Appeal from the United States District Court

for the Eastern District of Louisiana

USDC No. 2:14-CV-2015

Before STEWART, Chief Judge, and JOLLY and OWEN, Circuit Judges.

PER CURIAM:*

In a contempt order against counsel in the underlying litigation, the

district court ordered Louis R. Koerner, plaintiff’s lead counsel, “to pay all of 

 

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not 

be published and is not precedent except under the limited circumstances set forth in 5TH 

CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

January 4, 2018

Lyle W. Cayce

Clerk

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the fees, costs, and expenses incurred by the defendant, Tracy Fulton, from 

September 3, 2014 up to September 28, 2016,” holding him in “in civil contempt 

of Court, in violation of 28 U.S.C. § 1927 and Rule 11 of Federal Rules of Civil 

Procedure.” The district court then administratively closed the case until 

Koerner complied. Koerner seeks appellate review of that order. Koerner is 

unhappy that the district court retired his case to the administrative files until 

he satisfies the monetary fees imposed on him, and he urges us to assert 

appellate jurisdiction over the contempt order and reverse the district court. 

On the other hand, Tracy Fulton, the defendant, is quite content to leave 

matters as they stand and consequently urges that we have no appellate 

jurisdiction to review the non-final order. Because the district court did not 

quantify the sanction to a sum certain, we hold that we do not have appellate 

jurisdiction over this particular order of contempt and thus dismiss this appeal. 

I.

In determining appellate jurisdiction to review this contempt order, we 

begin with the premise that this court has jurisdiction to review final decisions

of the district court under 28 U.S.C. § 1291. Askanase v. Livingwell, Inc., 981 

F.2d 807, 809 (5th Cir. 1993). Furthermore, a civil-contempt order against a 

party is not a final order and is not immediately appealable, Fox v. Capital Co., 

299 U.S. 105, 107–08 (1936), but “[t]he right of a nonparty to appeal an 

adjudication of contempt cannot be questioned” under § 1291, U.S. Catholic 

Conference v. Abortion Rights Mobilization, Inc., 487 U.S. 72, 76 (1988)

(emphasis added).1 “On the other hand, an adjudication of criminal contempt 

 

1 See also Port Drum Co. v. Umphrey, 852 F.2d 148, 150 n.2 (5th Cir. 1988); Petroleos 

Mexicanos v. Crawford Enters., Inc., 826 F.2d 392, 398 (5th Cir. 1987); Thyssen, Inc. v. S/S 

Chuen On, 693 F.2d 1171, 1173 n.2 (5th Cir. 1982); ITT Cmty. Dev. Corp. v. Barton, 569 F.2d 

1351, 1352 n.1 (5th Cir. 1978); Sanders v. Monsanto Co., 574 F.2d 198, 199 (5th Cir. 1978); 

S.E.C. v. Amerifirst Funding, Inc., No. 3:07-CV-1188-D, 2008 WL 5191896, at *4 (N.D. Tex. 

Dec. 11, 2008).

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is a final judgment and the contemnor, whether a party or non-party, may 

obtain immediate review by appeal.” S. Ry. Co. v. Lanham, 403 F.2d 119, 124 

(5th Cir. 1968) (emphasis added) (citing Union Tool Co. v. Wilson, 259 U.S. 107 

(1922)). See generally 15B Charles Alan Wright & Arthur R. Miller, Federal 

Practice and Procedure § 3917 (2d ed.) (“Final contempt adjudications, 

imposing sanctions, are deemed appealable as final decisions in all situations 

other than that of civil contempt against a party to a pending proceeding.”).

It is clear that the sanctions here are against a nonparty, although 

labeled by the district court as civil in nature. Fulton contends that, 

notwithstanding whether Koerner is a nonparty or whether the contempt order 

is criminal, the instant contempt order is not a final reviewable order because 

the sanctions have not been assessed in a dollar amount. See Thornton v. Gen. 

