In Re Joint Eastern & Southern Districts Asbestos Litigation.in the Matter of Johns-manville Corporation, et al., Debtors.bernadine K. Findley, As Executrix of the Estate of Hilliardfindley, et al., Plaintiffs, v. Donald M. Blinken, et al., Defendants.appeal of James Walker, 22 F.3d 755 (7th Cir. 1994)

Attorney James Walker was held in contempt in consolidated bankruptcy proceedings in the United States District Courts for the Southern and Eastern Districts of New York. He was ordered to pay a monetary fine. That judgment of contempt was registered in the Central District of Illinois and proceedings were commenced to collect on that judgment. Mr. Walker resisted, principally through a motion for relief under Rule 60(b) (4) of the Federal Rules of Civil Procedure and through a motion to quash the citation to discover assets. Unsuccessful in these efforts, he subsequently filed a notice of appeal. This matter is before us in appeal No. 92-3568.

Pursuant to the order of the district court, an examination to discover assets was later conducted before a United States Magistrate Judge. Mr. Walker refused to answer certain questions at this proceeding; the district court accordingly held him in civil contempt and imposed upon him a conditional sentence of imprisonment. Mr. Walker appeals this contempt ruling in appeal No. 93-3217. For the reasons that follow, we dismiss both appeals for want of jurisdiction.

* BACKGROUND

The matter before us is the consolidation of two appeals which are tangential to the asbestos litigation conducted jointly by the United States District Courts for the Southern and Eastern Districts of New York (the "Rendering Courts").¹  Mr. Walker represented certain plaintiffs in that matter. During the course of that litigation, the Rendering Courts held Mr. Walker in contempt for knowingly violating two injunctions. The issue of imposing sanctions was referred to a Magistrate Judge and, on September 3, 1991, the Rendering Courts entered judgment, ordering that Mr. Walker be sanctioned in the amount of $81,655.01 plus interest. Mr. Walker did not appeal that order to the United States Court of Appeals for the Second Circuit.

On October 21, 1991, Manville Trust ("the Trust"), whose assets are supervised by the Rendering Courts in the asbestos litigation, brought proceedings to collect the contempt sanctions imposed on Mr. Walker. The Trust registered the New York judgment in the United States District Court for the Central District of Illinois pursuant to 28 U.S.C. § 1963.²  Pursuant to Rule 69(a)³  of the Federal Rules of Civil Procedure, it also filed a motion in that court for an order of citation to discover Mr. Walker's assets. On the same date, the citation was issued. On November 18, 1991, Mr. Walker filed motions to quash the citation and to dismiss the supplementary proceedings, and a request pursuant to Rule 60(b) (4) of the Federal Rules of Civil Procedure for determination that the registered foreign judgment is void.⁴ 

On August 26, 1992, the district court denied, without prejudice to refile in the Rendering Courts, Mr. Walker's several challenges to the validity of the Rendering Courts' underlying contempt sanctions judgment.⁵  See In re Joint Eastern & Southern Dists. Asbestos Litig., 800 F. Supp. 643 (C.D. Ill. 1992). It noted that the Rendering Courts had previously addressed the issues raised by Mr. Walker, and found that "both judicial comity and the pursuit of efficient judicial administration dictate that Walker's opposition to the enforcement of judgment based on subject matter jurisdiction, personal jurisdiction, the restrictions of the Anti-Injunction Act and the actions of Magistrate Judge Caden be referred to the rendering Courts for review." Id. at 646. Because these efforts were denied without prejudice, Mr. Walker had the option of refiling in the Rendering Courts.

The district court then denied with prejudice Mr. Walker's motion to quash the citation. Mr. Walker contended that the citation failed to state expressly that the citation hearing would be conducted by the rules governing depositions, as required by Illinois Supreme Court Rule 277(e).⁶  The district court disagreed: It stated, "It is clear from the face of the citation that the hearing would occur in accordance with the rules governing depositions." Id. at 647. The district court then set the date for Mr. Walker's citation hearing.

