United States v. Anduze-Montano

• Court: Court of Appeals for the First Circuit
• Decided: January 5, 1994
• Docket: 93-1554
• Status: Published

Opinion

USCA1 Opinion

UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT

____________________

No. 93-1554 

                              UNITED STATES OF AMERICA,

                                 Plaintiff, Appellee,

                                          v.

                          789 CASES OF LATEX SURGEON GLOVES,

                                 Defendant, Appellee,

__________

                                HARRY ANDUZE-MONTANO,
                                      Appellant.

                                 ____________________

                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                           FOR THE DISTRICT OF PUERTO RICO

[Hon. Jaime Pieras, Jr., U.S. District Judge]
                                             ___________________

                                 ____________________

                                        Before

                                 Breyer, Chief Judge,
                                         ___________
                         Torruella and Selya, Circuit Judges.
                                              ______________

                                 ____________________

            Guillermo Ramos Luina on brief for appellant.
            _____________________

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                                  December 30, 1993
                                 ____________________

TORRUELLA, Circuit  Judge.  The question  before us
                                 ______________

            is   whether  the  district  court,  under  its  inherent  or

            supervisory powers, properly  ordered an attorney to  pay the

            court reporter for a trial transcript.  We conclude the order

            must be reversed.

                                          I.
                                          _

                      Appellant is an attorney who represented a claimant

            in a forfeiture action.  At  the close of the 13-day non-jury

            trial in that  case, the court asked the  reporter to prepare

            the  transcript on  an expedited  basis  so that  the parties

            could  use it  in preparing  post-trial  memoranda.   Several

            months  later, before  the district  court  had rendered  any

            decision,  appellant moved to withdraw explaining that he had

            been unable to  communicate with his client, he  had not been

            paid for  his services, and  the client had not  produced the

            funds  for the trial  transcript.   The district  court judge

            issued an  order holding the  motion to withdraw  in abeyance

            until new counsel  filed an appearance.   Three weeks  later,

            the  court  reporter  asked  the  court  to  order  appellant

            personally  to pay  $4,519 for  the trial  transcript he  had

            ordered,  but  not  yet  picked  up.    Appellant  filed   no

            opposition to the court reporter's  motion, and a month later

            the judge  issued an order  requesting appellant  to pay  the

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reporter within the week.1   The same day, the judge rendered

            his  decision  in   the  forfeiture  action,  found   against

            appellant's  client, and ordered the articles destroyed.  The

            next month, the court reporter said she had not been paid and

            asked the  court to enforce  its August 19 order.   Appellant

            opposed  and sought reconsideration  of the August  19 order.

            He explained that the transcript  had been ordered on  behalf

            of his client,  but he had been unable to  collect either his

            own fee or  the transcript amount.  Moreover,  he argued that

            the  court lacked jurisdiction  over him with  respect to the

            demand for payment.

                      The    district    court    rejected    appellant's

            jurisdictional argument, explaining,  without citation to any

            authority, as follows:

                      The Court's power to order an attorney to
                      pay for stenographic transcripts which he
                      has  ordered  from   the  official  court
                      reporter   stems    from   the    summary
                      jurisdiction  possessed  by  courts  over
                      attorneys as their  officers.  The courts
                      have  always  possessed  jurisdiction  to
                      compel an attorney to observe the  duties
                      incident  to  his  professional relations
                      towards  his  clients,  and  towards  the
                      other  officers of  the Court,  including
                      court  reporters.  It  is a court's right

____________________

            1.  The order, dated August 19, 1992, read as follows:

                      Order  to  Att.  Harry  Anduze --  Please
                      proceed to  pay Mrs. Barbara  Dachman the
                      sum  of  $4,519.00  for her  services  as
                      requested  in  motion   subject  of  this
                      order.   Payment  should be  made  on  or
                      before August 26, 1992.

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and duty to supervise attorneys and court
                      reporters in their  actions pertaining to
                      matters concerning litigation  before the
                      court, as they are  both officers of  the
                      court.  Thus, the  Court has jurisdiction
                      over attorney  Anduze even though  he has
                      not been served with process.

            United States v. 789 Cases  of Latex Surgeons' Gloves, 826 F.
            _____________    ____________________________________

            Supp. 589, 590 (D.P.R. 1993).  With regard to the merits, the

            court  acknowledged  the  existence of  contrary  views,  but

            adopted the following rule:

                      [T]he Court believes that  in the absence
                      of express notice to the contrary,  court
                      officials and  persons connected,  either
                      directly or indirectly  with the progress
                      of   litigation,   may    safely   regard
                      themselves as dealing  with the attorney,
                      rather than with the client. . . .  There
                      is nothing  unfair about  this rule,  the
                      Court agrees  with [Monick  v. Melnicoff,
                                          ______     _________
                      144  A.2d 381 (D.C.  Mun. Ct. App. 1958)]
                      in that:

                           If  an attorney  in ordering  a
                           transcript or a  brief does not
                           intend    to    bind    himself
                           personally,   he   may    avoid
                           responsibility  by  making  his
                           position clear.  The reporter .
                           .  .  then  on  notice  of  the
                           nonliability  of the  attorney,
                           may take such steps as he feels
                           are    necessary    for     his
                           protection   before   extending
                           credit to a client whose credit
                           standing and responsibility are
                           often wholly unknown to him.

            789 Cases,  826 F. Supp.  at 590-91.  While  neither side had
            _________

            cited any Puerto Rico law  on the subject, the court  did not

            determine   how  a  Puerto   Rico  court  would   decide  the

            contractual dispute because  it believed the matter  could be

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"resolved independently of  local law," id., at 590  n.3, and
                                                    ___

            it ordered appellant to pay the court reporter.2

                      Appellant  has now appealed  from the May  12, 1993

            payment order.