Motors Corp., 136 F.3d 450, 453 (5th Cir. 1998) (“Normally, an unquantified 

award of attorney’s fees does not constitute a final appealable order pursuant 

to 28 U.S.C. § 1291.”); S. Travel Club, Inc. v. Carnival Air Lines, Inc., 986 F.2d 

125, 131 (5th Cir. 1993) (“[A]n order awarding attorney’s fees or costs is not 

reviewable on appeal until the award is reduced to a sum certain.”). On the

record before us, we agree that the failure to quantify the award bars our 

jurisdiction to review the order. Future disputes on the fees are likely, 

requiring district court involvement to decide the reasonableness of Fulton’s 

fees in this contentious litigation. So exercising jurisdiction now surely risks 

a second appeal of the same order. For these reasons, the instant contempt 

order does not yet constitute a final appealable order pursuant to § 1291. 

Nevertheless, Koerner offers two arguments that the lack of a sum 

certain in this appeal does not bar appellate jurisdiction. First, although 

acknowledging that the dollar amount of sanctions has not been determined, 

he points to Local Rules 54.2 and 54.3 and argues that Fulton failed timely to

move for attorney’s fees and to certify any costs, thus denying the procedural 

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authority of the district court to calculate a sum certain pursuant to an 

untimely motion. First, this argument ignores that “[c]ourts have broad 

discretion in interpreting and applying their own local rules.” Colonial Freight 

Sys., Inc. v. Adams & Reese, LLP., No. 11-1755, 2013 WL 453203, at *1 (E.D. 

La. Feb. 4, 2013) (quoting In re Matter of Adams, 734 F.3d 1094, 1102 (5th Cir. 

1984)). But even assuming that the language of such local rules is pliable 

enough to fit this case, it is clear that Local Rule 54.2 applies where a party 

seeks attorney’s fees after judgment, and that Local Rule 54.3 comes into play 

where judgment is entered for a party who is allowed costs. To the point, 

neither Rule is applicable here.

Second, Koerner says that the contempt order is appealable as a 

collateral order, meaning that the order “(1) conclusively determined the 

disputed question; (2) resolved an important issue separate from the merits of 

the case; and (3) is effectively unreviewable on appeal from a final judgment.” 

In re Deepwater Horizon, 793 F.3d 479, 484 (5th Cir. 2015). We initially note 

that the Supreme Court “ha[s] consistently eschewed a case-by-case approach 

to deciding whether an order is sufficiently collateral.” Cunningham v. 

Hamilton Cty., 527 U.S. 198, 206 (1999); see also Digital Equip. Corp. v. 

Desktop Direct, Inc., 511 U.S. 863, 868 (1994) (“[T]he issue of appealability 

under § 1291 is to be determined for the entire category to which a claim 

belongs . . . .”). 

As we have explained above, irrespective of the collateral-order doctrine,

contempt orders are considered under their own regime and, in some cases, can 

be immediately reviewable or, in other cases, reviewable only from a final 

judgment in the underlying litigation. In short, this claim belongs in the 

category of contempt orders. See, e.g., A-Mark Auction Galleries, Inc. v. Am. 

Numismatic Ass’n, 233 F.3d 895, 899 (5th Cir. 2000) (holding that discovery 

orders are not appealable under the collateral-order doctrine because the 

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subject of the order “may resist that order, be cited for contempt, and then 

challenge the propriety of the discovery order in the course of appealing the 

contempt citation”). And even if we concluded that the collateral-order 

doctrine was applicable to the instant order, we would not assert jurisdiction.

The order must conclusively determine the disputed question, and here, the 

dollar amount of contempt sanctions remains yet to be determined. There is 

still work for the district court to do in connection with the order before us. 

II.

In sum, we lack appellate jurisdiction over the contempt order at issue

because the fees and costs awarded have not yet been determined. We make 

no suggestion about our jurisdiction once the monetary sanction has been 

resolved. Fulton’s Rule 38 motion for damages and costs is denied. This appeal 

is 

DISMISSED. 

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