Opinion
No. 09-2111-cr.
February 11, 2010.
Appeal from the United States District Court for the Eastern District of New York (Spratt, J.).
ON CONSIDERATION WHEREOF, it is hereby ORDERED, ADJUDGED, and DECREED that this appeal is DISMISSED in part, but the order of the district court be and hereby is AFFIRMED in all other respects.
Jeffrey Herzberg, Zinker Herzberg, LLP, Smithtown, N.Y., for Appellant.
Bonni J. Perlin, Assistant United States Attorney (Varuni Nelson, Beth P. Schwartz, Margaret M. Kolbe, Assistant United States Attorneys, on the brief), for Benton J. Campbell, United States Attorney for the Eastern District of New York, Brooklyn, N.Y., for Appellee.
SUMMARY ORDER
On February 23, 2009, in an effort to collect on a restitution judgment with respect to Stephen Ceparano ("Stephen"), the Government issued a subpoena duces tecum and a restraining notice upon Dorothy Ceparano ("Dorothy"), Stephen's wife. On April 7, 2009, Dorothy filed a motion seeking to vacate the restraining notice and quash the subpoena, and requesting a declaration that the United States had no interest or cause of action against her with respect to a property Dorothy owned at 17 Lipson Court, East Northport, New York or its sale proceeds. On May 13, 2009, the district court denied the motion in its entirety. This appeal followed. We assume the parties' familiarity with the facts and specification of issues on appeal.
As an initial matter, we do not reach the question of whether the district court properly denied Dorothy's motion to quash the subpoena because we lack jurisdiction to consider the issue. A denial of a motion to quash a subpoena is not directly appealable until the movant is held in contempt for having defied the subpoena. See Dynegy Midstream Serv., LP v. Trammochem, 451 F.3d 89, 92 (2d Cir. 2006) ("a district court's decision to compel compliance with a subpoena or to deny a motion to quash a subpoena is generally not a `final decision' and therefore is not immediately appealable") (quoting Stolt-Nielsen SA v. Celanese AG, 430 F.3d 567, 574 (2d Cir. 2005)); United States v. Constr. Prods. Research, Inc., 73 F.3d 464, 469 (2d Cir. 1996) ("To obtain appellate review, the subpoenaed party must defy the district court's enforcement order, be held in contempt, and then appeal the contempt order, which is regarded as final under [28 U.S.C.] § 1291."). The parties do not contest this Court's lack of jurisdiction and we do not discuss it further here.
As to Dorothy's motion to vacate the restraining notice, we dismiss the appeal as moot in light of the Government's representation that the current restraining notice will expire on or around February 23, 2010, and that it has no plans to serve a renewed restraining notice at the present time.
Finally, we affirm the district court's denial of Dorothy's request for a declaratory judgment, but without prejudice to the initiation of a separate action to quiet title with respect to movant's property at 17 Lipson Court, East Northport, New York.
We have considered movant's remaining arguments and find them to be without merit.
For the foregoing reasons, this appeal is DISMISSED in part, but the order of the district court is AFFIRMED in all other respects.