In Re: Gregg Phillips, No. 22-20578 (5th Cir. 2022)
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Case: 22-20578 Document: 00516555187 Page: 1 Date Filed: 11/22/2022 United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit FILED November 22, 2022 Lyle W. Cayce Clerk No. 22-20578 In re: Gregg Phillips; Catherine Engelbrecht, Petitioners. Petition for a Writ of Mandamus to the United States District Court for the Southern District of Texas USDC No. 4:22-CV-3096 Before Haynes, Engelhardt, and Oldham, Circuit Judges. † Per Curiam:* Petitioner-defendants request relief from the district court’s civilcontempt order. We previously ordered petitioners released from custody. Today we vacate the contempt order. Plaintiff in the district court, Konnech, Inc., sued petitionerdefendants for hacking Konnech’s computers. The district court then used a temporary restraining order, a preliminary injunction, and a civil-contempt order to litigate the case on Konnech’s behalf. For example, prong (v) of the now-dissolved TRO required petitioner-defendants to “identify each † * Judge Haynes concurs in the judgment only. Pursuant to 5th Circuit Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Circuit Rule 47.5.4. Case: 22-20578 Document: 00516555187 Page: 2 Date Filed: 11/22/2022 No. 22-20578 individual and/or organization involved in accessing [Konnech’s] protected computers.” App. 120. Such a demand makes perfect sense when made by a plaintiff in discovery. But the record does not reveal what sort of emergency justified the district court’s demand for that information before the parties could file Rule 12 motions, before the defendants could file an answer, before the parties could file their initial disclosures, or before discovery could begin let alone conclude in the ordinary course. See Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 24 (2008) (“A preliminary injunction is an extraordinary remedy never awarded as of right.”). Much less did the district court explain what sort of emergency could warrant jailing the petitioner-defendants for not making such immediate disclosures. Rather, the district court made clear that it was imposing its disclosure requirements because it—the district court—wanted to add defendants to the lawsuit. Resp. 13; App. 188. That is not how the Federal Rules of Civil Procedure work. It has long been settled that a party cannot be held in contempt for “disobeying an invalid order.” Donovan v. City of Dallas, 377 U.S. 408, 414 (1964); see also United States v. Dickinson, 465 F.2d 496, 513–14 (5th Cir. 1972). And here, the district court’s TRO was invalid because it disregarded the order of operations imposed by the Federal Rules. It necessarily follows that any contempt order premised on violations of the TRO was “bottomed irrevocably on a mistake of law.” Dickinson, 465 F.2d at 514. That said, the district court’s TRO has since lapsed. It was replaced by a preliminary injunction, issued on October 31, 2022. Petitioners have not yet exercised their right to appeal that injunction. See 28 U.S.C. § 1292(a)(1); Fed. R. App. P. 4(a)(1)(A) (providing 30 days to notice an appeal of the preliminary injunction). It is not clear whether the district court intends to employ any further coercive measure in connection with its prior contempt order, or in 2 Case: 22-20578 Document: 00516555187 Page: 3 Date Filed: 11/22/2022 No. 22-20578 connection with the more recent preliminary injunction. And the merits of any appeal from the district court’s preliminary injunction are not before us. Accordingly, we VACATE the contempt order because the district court premised it on the now-dissolved TRO. The case is REMANDED to the district court for further proceedings consistent with the Federal Rules. Any future appellate proceedings regarding any future contempt orders shall be directed to and decided by this panel. 3
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