REVISED, July 20, 1998
UNITED STATES COURT OF APPEALS FIFTH CIRCUIT
____________
No. 97-50341 ____________
PATTI FAIN SMITH,
Plaintiff - Appellee,
versus
JEAN S SMITH; ROBERT PAT SMITH, JR.; TRI-COAST LIMITED PARTNERSHIP,
Defendants
JEAN S SMITH
Defendant - Appellant.
No. 97-50575 ____________
JEAN S SMITH; ROBERT PAT SMITH, JR.; TRI-COAST LIMITED PARTNERSHIP,
Defendants - Appellants. Appeal from the United States District Court for the Western District of Texas
June 29, 1998 Before KING, EMILIO M. GARZA, and DeMOSS, Circuit Judges.
EMILIO M. GARZA, Circuit Judge:
In appeal No. 97-50341, Jean S. Smith (“Defendant Smith”)
appeals the district court’s judgment finding her in criminal
contempt and imposing a 180-day jail term. In the consolidated
appeal, No. 97-50575, Jean Smith and her son, Robert P. Smith, Jr.
(collectively “defendants”), appeal the district court’s entry of
a default judgment against them in a related case. We reverse the
district court’s finding of criminal contempt in appeal No. 97-
50341, and remand to the district court for further proceedings if
necessary. We affirm the district court’s entry of default
judgment in appeal No. 97-50575.
I
Although the underlying facts in these two consolidated
appeals are not greatly disputed, this is the third time that we
have seen these same parties on appeal and the second time that we
have been asked to review the district court’s finding of contempt
against Defendant Smith. See Smith v. Smith, No. 96-50569, slip
op. at 1 (5th Cir. Dec. 3, 1996) (Smith I) (reversing criminal
contempt finding and affirming civil contempt finding); Smith v.
-2- Smith, No. 96-50494, slip op. at 1 (5th Cir. June 30, 1997) (Smith
II) (affirming jury verdict in favor of plaintiffs). In order to
understand the district court’s obvious and understandable
frustration with the conduct of the defendants during the course of
this litigation))particularly Defendant Smith’s conduct))a full
understanding of the procedural history is necessary. As we noted
in the second appeal, “this lawsuit involves a family sadly torn
apart.” Smith II, slip op. at 1.
These consolidated appeals arise out of two separate fraud
suits brought by the plaintiffs, Patti Fain Smith (“Plaintiff
Smith”) and her late husband W. Blake Smith, against their former
daughter-in-law, Jean Smith, and their grandson Robert P. Smith,
Jr. The first fraud suit (“1994 suit”) alleged that the defendants
had fraudulently convinced the plaintiffs to transfer most of their
assets to the defendants. Following a jury trial in this suit
before the Honorable Walter S. Smith, Jr., Plaintiff Smith and her
husband, now deceased, prevailed on the merits and received a
substantial dollar award. We affirmed this verdict in an
unpublished decision, see Smith II, slip op. at 4-8, and the jury
verdict is not directly the subject of either of these appeals.
Plaintiff Smith’s efforts to collect the jury verdict in the
1994 suit, however, gave rise to the events that triggered appeal
No. 97-50341. During the extended postjudgment proceedings for the
1994 suit, the district court has now twice held Defendant Smith in
-3- criminal contempt of court. See Smith I, slip op. at 1. In the
first contempt proceedings held on July 26, 1996, the district
court held Defendant Smith in both civil and criminal contempt for
failing to appear and give testimony at an oral deposition as
ordered by the court.1 The district court ordered that Defendant
Smith be held in the custody of the U.S. Marshal for a period of
ten days (i.e., the criminal contempt portion) and that she be
incarcerated until she purged herself from contempt by giving her
deposition (i.e., the civil contempt portion). Defendant Smith
immediately filed a notice of appeal to our court and petitioned
for a stay of the district court’s order pending appeal. We
granted a stay of the district court’s order, and on December 3,
1996, after considering the merits of her appeal, summarily
reversed and vacated the criminal portion of the district court’s
1 The district court had issued an order on June 12, 1996, compelling Defendant Smith to appear at an oral deposition on June 21, 1996. Defendant Smith declared bankruptcy on June 19, 1996, and failed to appear at her scheduled deposition. The district court subsequently issued Defendant Smith an order to show cause why she should not be held in contempt of court. This order did not specify that Defendant Smith could be held in criminal contempt. Following the show cause hearing on July 26, 1996, the district court rejected Defendant Smith‘s argument that her declaration of bankruptcy gave her an automatic stay of the court’s order to appear for the deposition. See Smith v. Smith, No. W-94- CA-366, slip op. at 4-6 (W.D. Tex. July 26, 1996). The district court explained that Defendant Smith “chose not to attend the deposition without requesting that this Court stay or postpone the deposition or for any clarification of the order [and that] her filing for bankruptcy only stayed the proceedings against her personally, not against her in her representative capacity.” Id. at 6.