After numerous delays, Mr. Walker appeared with counsel for citation examination before a magistrate judge in the Central District of Illinois on August 3, 1993. He refused, however, to answer any questions, and he therefore was held in contempt.⁷  On September 14, 1993, following a hearing, the district court determined that Mr. Walker's refusal to answer questions warranted the imposition of sanctions. In re Joint Eastern & Southern Dists. Asbestos Litig., 830 F. Supp. 1153, 1155 (C.D. Ill. 1993). After considering Mr. Walker's past conduct,⁸  the court concluded that "the appropriate sanction would be imprisonment conditioned on cooperation with the Manville Trust in the discovery process." Id. Consequently the court issued an order holding Mr. Walker in civil contempt for failure to comply with the citation and remanding him into custody until he should decide to cooperate with the Manville Trust concerning the citation to discover his assets. Id. at 1156. The court further indicated its willingness to stay the confinement order upon the posting of a supersedeas bond within 48 hours. Mr. Walker did file the supersedeas bond.⁹  He has not, as far as the record before us reveals, refiled his claims concerning the underlying judgment in the Rendering Courts. He now appeals to this court both orders of the United States District Court for the Central District of Illinois.

II

ANALYSIS

From the beginning of this case, we have questioned our jurisdiction to review this appeal.¹⁰  Courts of appeals have jurisdiction over appeals from all final decisions of district courts. 28 U.S.C. § 1291. The judgment of a district court is final if it "ends the litigation on the merits and leaves nothing for the court to do but execute the judgment." Catlin v. United States, 324 U.S. 229, 233, 65 S. Ct. 631, 633, 89 L. Ed. 911 (1945). We now shall turn to an examination of whether we have the authority to hear either of these appeals.

The first appeal, No. 92-3568, brings to this court the decisions of the district court of August 26, 1992. In essence, these decisions denied without prejudice Mr. Walker's motion for dismissal of the judgment of contempt entered against him by the Rendering Courts. As we have noted earlier, this denial was without prejudice to its being renewed before the Rendering Courts. The district court also determined that the citation to discover assets was without procedural infirmity and need not be quashed.

At the outset, we set forth the fundamental principles that our earlier cases establish for determining whether an order entered in a postjudgment proceeding may be appealed to this court. Perhaps the most fundamental of these principles, rooted firmly in our cases, is that a postjudgment proceeding, for purposes of appeal, must be viewed as a separate lawsuit from the action which produced the underlying judgment. Consequently, the requirements of finality must be met without reference to that underlying judgment. Resolution Trust Corp. v. Ruggiero, 994 F.2d 1221, 1224 (7th Cir. 1993); SEC v. Suter, 832 F.2d 988, 990 (7th Cir. 1987); King v. Ionization Int'l, Inc., 825 F.2d 1180, 1184-85 (7th Cir. 1987). A postjudgment order is final, then, if it disposes completely of the issues raised. Accordingly, we have joined every other circuit¹¹  to have considered the question in holding that, as a general rule, an order authorizing discovery in aid of execution of judgment is not appealable until the end of the case. Central States Southeast & Southwest Areas Pension Fund v. Express Freight Lines, Inc., 971 F.2d 5, 6 (7th Cir. 1992). The denial of a motion to quash the citation proceeding simply lets the proceeding continue and therefore is not final or appealable. See id. (explaining that the denial of a postjudgment discovery order is appealable but that the granting of the discovery is not). Applying the general rule that, when determining the appealability of a postjudgment collection proceeding, the measure of finality is assessed not at the entry of the underlying judgment but at the end of the separate proceeding to execute or enforce that judgment for the payment of money, we stated:

A postjudgment order might seem final by definition because the judgment is already behind it. But there are judgments and there are judgments.... A contested collection proceeding will end in a judgment or series of judgments granting supplementary relief to the plaintiff. The judgment that concluded the collection proceeding is the judgment from which the defendant can appeal.

Central States, 971 F.2d at 6 (emphasis added) (citations omitted).

Since deciding Central States, this court has revisited the issue and suggested that there might be circumstances in which a discovery order, like one emanating from a citation hearing, might be final and appealable:

Often the sole object of such a proceeding is discovery of the judgment debtor's assets, since once they are discovered the judgment creditor may levy on them without obtaining a further court order. Ill.Rev.Stat. ch. 110, p 2-1501. And an order that is the terminus of the case in the district court is final for purposes of appeal even if it is not a conventional judgment--even if it commences a proceeding in another forum.