                                         II.
                                         __

                      We  deal first with a jurisdictional question.  The

            court reporter argues no timely appeal from the final payment

            order has been filed and  hence we should dismiss the appeal.

            She contends that  the payment order  was the court's  August

            19,  1992 order quoted  in note one,  that appellant's motion

            for reconsideration,  filed on  September 22,  1992 past  the

            period provided in Rule 59(e), would not have tolled the time

            for appealing from  the August 19, 1992 under  the version of

            Fed. R. App. P. 4(a)(4) in effect prior  to December 1, 1993;

            and that appellant's  May 24, 1993 notice of  appeal from the

            court's  May  12,  1993  order  denying  reconsideration  and

            ordering payment does not bring before us the August 19, 1992

            order.    Under  the principle  that  a  post-judgment motion

            asking  the court to change its disposition solely because of
                                                        ______

            legal  error must  be  brought under  Rule  59(e) within  the

            rule's  10-day  period, Rodriquez-Antuna  v.  Chase Manhattan
                                    ________________      _______________

            Bank Corp., 871 F.2d  1, 2 (1st Cir. 1989) (dispute  over how
            __________

____________________

            2.  We point  out that  we take no  position on  the question
            whether the substantive rule of  decision in a case like this
            derives from  federal or state  law.  See Mathewson  Corp. v.
                                                  ___ ________________
            Allied Marine Indus.,  Inc., 827 F.2d 850, 853  n.3 (1st Cir.
            ___________________________
            1987).

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statute  of limitations  should  be  computed not  cognizable

            under Rule 60(b));  Silk v. Sandoval, 435  F.2d 1266, 1267-68
                                ____    ________

            (1st Cir.) ("If  the court merely wrongly decides  a point of

            law,  that  is  not  `inadvertence,  surprise,  or  excusable

            neglect'" within the meaning of Rule 60(b)(1)), cert. denied,
                                                            ____________

            402 U.S. 1012 (1971), the appeal from the May  12, 1993 order

            would avail appellant nothing, the argument would continue.

                      We disagree for two reasons.  First, the August 19,

            1992 order was arguably precatory.  It did not clearly direct

            payment,  but  rather  asked  appellant  to  please  pay  the

            reporter, a phrasing which may  have led appellant to believe

            the  directive did  not carry  the  force of  a normal  court

            order.   Second,  Rodriquez-Antuna  does  not  apply  because
                              ________________

            appellant did not simply argue that the August 19, 1992 order

            was infected by  error of substantive law.  Rather, appellant

            advanced a  non-frivolous argument  that the  order was  void

            because the court lacked jurisdiction to order him to pay the

            court reporter, a matter  the district court had  not earlier

            addressed.   Under these circumstances, we conclude that even

            if the August 19, 1992 order was a final judgment  from which

            an immediate appeal could have been filed, appellant's motion

            for reconsideration was properly  entertainable under Fed. R.

            Civ. P. 60(b).  As appellant filed a timely notice of  appeal

            from the court's  May 12, 1993 order  denying reconsideration

            and ordering appellant to pay the court reporter, we deny the

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court reporter's  motion to  dismiss and  motion for  further

            briefing time and proceed to the merits.

                                         III.
                                         ___

                      Some courts,  applying agency  principles, conclude

            an  attorney is not liable for  litigation expenses absent an

            express  or  implied  undertaking to  be  bound,  while other

            courts  treat the attorney,  rather than  the client,  as the

            principal  and impose  liability on  the  attorney absent  an

            express disclaimer  of responsibility.   See  Jay M.  Zitter,
                                                     ___

            Annotation,  Attorney's   Personal  Liability   for  Expenses
                         ________________________________________________

            Incurred in  Relation to Services  for Client, 66  A.L.R. 4th
            _____________________________________________

            256,  262  (1988)   (surveying  the  variety   of  approaches

            followed).  Here the district court purported to exercise its

            supervisory powers to devise a uniform rule to be followed in

            the federal district court in Puerto Rico and applied the new

            rule   to  conduct   pre-dating   the  rule's   announcement.

            Regardless of  whether federal or state law supplies the rule

            of  decision (a  matter on which  we do not  opine, see supra
                                                                ___ _____

            n.2), and regardless  of which of the surveyed  approaches to

            an attorney's  payment responsibility  represents the  better

            view, we think the district court's handling of the situation

            did not satisfy the demands of fundamental fairness.

                      The  situation  is  similar  to that  presented  in

            Boettcher  v.  Hartford Ins.  Group,  927 F.2d  23  (1st Cir.
            _________      ____________________

            1991).  There, the district court invoked its inherent powers

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to impose jury costs on a plaintiff and her attorney who  had

            settled on the morning of trial after jurors had reported for

            duty.   No  local rule  provided for  jury costs  under those

            circumstances,  and  counsel  had  had  no  notice  prior  to

            settling that jury  costs would be imposed.   We reversed the

            sanction because it was unfair for the court to  use the case

            as  the first step  in adopting a  new rule.   The "[l]ack of

            fair notice  is fatal to  [the court's] exercise  of inherent

            power . .  ..  The law forbids  the imposition of a  new rule

            without prior notice," we explained.  Id. at 26.
                                                  ___

                      We think the same is true here.  The district court

            has no written local rule imposing liability on attorneys for

            transcripts they order,3 and hence  the court should not have

            invoked  its  inherent  powers  to  resolve  the  "transcript

            payment" dispute summarily.

                      The May 12,  1993 order directing appellant  to pay

            the court reporter is reversed.
                                  ________

____________________

            3.  We do  not purport to pass upon  the validity of any such
            rule, were one to  be adopted.  Similarly, we  do not express
            any view on  what remedial avenues remain open  to the unpaid
            court reporter.

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