-4- contempt order because the court failed to give adequate notice or
follow the procedures set forth in FDIC v. LeGrand, 43 F.3d 163,
169-70 (5th Cir. 1995). See Smith I, slip op. at 1. At the same
time, we affirmed the civil portion of the contempt order and
“remanded to the district court for enforcement.” Id. Our mandate
issued on December 30, 1996.
In between the issuance of our opinion in Smith I and the
issuance of our mandate, the parties continued to file a flurry of
motions in the district court, and the plaintiffs continued to seek
another order compelling Defendant Smith to submit to an oral
deposition and produce documents on the status of her finances.
Instead of issuing an arrest warrant and incarcerating Defendant
Smith until she had submitted to a deposition (which would have
been consistent with our opinion and mandate in Smith I), the
district court, on December 17, 1996, issued another order
compelling Defendant Smith to submit to an oral deposition and to
produce documents at opposing counsel’s law firm on December 30,
1996.2 Although counsel for Defendant Smith appeared on the
2 While her first contempt was pending on appeal in Smith I, Defendant Smith filed several motions in the district court to stay enforcement of further contempt proceedings until she was better able to cope with the stress and her rapidly deteriorating mental health; the district court denied each of these motions. During this time, the district court also granted the plaintiffs’ motion for a mental examination of Defendant Smith to determine whether she was mentally capable of appearing and defending herself at a show cause hearing that the district court had scheduled for November 25, 1996. The doctor who conducted the examination concluded that Defendant Smith was mentally capable and competent
-5- scheduled date, Defendant Smith did not. Counsel for Defendant
Smith acknowledged on the record that he transmitted to his client
the district court’s order that she appear for a deposition on
December 30, 1996, and that she had gathered documents responsive
to this order. Counsel for Defendant Smith also provided some
explanation (both at the time of the scheduled deposition and later
in response to the plaintiffs’ motion for a show cause order) as to
why Defendant Smith did not appear at the December 30, 1996
scheduled deposition. Counsel for Defendant Smith alleged that she
had checked in for her flight on December 29, 1996, to come to Waco
for the deposition, but that she missed her flight when a piece of
her carry-on luggage was stolen (or misplaced). According to her
counsel, she then became very upset, someone called the airport
police and her psychiatrist, and she was taken to the hospital,
thereby causing her to miss her scheduled December 30 deposition.
While Plaintiff Smith vigorously disputes this characterization of
the incident, the district court never made a factual finding as to
the reason for Defendant Smith’s absence, and we express no opinion
to appear. The scheduled show cause hearing did not occur, however, because the plaintiffs sought and the district court granted a continuance. On November 21, 1996, the district court then issued an order compelling Defendant Smith to produce documents and submit to an oral deposition on December 9, 1996. Defendant Smith failed to appear for this deposition, claiming that she was hospitalized following an overdose of psychiatric antidepressant medications. Defendant Smith’s failure to appear at the December 9, 1996 deposition led the plaintiffs to seek another order compelling Defendant Smith to submit to an oral deposition. The district court issued this order on December 17, 1996.
-6- as to the veracity of her explanation, or indeed, whether it would
in any case justify her nonappearance.
On December 31, 1996, the plaintiffs filed a motion seeking a
show cause order as to why Defendant Smith should not be held in
civil and criminal contempt. Defendant Smith responded to the
plaintiffs’ motion by further explaining the reasons that she
missed the December 30 deposition and attaching copies of her
boarding pass and the airport incident report to substantiate her
explanation. On February 13, 1997, the district court issued a
show cause order directing Defendant Smith to appear and show cause
on March 17, 1997, why she should not be held in criminal and civil
contempt. Although her counsel again appeared on the scheduled
date, Defendant Smith failed to appear for the show cause hearing.
The district court instructed the court security officer to call
Defendant Smith’s name three times in the hallway. After receiving
no answer, the district court stated as follows: “Apparently, she
has not appeared. Then the Court will order her in contempt of
court for not appearing and for any other reason that we can think
of.” Counsel for Defendant Smith stipulated on the record that he
received a copy of the court’s show cause order; he refused,
however, to answer opposing counsel’s question as to whether he
mailed Defendant Smith a copy of the order. The district court
then adjourned the hearing without making any findings of fact or
conclusions of law.
