In the

United States Court of Appeals

For the Seventh Circuit

No. 14-1196

SIK GAEK, INCORPORATED,

Plaintiff-Appellant,

v.

MARCUS HARRIS, et al.,

Defendants-Appellees.

Appeal from the United States District Court for the 

Northern District of Illinois, Eastern Division.

No. 13 C 6624 — James F. Holderman, Judge.

SUBMITTED APRIL 2, 2015 — DECIDED JUNE 17, 2015

Before BAUER, POSNER, and MANION, Circuit Judges.

BAUER, Circuit Judge. Plaintiff-appellant, Sik Gaek, Incorporated, sought sanctions against defendant-appellee, Marcus

Harris, for fees and expenses incurred in connection with

Harris’ failure to attend a deposition in contravention of a

court order. The district court declined to impose sanctions and
2 No. 14-1196

closed the matter. Appellant appeals from that order. We

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affirm.

I. BACKGROUND

In 2010, appellant filed suit in the United States District

Court for the Eastern District of New York against Daniel Kim

and Yogi’s II, Inc., alleging trademark infringement under the

Latham Act and various state law claims. This discovery

dispute arises out of that pending action.

Marcus Harris, a non-party to the underlying New York

litigation, is a Chicago attorney who filed several trademark

applications for Yogi’s II, Inc. On July 17, 2013, appellant

served Harris with a subpoena issued by the Northern District

of Illinois, requiring his deposition and documents related to

the trademark applications he filed for Yogi’s II, Inc. The

deposition did not take place on July 29, 2013, as scheduled.

On September 16, 2013, appellant filed a motion to enforce

the subpoena. The district court granted the motion at a

hearing on October 22, 2013, and ordered Harris to attend

the deposition and produce the documents at his office at

12:00 p.m. on October 29, 2013. Appellant sent Harris, who was

not present at the October 22 hearing, a copy of the order by

mail and facsimile on October 23, 2013, and faxed a letter to

Harris on October 28, 2013, confirming that the deposition

would take place in accordance with the district court’s order.

Appellant also accuses the district court judge of “regionalism,” or

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regional bias. This claim is groundless and warrants no further discussion. 
No. 14-1196 3

On October 29, 2013, one of the appellant’s attorneys,

Thomas Park, arrived at Harris’ office at 11:45 a.m. to take the

deposition. Harris was not there. Park spoke to Harris over the

phone and, according to Park, Harris stated that he was aware

of the court order and would be willing to do the deposition,

but that it would take him at least one hour or more to arrive

at his office. Park told Harris that if he did not arrive by

1:00 p.m. it would be treated as a “no show.” The deposition

did not take place. Later that evening, Harris faxed a letter to

Park stating, “I have every intention of complying with the

court’s order ... . I can be available this week to be deposed

either telephonically or by video. Please propose times that

work with your schedule.” Appellant did not respond to

Harris’ letter or attempt to reschedule. Rather, on October 30,

2013, the next day, appellant filed a motion to hold Harris in

contempt for failing to attend the deposition on October 29,

2013, and seeking sanctions in the form of fees and expenses in

excess of $6,800. Harris filed an affidavit attached to his reply,

which explained that he was on vacation the week of October 22, 2013, celebrating his father’s 70th birthday with his

family in New York City, and that he first became aware of the

district court’s order of October 22, 2013, on October 29, 2013,

at 12:41 p.m., when he spoke with Park on the phone. During

that conversation, Harris claims that he told Park that he

would rush to his office for the deposition, but would not be

able to get there until about 2:00 p.m. According to Harris,

Park refused to take his deposition on October 29 because he

(Park) had to catch a train back to the airport at 1:00 p.m.

Harris then offered to be deposed on the spot via telephone,

but Park refused.
4 No. 14-1196

On November 6, 2013, Harris’ attorney sent a letter to Park

via email, facsimile transmission, regular mail, and certified

mail. The letter stated: “Mr. Harris continues to be available for

deposition, as he has been since he found out about this matter

for the first time on October 29, 2013 ... . Please contact me via

email ... at your earliest convenience to schedule his deposition.” On November 8, 2013, Harris’ attorney called Park’s

office in an attempt to reschedule the deposition; a receptionist

informed Harris’ attorney that Park was not available but

would call back on November 11, 2013. When Park failed to

call Harris on November 11, 2013, Harris’ attorney sent Park

another email that was substantially similar to the email sent

November 6. Neither Park nor any other representative of

appellant responded to Harris or his lawyers.

On December 17, 2013, the district court held a hearing on

appellant’s motion for contempt and sanctions. The district

court ordered appellant to take and complete Harris’ deposition that same day, and appellant did so. The court also

ordered all pending motions, including appellant’s motion for

contempt and fees and expenses, moot. On January 7, 2014,

appellant filed a renewed motion for sanctions in the form of

fees and expenses in excess of $6,800. The district court entered

an order denying appellant’s motion on January 8, 2014, and

closed the matter. This appeal followed.

