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Ohntrup v. Firearms Center Inc.

argued: August 4, 1986.

ROBERT AND BEVERLY OHNTRUP, APPELLEES
v.
FIREARMS CENTER, INC., V. MAKINA VE KIMYAENDUSTRISI KURUMU MORGAN, LEWIS & BOCKIUS, APPELLANT



On Appeal From The United States District Court For The Eastern District of Pennsylvania, D.C. Civ. 76-0742.

Before: SEITZ, ADAMS AND STAPLETON, Circuit Judges.

Opinion OF THE COURT

Per Curiam:

Appellant Morgan, Lewis & Bockius ("Morgan") appeals from an order of the district court denying its motion for leave to withdraw as counsel of record for Makina Ve Kimya Endustrisi Kurumu ("Makina") in a diversity action filed by Richard and Beverly Ohntrup. As discussed more fully below, this court has jurisdiction under 28 U.S.C. § 1291.

I.

The Ohntrups filed this product liability action to recover damages for an injury sustained by Robert Ohntrup on May 2, 1975 while using a pistol manufactured by Makina. Makina is a corporation owned entirely the the Turkish government. Makina retained Morgan, a Philadelphia-based law firm, to represent it in the litigation.

After a bifurcated trial at which Makina was defended by Morgan through partners John R. McConnell and Arthur Littleton, the district court entered judgment against Makina in the sum of $847,173.97. Upon Makina's appeal, this court affirmed the judgment of the district court. Appeal of Makina Ve Kimya Endustrisi Kurumu, 760 F.2d 259 (3rd Cir. 1985), affirming mem., Ohntrup v. Firearms Center, 516 F. Supp. 1281 (E.D.Pa. 1981).

Makina subsequently refused to satisfy the judgment. Accordingly, the Ohntrups commenced discovery in aid of execution. When Makina refused to cooperate, the Ohntrups filed motions to compel discovery.

The Ohntrups continued to serve their papers on Morgan during these post-judgment proceedings. Despite repeated efforts, however, Morgan was unable to learn what action Makina wished Morgan to undertake on its behalf. For this reason, Morgan regarded its representation of Makina as ended, and filed a motion for leave to withdraw appearance. Makina subsequently informed Morgan by telex that it no longer wished Morgan to continue its representation in the matter.

On November 27, 1985, the district court granted Morgan's motion as to John R. McConnell and Arthur R. Littleton. McConnell had retired from Morgan and Littleton had left to join another firm. The district court denied Morgan's motion, however, as it pertained to the firm. The transcript of the court's oral opinion indicates that Morgan must continue to represent Makina until Makina arranges for representation by other counsel.

II.

Before reaching the merits of Morgan's contentions, the court must ensure that this appeal is properly before it. The parties have briefed the issue at the court's direction.

The Ohntrups contend that the district court's order is not a final order under 28 U.S.C. § 1291. They note that discovery proceedings in aid of execution are pending in the district court, and rely on the Supreme Court's opinion in Firestone Tire and Rubber Co. v. Risjord, 449 U.S. 368, 101 S. Ct. 669, 66 L. Ed. 2d 571 (1981). In Risjord, the Supreme Court held that a district court's order denying a motion to disqualify counsel in a civil case is not an appealable order. Id. at 370. See also Richardson-Merrill, Inc. v. Koller, 472 U.S. 424, 105 S. Ct. 2757, 86 L. Ed. 2d 340 (1985) (order granting motion to disqualify counsel not immediately appealable).

The Ohntrup's reliance on Risjord, however, is misplaced. In Risjord, the district court denied the motion to disqualify prior to the entry of judgment, in the course of pre-trial proceedings. In the present case, in contrast, ...


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