Subsequently, on March 31, 1996, without any further hearings
-7- or communication with either party, the district court sua sponte
issued an order holding Defendant Smith in criminal contempt
pursuant to 18 U.S.C. § 401(1).3 The court based its finding of
criminal contempt on the fact that Defendant Smith “has refused and
continues to refuse to comply with the terms of this Court’s Orders
dated December 30, 1996 and February 13, 1997.”4 The district
court commanded the United States Marshal to arrest Defendant Smith
and incarcerate her for a period of 180 days. The court further
ordered that the matter be referred to the Office of the United
States Attorney for prosecution pursuant to 18 U.S.C. §§ 401(3) and
402. The court’s judgment was entered on the civil docket for the
1994 suit on April 1, 1997. Defendant Smith filed her notice of
appeal 28 days later.5
Appeal No. 97-50575 also arises from Plaintiff Smith’s
attempts to collect the jury verdict from the 1994 suit. In order
3 18 U.S.C. § 401(1) states that “[a] court of the United States shall have power to punish by fine or imprisonment, at its discretion, such contempt of its authority, and none other, as))(1) Misbehavior of any person in its presence or so near thereto as to obstruct the administration of justice.” 4 December 30, 1996 was actually the date of Defendant Smith’s court-ordered deposition, not the date of the court’s order. The court’s order compelling the deposition was issued December 17, 1996. Because no order was issued on December 30, we assume that the district court meant to reference the December 17 order. 5 At the time this case was submitted at oral argument, Defendant Smith had not yet been incarcerated, and the U.S. Attorney had not yet acted on the district court’s referral. On April 29, 1998, however, Defendant Smith was arrested by the U.S. Marshal’s Service and has been in custody since that time.
-8- to do so, Plaintiff Smith and her husband filed a second fraud suit
against the defendants in July 1996 (“1996 suit”), alleging that
the defendants had fraudulently transferred substantially all of
their property to a spendthrift trust in anticipation of the
plaintiffs’ 1994 suit. On January 27 and 28, 1997, the defendants
failed to appear for scheduled depositions in connection with the
1996 suit. The district court subsequently entered an order
requiring defendants to appear for depositions on February 20 and
21, 1997; yet again, the defendants failed to appear. In June
1997, in light of the defendants’s failure to comply with the
discovery orders in the 1996 suit, and after the events stemming
from the 1994 suit had transpired, the district court entered
default judgment in the 1996 suit pursuant to FED. R. CIV. P.
37(b)(2)(C). The default judgment ordered that certain fraudulent
transfers be rescinded, that a constructive trust and lien be
imposed in favor of the plaintiffs, and that exemplary damages in
the amount of $500,000 be awarded. The defendants timely appealed
from this default judgment.
IIA
In appeal No. 97-50341, Defendant Smith’s challenges the
district court’s finding of criminal contempt in the postjudgment
proceedings in the 1994 suit. Because Defendant Smith filed her
notice of appeal 28 days after the court’s entry of the criminal
contempt judgment, we must first decide whether her notice of
appeal was timely. The filing of a timely notice of appeal is
-9- mandatory and jurisdictional. See Smith v. Barry, 502 U.S. 244,
248, 112 S. Ct. 678, 682, 116 L. Ed. 2d 678 (1992); Harcon Barge
Co. v. D & G Boat Rentals, Inc., 746 F.2d 278, 283 n.2 (5th Cir.
1984). FED. R. APP. P. 4(b) states that the defendant in a criminal
case must file a notice of appeal within 10 days after entry of the
judgment; Rule 4(a) provides that a party in a civil case must file
a notice of appeal within 30 days after entry of the judgment. See
FED. R. APP. P. 4(a)-(b).
Plaintiff Smith argues that the 10-day time limit of FED. R.
APP. P. 4(b) applies because the district court held Defendant
Smith in criminal contempt. Defendant Smith concedes that she was
held in criminal contempt,6 but argues that this was merely an
“order” in her underlying civil “case” and that we therefore should
apply the 30-day rule of Rule 4(a). As Defendant Smith correctly
points out, this issue raises a question of first impression in our
Court))namely, which time limit applies for the notice of appeal
for a criminal contempt order issued in a civil case. Nonetheless,
due to the unusual circumstances surrounding the entry of the
6 Both parties (and the district court) agree that Defendant Smith’s penalty is a criminal, rather than a civil, penalty. The district court’s order states that Defendant Smith is to be incarcerated for 180 days; it is unconditional and there is no way in which she can purge this penalty. As such, her penalty is undoubtedly a criminal sanction. See LeGrand, 43 F.3d at 168-69 (holding that absolute penalty intended to punish is viewed as criminal penalty); In re Rumaker, 646 F.2d 870 (5th Cir. 1980) (holding that noncoercive, unconditional, and noncompensatory penalty is criminal contempt).
