900 F. 2d 262 - California Pacific Research v. Z Lederman I
900 F2d 262 California Pacific Research v. Z Lederman I
900 F.2d 262
Unpublished Disposition
NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.
CALIFORNIA PACIFIC RESEARCH, Plaintiff-counterdefendant-Appellee,
v.
Hal Z. LEDERMAN, Defendant-Appellant,
and
Pantron I Corporation, Defendant-counterclaimant-Appellant.
No. 88-6640.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted March 6, 1990.
Decided April 19, 1990.
Before DAVID R. THOMPSON and TROTT, Circuit Judges, and MALCOLM F. MARSH,* District Judge.
MEMORANDUM**
SUMMARY
Pantron I Corp. appeals the district court's Order adopting the Report of Special Master, Findings and Recommendations. We remand because the Order does not constitute a final judgment as required for review under 28 U.S.C. Sec. 1291 (1982).
DISCUSSION
To constitute a final, appealable judgment, an order responding to a contempt motion must completely dispose of the contempt motion. See Sportmart, Inc. v. Wolverine World Wide, Inc., 601 F.2d 313, 315-16 (7th Cir.1979) (emphasis added) ("most post-judgment orders are final decisions within the ambit of 28 U.S.C. Sec. 1291 as long as the district court has completely disposed of the matter"; denial of contempt motion reviewable where no further action by district court necessary to "quicken" denial); Sanders v. Monsanto, 574 F.2d 198, 199 (5th Cir.1978) (denial of contempt motion based on consent decree "final and reviewable because no further district court action is required to give life to the denial"). Thus, the order regarding a contempt motion must at least include a finding of contempt and imposition of sanctions (or a finding of no contempt).
The Special Master's Report as adopted by the district court found that appellant, but not appellee, had violated the Judgment Pursuant to Stipulation ("Consent Judgment"), but expressly reserved until later recommendations as to contempt findings and sanctions. Thus, the district court's Order contained no contempt findings, sanctions, or clear statement of disposition as to the contempt motions. Accordingly, it did not dispose of the contempt motions it addressed and was not final. Although the district court in verbally adopting the Special Master's Report may have believed that the Report contained contempt findings, see CR 151:66, and reserved only the fixing of sanctions, and appellant contends the Order implicitly contained contempt findings, we will not infer such findings. To constitute a final judgment, an order on a contempt motion must contain a clear disposition of the motion, including both a contempt finding and sanction or finding of no contempt. See Motorola, Inc. v. Computer Displays International, Inc., 739 F.2d 1149, 1154 (7th Cir.1984).1
Appellant argues that the court's alleged denial of its contempt motion and adoption of the Special Master's interpretations of the Consent Judgment constitute appealable aspects of the Order that support review of the entire Order. The cases cited by appellant, however, are distinguishable because in each the judgment found appealable disposed of all of the ultimate issues before the district court. See Sportmart, 601 F.2d at 315-16 (contempt motion denied ); Sanders, 574 F.2d at 199 (same); Kittitas Reclamation Dist. v. Sunnyside Valley Irrigation Dist., 763 F.2d 1032, 1034 (9th Cir.), cert. denied, 474 U.S. 1032 (1985).2
CONCLUSION
Accordingly, we remand this case to the district court for lack of a final, appealable Order. The district court may wish to consider deferring action on the case pending resolution of the Federal Trade Commission action currently proceeding against both parties and the possible imminent Federal Drug Administration actions, revealed by oral argument.3
REMANDED.
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The Honorable Malcolm F. Marsh, United States District Judge, District of Oregon, sitting by designation
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3
We express no opinion as to the rest of the reasoning in Motorola
In Kittitas, 763 F.2d 1032, 1034, the district court held that a consent decree governing the Government's responsibilities as to an irrigation system did not apply to a third party's suit seeking water release and ordered the requested release. We found the order final because we had reviewed similar orders involving the consent decree. Kittitas, 763 F.2d at 1034 n. 1 (citing Kittitas Reclamation Dist. v. Sunnyside Valley Irrigation Dist., 626 F.2d 95 (9th Cir.1980), cert. denied, 449 U.S. 1079 (1981)). In the earlier Kittitas case, the district court order had adopted an interpretation of the consent decree as sought by a party. Thus, in both cases, the district court's order fully disposed of the issues submitted
At such time as there are further proceedings in the case before the district court, the district court may wish to reconsider its decision not to admit parol evidence. The district court should consider parol evidence in resolving the ambiguities of the Consent Judgment. See United States v. ITT Continental Baking Co., 420 U.S. 223, 236-37 (1975)