Opinion
02 CIV 6441 (LAK)
April 2, 2004
ORDER
Surjit P. Soni, Esq., seeks an order permitting him to comply with Magistrate Judge Pitman's order that he pay a sanction of $69,484 to the ProQuest defendants by posting a letter of credit or a suitable bond. He contends that outright payment of the sanction would moot an eventual appeal from the order imposing the sanction, relying chiefly on In re Cordova Gonzales, 726 F.2d 16 (1st Cir. 1984), and Banger v. Philadelphia Electric Co., 419 F.2d 1322 (3d Cir. 1969).
This Court previously has declined to stay the enforcement of sanctions against Mr. Soni for reasons previously described. It would not now be inclined to adopt the measures proposed by Mr. Soni, which would delay indefinitely payment to the ProQuest defendants of compensation for the damage inflicted upon them as a result of Mr. Soni's sanctionable behavior, even if there were a substantial risk that payment by Mr. Soni would moot any subsequent appeal by him from the sanctions order. In any case, the Court is satisfied that Mr. Soni has overstated substantially the risk of any such result following from immediate payment.
In Corley v. Rosewood Care Center, Inc., 142 F.3d 1041 (7th Cir. 1998), the Seventh Circuit held precisely to the contrary of the position taken by Mr. Soni:
"We have said that when a party or its counsel are sanctioned in the course of litigation, immediate payment of the sanction is the cost the two must bear for the privilege of continuing to litigate. The propriety of the sanction may then be challenged on appeal once there is a final decision in the case, even if that is long after the sanction was paid, [citation omitted] Payment of the sanction does not moot the appeal because the appellate court can fashion effective relief to the appellant by ordering that the sum paid in satisfaction of the sanction be returned." Id. at 1057. See also Dailey v. Vought Aircraft Co., 141 F.3d 224 (5th Cir. 1998) (appeal from order disbarring attorney for non-payment of Rule 11 sanctions not mooted by subsequent reinstatement to the Bar and payment of the sanctions).
The cases upon which Mr. Soni relies do not warrant a different conclusion. To be sure, the First Circuit In re Cordova Gonzalez, 726 F.2d 16 (1st Cir. 1984), held moot an appeal from a civil contempt order where the contemnor had purged himself of the contempt by payment of the contempt fine. But the First Circuit subsequently made clear that the case became moot because the contemnor paid the fine unconditionally. In a subsequent case involving similar facts, the court rejected a mootness contention because the contemnor had transmitted the sanction payment with a letter that asked the recipient to place in the money in escrow pending appeal, thus evidencing the contemnor's intent to challenge the contempt order at a later date rather than unconditional submission. Rhode Island Hospital Trust National Bank v. Howard Comm. Corp., 980 F.2d 823, 829 n. 9 (1st Cir. 1992). Thus, even if the First Circuit's view applied here, which it does not, Mr. Soni would have means open to him to pay immediately without mooting an eventual appeal.
Banger, the other case cited by Mr. Soni, held a sanctions appeal moot in light of payment of the monetary sanction to the United States, which was not a party to the action. It observed also, rather Delphicly, that "procedures are available [to a sanctioned attorney or parry] which will enable him to have his contention reviewed by this court, without running afoul of the bar of mootness." 419 F.2d at 1323. If the Third Circuit there was suggesting a payment under protest or a reservation of rights, as in Rhode Island Hosp. Trust, the case does not support Mr. Soni. The same would be true of the decision turned on the fact that the sanction had been paid to the United States as opposed to an adversary in the litigation. Regardless, however, the lack of any reasoned consideration of the mootness issue in Banger renders the case unpersuasive to this Court.
This Court is persuaded that payment of the long overdue sanction now is important to the proper handling of this litigation, even if there were a meaningful risk that such a payment necessarily would moot a subsequent appeal. It is persuaded also that Mr. Soni has means available to him to make the payment without creating a meaningful risk of mootness.
It is ORDERED that counsel to whom this Order is sent is responsible for faxing a copy to all counsel and retaining verification of such in the case file. Do not fax such verification to Chambers
Accordingly, the application is denied.
SO ORDERED.