-10- judgment in this case, we ultimately need not answer the question
of whether Rule 4(a) or 4(b) applies. Under the plain language of
the rules, regardless of which rule applies to Defendant Smith’s
appeal, her notice of appeal was timely.
Of primary importance to the issue at hand is the fact that
the district court entered its criminal contempt order on the
existing civil docket for the 1994 suit and consistently has
docketed all of the motions and orders regarding the criminal
contempt on the civil docket for the 1994 suit. The court’s entry
of the judgment on the civil docket is consistent with the federal
rules and requirements for entering civil judgments. See FED. R.
APP. P. 4(a) (“A judgment or order is entered within the meaning of
this Rule 4(a) when it is entered in compliance with Rules 58 and
79(a) of the Federal Rules of Civil Procedure.”); FED. R. CIV. P.
79(a) (“The clerk shall keep a book known as ‘civil docket’ of such
form and style as may be prescribed by the Director of the
Administrative Office of the United States Courts . . . and shall
enter therein each civil action to which these rules are made
applicable.”); see also Harcon Barge, 746 F.2d at 281-82 (taking
judicial notice of the uniform practice of the district courts of
the Fifth Circuit for entering civil judgments).
The court’s entry of the criminal contempt judgment on the
civil docket, however, is not consistent (at least for purposes of
determining the timeliness of the notice of appeal) with the
-11- requirements for entering criminal judgments. See FED. R. APP. P.
4(b); FED. R. CRIM. P. 55. FED. R. APP. P. 4(b) states that the 10-
day time period for filing a notice of appeal begins to run from
“entry . . . of the judgment.” The rule further clarifies that
“[a] judgment or order is entered within the meaning of [Rule 4(b)]
when it is entered on the criminal docket.” FED. R. APP. P. 4(b)
(emphasis added).7 Thus, the 10-day time period of Rule 4(b) does
not begin to run until the order is entered on the criminal docket.
See United States v. Chagra, 735 F.2d 870, 872-73 (5th Cir. 1984).
The issue we face, therefore, assuming that FED. R. APP. P.
4(b) applies, is whether Defendant Smith’s notice of appeal was
timely filed because the district court erroneously entered the
judgment on the civil docket. In United States v. Thoreen, 653
7 F ED . R. CRIM. P. 55 states that “[t]he clerk of the district court . . . shall keep records in criminal proceedings in such form as the Director of the Administrative Office of the United States Courts may prescribe. The clerk shall enter in the records each order or judgment of the court and the date of such entry is made.” FED. R. CRIM. P. 55. The Director of the Administrative Office has provided that:
Each order or judgment of the court is required to be entered in the criminal docket, and the entry must show the date entry is made. FED. R. CRIM. P. 55. A judgment or order is deemed to be entered for purposes of computing time for appeal when it is entered in the criminal docket. FED. R. APP. P. 4(b).
Clerks Manual - United States District Courts § 8.12 (Administrative Office of the United States Courts, 1993); see also United States v. Chagra, 735 F.2d 870, 873 & n.6 (5th Cir. 1984) (discussing requirements of FED. R. CRIM. P. 55 and FED. R. APP. P. 4(b)).
-12- F.2d 1332, 1337-38 (9th Cir. 1981), the Ninth Circuit faced this
precise issue. In that case, the district court held an attorney
in criminal contempt and entered the order on the civil docket, as
the underlying action had been consistently docketed as a civil
matter. The attorney filed his notice of appeal 11 days after the
district court entered the judgment on the civil docket. In the
court of appeals, the attorney “argue[d] that he filed timely
because the case was docketed consistently as a civil matter and
the order has never been entered on a criminal docket.” Id. The
court agreed, explaining that “[w]e agree with the government that
the contempt proceeding was criminal, but hold that Thoreen’s
appeal was timely because the clerk did not enter the judgment on
the criminal docket. The ten-day period had not begun to run.”
Id. at 1338.
Here, it is undisputed that the district court never entered
the contempt order on a criminal docket and, in fact, that no
criminal docket was ever opened for Defendant Smith’s criminal
contempt. “In the face of specific provisions of FED. R. APP. P.
4(b), we are unable to agree with the [plaintiff’s] contention”
that the 10-day time period begins to run before the district court
enters the judgment on the criminal docket. See Chagra, 735 F.2d
at 873; cf. United States v. Doyle, 854 F.2d 771, 772 (5th Cir.
1988) (holding that under Rule 4(a) 30-day period begins to run
from the date of entry of the judgment on the civil docket).