Resolution Trust, 994 F.2d at 1225. The facts of Resolution Trust afforded the court no opportunity to delineate the contours to this possible exception to the general rule. This case also affords no occasion for its concrete application. The circumstances surrounding the ruling of the district court make it clear that the court did not regard its ruling as a final disposition of the matter before it. Indeed, in its subsequent order, the district court recognized explicitly the lack of finality of this earlier ruling when it referred to this appeal as "unripe." In re Eastern & Southern Dists. Asbestos Litig., 830 F. Supp. 1153, 1154 (C.D. Ill. 1993); cf. Rosser v. Chrysler Corp., 864 F.2d 1299, 1304 (7th Cir. 1988) (holding that there is no appellate jurisdiction "where the district court contemplates further proceedings"). Indeed, Mr. Walker's subsequent actions make it clear that he did not consider the district court's denial of the motion to quash to be the last word. He subsequently filed a motion to set off, in which he requested that the sanctions be paid out of client funds in another case which had allegedly been assigned to him. We also must note the possibility that there would be additional proceedings with respect to the motion for relief under Rule 60(b) (4), if Mr. Walker decided to pursue the matter in the Rendering Courts. This contingency added another factor of uncertainty that made the decision of the district court on August 26, 1992 anything but a final disposition of the Manville Trust's effort to enforce the judgment it had registered in the district court.

We must also explore the possibility that the part of the district court's decision that denied the motion for relief under Rule 60(b) (4) is severable from the remainder of its decision and appealable in its own right. The district court denied the motion without prejudice to its renewal in the Rendering Courts. It ruled that the issue of the validity of the Rendering Court's judgment was most appropriately addressed, as a matter of comity and sound judicial administration, by the court that had rendered the judgment. The district court pointed out that these considerations were especially important in the case of a contempt judgment:

In the instant case, Walker seeks to oppose, in a foreign jurisdiction, the consequences of behavior which the rendering Courts found sufficient to warrant a finding of contempt and the imposition of sanctions. This court finds that in the absence of glaring irregularities, comity demands that it respect such a decision.

800 F. Supp. at 646-47. The district court further noted that the Rendering Courts had addressed thoroughly both of the contentions raised by Mr. Walker in his Rule 60(b) (4) motion.

Whether Mr. Walker can appeal the decision of the district court to defer to the Rendering Courts with respect to the Rule 60(b) (4) motion is an issue that this circuit has confronted only once, in Fuhrman v. Livaditis, 611 F.2d 203 (7th Cir. 1979). On that occasion, the court simply followed, without discussion, the earlier holding of the United States Court of Appeals for the Second Circuit in United States ex rel. Mosher Steel Co. v. Fluor Corp., 436 F.2d 383 (2d Cir. 1970), cert. denied, 402 U.S. 945, 91 S. Ct. 1623, 29 L. Ed. 2d 114 (1971). In Fluor, the Second Circuit determined that such a decision was appealable because it was analogous to the decision of a district court to dismiss an action on the grounds of forum non conveniens. In reaching this decision, the Second Circuit acknowledged that the common law doctrine of forum non conveniens has been substantially replaced by transfer jurisdiction under 28 U.S.C. § 1404(a).¹²  Fluor, 436 F.2d at 385 n. 1. The court also acknowledged that the practical effect of denial of the motion at issue was similar to the denial of the nonappealable decision to deny transfer under Sec. 1404(a). Id. at 384. Nevertheless, without further explanation, the court determined that "the more compelling analogy" was to the appealable decision to grant a dismissal on the ground of forum non conveniens.¹³  Id.