II. DISCUSSION

The initial inquiry in any appeal is whether the court to

which the appeal has been taken has jurisdiction to entertain

the appeal. Congress has granted the United States Courts of

Appeals jurisdiction over all final decisions of the federal
No. 14-1196 5

district courts. See 28 U.S.C. § 1291. A final decision is one

which ends the litigation on the merits and leaves nothing for

the district court to do but execute the judgment. Midland

Asphalt Corp. v. United States, 489 U.S. 794, 798 (1989). Ordinarily, a pretrial discovery order, such as a refusal to impose

discovery-related sanctions, is not final in the sense that it

winds up the underlying lawsuit. Mulay Plastics, Inc. v. Grand

T. W. R. Co., 742 F.2d 369, 370 (7th Cir. 1984). Strictly speaking,

however, the finality rule is not without exceptions. 

The federal courts of appeals have recognizedthat apretrial

discovery order may constitute a final appealable order when

issued by a district court in an ancillary proceeding, and said

district court is not within the jurisdiction of the circuit court

having appellate jurisdiction to review the final adjudication of

the main action. See Natta v. Zletz, 379 F.2d 615, 618 (7th Cir.

1967); Carter Prods., Inc. v. Eversharp, Inc., 360 F.2d 868, 872 (7th

Cir. 1966); see also Hooker v. Continental Life Ins. Co., 965 F.2d

903, 905 (10th Cir. 1992); Micro Motion, Inc. v. Exac Corp., 876

F.2d 1574, 1576 (Fed. Cir. 1989); In re Grand Jury Proceedings,

etc., 649 F.2d 387, 388 (6th Cir. 1981); Republic Gear Co. v. BorgWarner Corp., 381 F.2d 551, 554 (2d Cir. 1967); Horizons Titanium

Corp. v. Norton Co., 290 F.2d 421, 424 (1st Cir. 1961). Here, the

district court order denying sanctions was issued in a jurisdiction not that of the main proceeding. Consequently, appellants

cannot obtain effective review of the order as part of an appeal

of a final adjudication of the main action; the Second Circuit

lacks jurisdiction over both the district court that entered the

order at issue and non-party Harris. Furthermore,this case was

filed in the Northern District of Illinois solely for the purpose

of obtaining discovery from Harris; after that object was
6 No. 14-1196

accomplished, the district court denied appellant’s motion for

sanctions and closed the matter, ending the ancillary litigation.

There is nothing left for the district court to do. Rather, the

only issue remaining is the validity of the district court’s order,

and appellant can only obtain meaningful review of that order

in this court. For these reasons, we hold that this court has

jurisdiction to review the district court’s order.

As for the merits, Federal Rule of Civil Procedure

37(b)(2)(A)grantsdistrict courts the power to impose appropriate sanctions for violations of discovery orders. We review

those sanctions only for an abuse of discretion. Domanus v.

Lewicki, 742 F.3d 290, 295 (7th Cir. 2014). We do not find that

the district court abused its discretion here.

Appellant contends that Federal Rule of Civil Procedure

37(b)(2)(C) mandates the assessment of fees and costs in the

circumstances of this case. That Rule states, “the court must

order the disobedient party ... to pay 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.” Fed. R. Civ. P. 37(b)(2)(C)

(emphasis added). The qualifying language of the final clause

makes clear that fees are not mandatory. Harris’ failure to

attend the deposition on October 29, 2013, was an inadvertent

and irreproachable incident. As Harris explained in his

affidavit, he was out of town the week of October 22, 2013, and

was not present at the hearing on October 22, 2013, where the

district court entered the pertinent order, nor did he receive the

letters that appellant mailed and faxed to his office regarding

the order. When Harris first became aware of the court’s order,

he offered to rush to his office to take the deposition as
No. 14-1196 7

scheduled, albeit it a few hours late; appellant, however,

refused to grant him this minor concession. Harris further

offered to conduct the deposition on the spot by telephone, but

appellant refused this offer as well. Thereafter, Harris reached

out to appellant no less than four times, each time informing

appellant that he was available to schedule the deposition at

appellant’s earliest convenience, yet appellant did not respond

to any of Harris’ communications. The district court was

intimately familiar with the parties and the facts and circumstancesunderlying this discovery dispute. The court’s decision

not to impose sanctions for Harris’ inadvertent failure, which

he went out of his way to rectify, did not constitute an abuse of

discretion.

III. CONCLUSION

For these reasons, the district court’s order denying

appellant’s motion for sanctions is AFFIRMED.