-13- Consequently, for purposes of determining the timeliness of the
notice of appeal under Rule 4(b), the judgment was never “entered,”
and the 10-day time period has not run. See Thoreen, 653 F.2d
1332, 1337-38 (9th Cir. 1981) (concluding that appeal was timely
because criminal contempt order was docketed on civil docket
instead of criminal docket); Chagra, 735 F.2d at 873 (measuring
timeliness from the date that judgment is entered on the criminal
docket).
Thus, assuming arguendo that FED. R. APP. P. 4(b) applies to
the district court’s order of criminal contempt arising in the
underlying civil case, Defendant Smith’s notice of appeal was
nonetheless timely filed. Alternatively, the notice of appeal was
timely under the 30-day time limit of FED. R. APP. P. 4(a) because
it was filed 28 days after entry of the judgment on the civil
docket. See Thoreen, 653 F.2d at 1338 (“Alternatively, the appeal
is timely under Rule 4(a) because it was filed within 30 days of
the entry of the judgment on the civil docket.”). In either case,
therefore, under the plain language of the rules, Defendant Smith’s
notice of appeal was timely, and we have jurisdiction to consider
the merits of the district court’s judgment holding her in criminal
contempt.8
8 Defendant Smith does not challenge the validity of the criminal contempt judgment on the grounds that district court entered the judgment on the civil, rather than the criminal, docket. Consequently, we express no opinion on this question. Cf. Gregory v. Depte, 896 F.2d 31, 35-36 (3d Cir. 1990) (vacating
-14- B
We review the district court’s contempt order for abuse of
discretion, and its factual findings under the clearly erroneous
standard. See LeGrand, 43 F.3d at 168-69; Martin v. Trinity
Indus., Inc., 959 F.2d 45, 46-47 (5th Cir. 1992). Defendant Smith
argues that the district court erred by finding her in criminal
contempt through the summary procedures of FED. R. CRIM. P. 42(a)
because her contempt was not committed in the actual presence of
the court. Plaintiff Smith concedes that the district court failed
to follow the procedures required by FED. R. CRIM. P. 42(b), but
argues that compliance with Rule 42(b) was unnecessary and that the
court correctly prosecuted this contempt summarily under Rule
42(a). See United States v. Nunez, 801 F.2d 1260, 1263 (11th Cir.
1986) (noting that “Rule 42 outlines the two alternative procedures
to be used [for criminal contempt], depending on whether the
contemptuous behavior occurred in the presence of the court, or
not”). Thus, properly framed, the only remaining question for this
appeal is whether the district court erred in utilizing the summary
procedures of Rule 42(a) instead of providing the extended
sanction and remanding to the district court “to take all appropriate steps” because it was unclear whether sanction was civil or criminal and order “ha[d] never been entered in the criminal docket of the district court as required by FED. R. APP. P. 4(b)”). Moreover, we note in passing that FED. R. APP. P. 4(b) specifies that it is only “within the meaning of this subdivision [i.e., for purposes of computing the timeliness of the notice of appeal]” that a judgment must be entered on the criminal docket in order to be “entered.”
-15- protections of Rule 42(b).9
Rule 42(a) states as follows:
(a) Summary Disposition. A criminal contempt may be punished summarily if the judge certifies that the judge saw or heard the conduct constituting the contempt and that it was committed in the actual presence of the court. The order of contempt shall recite the facts and shall be signed by the judge and entered of record.
FED. R. CRIM. P. 42(a). The district court, therefore, may utilize
the summary procedures of Rule 42(a) only when the judge certifies
that the judge “saw or heard the conduct constituting the contempt”
and that the defendant’s contempt was committed “in the actual
presence of the court.” The power summarily to convict and punish
for contempt of court under Rule 42(a) “rests on the proposition
that a hearing to determine guilt of contempt is not necessary when
contumacious conduct occurs in the actual presence of a judge who
observes it, and when immediate action is required to preserve
order in the proceedings and appropriate respect for the tribunal.”
In re Chaplain, 621 F.2d 1272, 1275 (4th Cir. 1980).
9 FED. R. CRIM. P. 42(b) states in pertinent part:
A criminal contempt except as provided in [Rule 42(a)] shall be prosecuted on notice. . . . The notice shall be given orally by the judge in open court in the presence of the defendant or, on application of the United States attorney or of an attorney appointed by the court for that purpose, by an order to show cause or an order of arrest. The defendant is entitled to a trial by jury in any case in which an act of Congress so provides. . . . If the contempt charged involves disrespect to or criticism of a judge, that judge is disqualified from presiding at the trial or hearing except with the defendant’s consent.
-16- Here, the district court’s order demonstrates that Defendant
Smith was held in criminal contempt for failing to appear for her
deposition (scheduled for December 30, 1996) and for failing to
appear for her show cause hearing (scheduled for March 17, 1997),
thereby violating the district court’s December 17th and February
13th orders to do so. Defendant Smith argues that because the
contempt was based on her absence from the deposition and hearing,
she could not be held in criminal contempt under the summary
procedures of FED. R. CRIM. P. 42(a). We agree.