We find ourselves in respectful disagreement with this decision. As we see it, the most appropriate analogy is to the transfer statute, rather than to the common law doctrine of forum non conveniens.¹⁴  Several considerations lead us to this conclusion. First, we believe that the decision to defer to the court of rendition with respect to the disposition of a Rule 60(b) (4) motion is guided by essentially the same criteria that guide a decision to grant a transfer under Sec. 1404(a). Under that statute, a district court may transfer a case to another federal district or division "where it might have been brought" if the court determines that such a transfer is " [f]or the convenience of parties and witnesses" and "in the interest of justice." While modeled to some degree on the doctrine of forum non conveniens, this statutory transfer jurisdiction was clearly intended to vest in the transferor court more discretion than it had been permitted to exercise under the common law doctrine because "the harshest result of the application of the old doctrine ..., dismissal of the action, was eliminated by the provision." Norwood v. Kirkpatrick, 349 U.S. 29, 32, 75 S. Ct. 544, 546, 99 L. Ed. 789 (1955); see also Piper Aircraft Co. v. Renyo, 454 U.S. 235, 253, 102 S. Ct. 252, 264-65, 70 L. Ed. 2d 419 (1981). As the Supreme Court put it in Van Dusen v. Barrack, " [s]ection 1404(a) reflects an increased desire to have federal civil suits tried in the federal system at the place called for in the particular case by considerations of convenience and justice." 376 U.S. 612, 616, 84 S. Ct. 805, 809, 11 L. Ed. 2d 945 (1964) (footnote omitted).

Similar considerations must guide the determination of the district court in its decision not to entertain a Rule 60(b) (4) attack on a judgment originally rendered in another district but now registered on its own docket for purposes of enforcement.¹⁵  Indeed, in Fuhrman, 611 F.2d at 204-05, we noted the policy considerations that ought to guide a registration court's decision to defer to the rendering court. We noted that considerations of convenience, comity and efficient judicial administration were the controlling factors.¹⁶  Id. at 204-05. These factors closely approximate the factors that govern the decision to transfer a case from one district or division to another under 28 U.S.C. § 1404(a).

More fundamentally, the decision to defer to the rendering court when its judgment is attacked in the registration court is most realistically viewed as a decision of sound judicial administration rather than as a juridical act having the consequences of finality that require further review by an appellate tribunal. It is a necessary concomitant of the expedited system of judgment registration provided by 28 U.S.C. § 1963. The decision to defer to the rendering forum deprives no litigant of the opportunity to have the claim fairly adjudicated by a federal tribunal. It merely assures that judicial resources are correctly allocated and that the litigant is not able to shop for a more favorable forum that may be more disposed to his claim because it is less familiar with it.

Finally, in determining whether this decision of the district court to defer to the rendering courts is within our appellate jurisdiction, we must take into account that, since the decision of the Second Circuit in Fluor, we have received a good deal of additional guidance on the matter of "finality" from the Supreme Court of the United States. On several occasions in recent years, the Court has emphasized that allowing interlocutory appeals comes at a significant price. Resolution of the principal litigation is delayed, often significantly. The authority of the district court to supervise litigation is undermined, and the trial court loses the firm hand that is necessary to assure that the litigation stays on track, even when one of the parties would prefer a more leisurely resolution or no resolution at all. See Stringfellow v. Concerned Neighbors in Action, 480 U.S. 370, 380, 107 S. Ct. 1177, 1184, 94 L. Ed. 2d 389 (1987); Richardson-Merrell, Inc. v. Koller, 472 U.S. 424, 430-31, 105 S. Ct. 2757, 2760-61, 86 L. Ed. 2d 340 (1985); Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 374, 101 S. Ct. 669, 673, 66 L. Ed. 2d 571 (1981). Both of these considerations are of significant importance in the situation before us. The task of the district court in this case was to give effect to the congressional mandate that animates 28 U.S.C. § 1963, the statute that permits the judgment of one district to be registered and enforced in another. The purpose of this statute is "to simplify and facilitate collection on valid judgments." Coleman v. Patterson, 57 F.R.D. 146, 149 (S.D.N.Y. 1972). As the Senate Judiciary Committee noted while considering an amendment to the statute in 1954:

[R]egistration of judgments in other districts is a modern legal device. It assists judgment creditors by making it possible for them to pursue the property of a debtor in satisfaction of a judgment by the ordinary process of levying execution on a judgment in any district where the judgment is registered. The result is that both creditors and debtors are relieved of the additional cost and harassment of further litigation which would otherwise be required by way of an action on the judgment in a district other than that where the judgment was originally obtained.