In United States v. Onu, 730 F.2d 253, 255-56 (5th Cir. 1984),
we explained that “[t]he failure of a lawyer to appear for a trial
is not a contempt committed in the presence of the court.
Therefore it may be prosecuted only on notice as prescribed by FED.
R. CRIM. P. 42(b).” See also United States v. Nunez, 801 F.2d 1260,
1264 (11th Cir. 1986) (“[T]he majority of circuits which have
considered the issue have concluded that counsel’s tardiness or
absence cannot be characterized as contempt in the presence of the
court.”). “[T]he contempt consists not in the absence from the
courtroom but in the reasons for the attorney’s presence elsewhere,
and the presence elsewhere was, of course, not in the actual
presence of the Court.” In re Allis, 531 F.2d 1391, 1392 (9th Cir.
1976); see also Thyssen, Inc. v. S/S Chuen On, 693 F.2d 1171, 1175
(5th Cir. 1982) (“We adopt the Allis approach and hold that
ordinarily Rule 42(a) may not be used to punish an attorney for a
-17- contempt consisting of lateness or absence from a scheduled court
appearance.”); United States v. Delahanty, 488 F.2d 396, 398 (6th
Cir. 1973) (“We find that this matter should not have been dealt
with summarily. While the absence of Appellants was obvious to the
Court, the reasons for their absence were not.”).
In Thyssen, we noted that there may be a “hypothetical
exception” to the general rule that absence can be punished only
through Rule 42(b) when the reason for the absence or tardiness is
“known to the court.” Thyssen, 693 F.2d at 1175. We explained
that this could occur because “[c]ounsel may advise the court that
he will not appear for a certain reason, or he may advise the court
why he was absent.” Id.; see also United States v. Baldwin, 770
F.2d 1550, 1555 (11th Cir. 1985) (upholding use of summary contempt
procedures where the attorney, prior to his absence, “told the
court why he would not be present on April 17, and that he was
refusing to obey a court order”). While Onu calls into question
whether such a “hypothetical exception” exists, see Onu, 730 F.2d
256 n.5 (quoting same language from Thyssen and explaining that
“[d]espite this observation, we consider ourselves bound in this
case by the requirements of Rule 42(b)”), even if such an exception
does remain, it would not apply to the case at hand.
Here, as in Thyssen, “[w]e need not now explore all the
potential contours of this hypothetical exception . . . for here,
so far as the record shows, the contempt order was rendered before
-18- any explanation of the absence or failure to contact the court was
made known to the court . . . and, indeed, in [the defendant’s]
absence.” Thyssen, 693 F.2d at 1175; see also Baldwin, 770 F.2d at
1554 (“Because summary contempt allows the court to punish the
contemnor without benefit of numerous procedural protections, we
have determined that it is only appropriate in narrowly defined
circumstances.”); In re Oliver, 333 U.S. 257, 275-76, 68 S. Ct.
499, 508-09, 92 L. Ed. 682 (1948) (holding that if the judge must
depend upon others for knowledge of the essential elements, due
process requires notice and a fair hearing).
Plaintiff Smith argues that “the court already knew the reason
for [Defendant Smith’s] non-appearance, i.e. that she was willfully
and intentionally attempting to obstruct the administration of
justice by preventing the Plaintiffs from performing meaningful
post-judgment discovery.” While it is certainly possibly that this
is the case))and there is no doubt that Plaintiff Smith believes
this to be true, neither the district court nor this Court may make
such a conclusion from the record. Adopting plaintiff’s standard
for when the court can dispense with the heightened procedural
requirements of Rule 42(b) and punish summarily under Rule 42(a)
would eviscerate the requirement that the contempt occur in the
“actual presence of the court.” FED. R. CRIM. P. 42(a); see also In
re Oliver, 333 U.S. at 275-76, 68 S. Ct. at 508-09 (“The narrow
exception to these due process requirements includes only charges
-19- of misconduct, in open court, in the presence of the judge, which
disturbs the court’s business, where all of the essential elements
of the misconduct are under the eye of the court, are actually
observed by the court, and where immediate punishment is essential
to prevent demoralization of the court’s authority . . . before the
public.”) (internal quotations omitted).
In addition, the district court made no findings of fact as to
the reasons for Defendant Smith’s absences and Plaintiff Smith
presented no direct evidence to support her assertions (other than
Defendant Smith’s demonstrated absence). Although Plaintiff Smith
strongly objects to Defendant Smith’s version of events, Defendant
Smith did present some explanation for her absence (at least with
regards to the December 30, 1996 deposition). See supra at 4-5.