S.Rep. No. 1917, 83rd Cong., 2d Sess. (1954), reprinted in 1954 U.S.C.C.A.N. 3142, 3142.¹⁷ 

In our view, therefore, it is difficult to see how this legislative purpose can be effectuated if the enforcement process is retarded by appellate proceedings to review the decision of the registration court to defer to the forum that knows the case best and where, in all likelihood, the merit of that collateral attack can be reviewed most expeditiously.¹⁸ 

Finally, we note that, although it is possible for a court of appeals to review a discovery order through a writ of mandamus, that device is reserved for extraordinary circumstances. Gulfstream Aerospace Corp. v. Mayacamus Corp., 485 U.S. 271, 289, 108 S. Ct. 1133, 1143-44, 99 L. Ed. 2d 296 (1988). Among the criteria that the petitioner must meet are a showing that the relief requested cannot be achieved in any other way and that he has a clear and indisputable right to that relief. Kerr v. United States Dist. Court, 426 U.S. 394, 403, 96 S. Ct. 2119, 2124, 48 L. Ed. 2d 725 (1976); Matter of Sandahl, 980 F.2d 1118, 1119 (7th Cir. 1992); see also Powers v. Chicago Transit Auth., 846 F.2d 1139, 1142-43 (7th Cir. 1988) (discussing application of criteria in discovery context). There can be little question that these stringent criteria are not met in this case. Certainly, Mr. Walker has not established a clear and indisputable right to the relief that he seeks. The decision of the district court in Illinois to defer to the Rendering Courts was a common-sense decision that is consonant with the usual approach of district courts asked to review the judgment of another district now registered for purposes of collection. As the district court pointed out, its decision in this case was especially appropriate because the registered judgment had been entered by the Rendering Court as a result of a contempt proceeding and because it also appeared that the contentions of Mr. Walker had already been considered by that court. There is no basis that would justify the invocation of our mandamus power.

We now consider whether the district court's second order, the civil contempt ruling against Mr. Walker, is appealable. We suggested in Central States that a person ordered to produce material in a postjudgment discovery proceeding, "if desperate for an immediate appeal, can disobey the order and appeal the resulting judgment for criminal contempt." Id. (emphasis added).¹⁹  In this instance, however, we are dealing with a judgment of civil contempt. We have held "that an order of civil contempt enforcing a discovery order in supplementary proceedings is ... unappealable." Resolution Trust Corp. v. Ruggiero, 987 F.2d 420, 421 (7th Cir. 1993) (per curiam). This rule is based on the established principle that an order holding a party in civil contempt is not a final decision for purposes of Sec. 1291. Powers v. Chicago Transit Auth., 846 F.2d 1139, 1141 (7th Cir. 1988) (collecting cases). We commented in that opinion that thoughtful members of the legal profession have suggested that the different treatment accorded criminal and civil contempts is not appropriate. Id. However, as we noted in In re Witness Before the Special October 1981 Grand Jury, 722 F.2d 349, 351 (7th Cir. 1983), and confirmed in Powers, 846 F.2d at 1141, this rule is not a matter that we are free to change on our own.²⁰ 

Finally, we note that the parties do not suggest that, because the judgment of contempt included a sentence of imprisonment, our jurisdiction might be premised on the Recalcitrant Witness Statute, 28 U.S.C. § 1826.²¹  We believe this omission is well taken. That statute does not provide an appropriate predicate for our jurisdiction. As a noted treatise has explained, the requirements of that statute are "quite separate from the final judgment rule." 15B Charles A. Wright et al., Federal Practice and Procedure Sec. 3917, at 410 (1976). Indeed, the legislative history specifically notes that the statute was intended "to codify present practice," including, we must assume, the party witness exception to the right to appeal. The plain language of the statute, moreover, does not confer a right to appeal, but simply regulates how a preexisting right to appeal ought to be prosecuted.²²  Accordingly, we must conclude that the district court's judgment of civil contempt is not reviewable in this court because it is not a final judgment.

Conclusion

The two judgments consolidated for appeal before us are not final judgments within the meaning of Sec. 1291. Nor does this case present a situation that would justify the use of the extraordinary remedy of mandamus. Accordingly, the appeals are dismissed for want of appellate jurisdiction.

DISMISSED.