“‘If an explanation for tardiness is made which is inconsistent
with wilful disobedience, a hearing must be held’ . . . .”
Thyssen, 693 F.2d at 1175 n.6 (quoting In re Allis, 531 F.2d at
1392). As we stated in Onu, “[t]he procedures for summary
disposition of contempt charges are reserved ‘for exceptional
circumstances, . . . such as acts threatening the judge or
disrupting a hearing or obstructing court proceedings.’” Onu, 730
F.2d at 255 (quoting Harris v. United States, 382 U.S. 162, 164, 86
S. Ct. 352, 354, 15 L. Ed. 2d 240 (1965)) (alterations in
original).
We, of course, recognize the district court’s need to preserve
-20- the integrity of its court. The district court undoubtedly could
hold Defendant Smith in civil contempt for her failure to comply
with the court’s orders to appear, see LeGrand, 43 F.3d at 170, or
in criminal contempt following an adequate hearing pursuant to FED.
R. CRIM. P. 42(b).10 See, e.g., LeGrand, 43 F.3d at 169 (holding
that Rule 42(b) requires appointment of independent prosecutor);
American Airlines, Inc. v. Allied Pilots Ass’n, 968 F.2d 523, 531
(5th Cir. 1992) (explaining that under Rule 42(b) “the judge may
‘not prosecute the contempt proceeding and at the same time act as
Judge’”) (quoting In re Davidson, 908 F.2d 1249, 1251 (5th Cir.
1990)). If the district court intended to punish Defendant Smith’s
contempt immediately, the court could have issued a bench warrant
for her arrest and had the United States Marshals bring her before
the court for an appropriate hearing.
Thus, although we do not in any respect condone Defendant
Smith‘s behavior, her failure to appear (i.e., her absence) is not
contempt “committed in the actual presence of the court” such that
she can be summarily held in criminal contempt. Notwithstanding
our reversal of the criminal penalty, we do not foreclose further
10 Defendant Smith does not argue that FED. R. CRIM. P. 42(b) prohibits Judge Smith from presiding at a contempt hearing on remand. Cf. FED. R. CRIM. P. 42(b) (“If the contempt charged involves disrespect to or criticism of a judge, that judge is disqualified from presiding at trial or hearing except with the defendant’s consent.”); see also Thyssen, 693 F.2d at 1176 n.7 (raising the issue as to whether absence from a hearing constitutes “disrespect to the judge” requiring disqualification under Rule 42(b)). Accordingly, we express no opinion on this question.
-21- proceedings below, either civil or criminal, in respect to the
incidents in question or any future incidents should they arise.
See Thyssen, 693 F.2d at 1176; Nunez, 801 F.2d 1265. The district
court has full authority to enforce its orders and preserve the
integrity of the court.11
IV
In the consolidated appeal (No. 97-50575), the defendants ask
this Court to reverse the district court’s imposition of the
default judgment in the 1996 suit. We review the court’s entry of
default judgment for an abuse of discretion. See National Hockey
League v. Metropolitan Hockey Club, Inc., 427 U.S. 639, 642, 96 S.
Ct. 2778, 2780, 49 L. Ed. 2d 747 (1976); Batson v. Neal Spelce
Assocs., Inc., 805 F.2d 546, 548 (5th Cir. 1986). With regards to
the 1996 suit, it is undisputed that the defendants failed to
appear for depositions scheduled for January 27 and 28, 1997, and
that they failed to comply with the district court’s order setting
depositions for February 20 and 21, 1997. In addition, both
parties agree that these were the only discovery orders that the
11 Given our conclusion that the district court erred in not conducting a hearing and taking evidence from Defendant Smith pursuant to FED. R. CRIM. P. 42(b), we need not reach Defendant Smith’s remaining argument that the district court’s summary procedures violated FED. R. CRIM. P. 43(a). See FED. R. CRIM. P. 43(a)-(c) (setting forth requirement that the defendant be present at every stage of trial unless presence has been waived); cf. SEC v. Kimmes, 759 F. Supp. 430, 438 (N.D. Ill. 1991) (explaining that the defendant “has the right under Rule 43(b) to be present at any hearing relating to criminal contempt charges against him”).
-22- defendants violated in the 1996 suit. The defendants argue,
therefore, that the sanction imposed was excessive and that the
district court erred in considering their contumacious behavior in
the postjudgment proceedings in the 1994 suit to enter the default
judgment in this case. We disagree.
Under the plain language of Rule 37(b)(2), “[i]f a party . .
. fails to obey an order to provide or permit discovery,” the
district court has authority to “strik[e] out pleadings . . . or
render[] a judgment by default.” FED. R. CIV. P. 37(b)(2)(C). We
have explained that “dismissal is authorized only when the failure
to comply with the court’s order results from willfulness or bad
faith . . . . [and] where the deterrent value of Rule 37 cannot be
substantially achieved by the use of less drastic sanctions.”
Bluitt v. Arco Chem. Co., 777 F.2d 188, 190 (5th Cir. 1985). In
making its “bad faith” determination, the district court was
entitled to rely on its complete understanding of the parties’
motivations. See FED. R. EVID. 404(b); Batson, 805 F.2d at 550-51;
Emerick v. Fenick Indus., Inc., 539 F.2d 1379, 1381 (5th Cir.
1976). Defendants present no authority for the proposition that
the district court is prevented from considering a party’s actions
in a related case in making its bad faith determination under FED.
R. CIV. P. 37. Moreover, the dilatory and obstructive conduct of
the defendants has been well-documented and the extreme sanction of
default judgment was warranted by their actions. See Bonaventure
-23- v. Butler, 593 F.2d 625, 626 (5th Cir. 1979) (“Deliberate, repeated
refusals to comply with discovery orders have been held to justify
the use of this ultimate sanction.”); Emerick, 539 F.2d at 1381
(“[W]hen a defendant demonstrates flagrant bad faith and callous
disregard of its responsibilities, the district court’s choice of
the extreme sanction is not an abuse of discretion.”).
Accordingly, the district court did not abuse its discretion in
entering a default judgment in the 1996 suit.
V
For the foregoing reasons, the judgment of the district court
in appeal No. 97-50341 is hereby REVERSED and the cause is REMANDED
to the district court for further proceedings, if necessary,
consistent with this opinion. The judgment of the district court
in appeal No. 97-50575 is hereby AFFIRMED.
DeMOSS, Circuit Judge, specially concurring:
I concur fully in the language and reasoning set forth in Part
III of the foregoing opinion relating to appeal No. 97-50575. As
to appeal No. 97-50341, I concur fully as to the language and
-24- reasoning in Part II.B., but as to Part II.A. relating to appellate
jurisdiction I concur only in the holding that this Court does have
appellate jurisdiction to review the merits of the district court’s
order which was issued on March 31, 1996, and entered on April 1,
1996, and which held defendant Jean Smith in criminal contempt
without any hearing or communication with any party.
This order was entered on the civil docket of the 1994 civil
lawsuit and the conduct which the district court determined to be
contumacious was Jean Smith’s failure and refusal to comply with
terms of certain orders of the district court. Those orders had
been issued and entered on the docket of that same civil case.
Jean Smith filed her notice of appeal as to the contempt order
within thirty days after the entry of the contempt order, and that
notice of appeal was entered on the same civil docket of the same
civil case as the contempt order itself. As the majority opinion
points out, there is not now and never has been a criminal case
involving Jean Smith, and there never has been any criminal docket
upon which the contempt order could have been entered.
Consequently, it seems to me that the clear and plain language of
FED. R. APP. P. 4(a) determines the timeliness of the notice of
appeal filed in this case, and since that notice of appeal was
timely filed under FED. R. APP. P. 4(a), we have appellate
jurisdiction.
I do not join in the majority’s analysis about the
applicability of FED. R. APP. P. 4(b). I do not agree that a notice
-25- of appeal filed in a civil case and entered on the civil docket of
that case can constitute a notice of appeal as to an order which
was never entered on a non-existent criminal docket. I think we
are skating on terribly thin ice when we talk about "assuming
arguendo" the applicability of either FED. R. APP. P. 4(a) or 4(b).
Those two subparts of FED. R. APP. P. 4 are inherently and logically
mutually exclusive. We just muddy the water for the trial bench
and bar when we "assume arguendo" or otherwise speculate as to
whether an order which is actually entered on a civil docket might
be deemed for certain purposes to be entered on a hypothetical
criminal docket and then assume that a notice of appeal which was
actually filed in a civil docket can be assumed to be timely as to
an order which has not yet been entered on a non-existent criminal
docket.
I think we would do the bench and bar a better service by
holding that when a district judge issues a summary contempt order
as contemplated by FED. R. CRIM. P. 42(a), that order will be
appealable under either FED. R. APP. P. 4(a) or 4(b), but not both,
depending upon the docket on which the issuing judge directs that
order to be entered of record. If the district judge does not
designate the record on which the order is to be entered, the clerk
of court should enter the summary contempt order on the docket of
the case then pending before the court in which the contumacious
conduct occurred and whether that pending case is civil or criminal
-26- will determine which of FED. R. APP. P. 4(a) or FED. R. APP. P. 4(b)
is applicable.
-27-