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Idona Wallace v. Kmart Corporation

July 25, 2012

IDONA WALLACE
v.
KMART CORPORATION ERROL STANLEY; NIGEL CHARLES; MELVIN NEAL; JOSEPH SONNY; WRANDA DAVIS; RACHEL DAVIS
v.
ST. CROIX BASIC SERVICES, INC; HOVENSA LLC; AMERADA HESS CORP.; BASIC INDUSTRIES INC. FORREST THOMAS
v.
CENTENNIAL COMMUNICATIONS; CENTENNIAL PUERTO RICO WIRELESS; CENTENNIAL USVI OPERATION; CENTENNIAL CARIBBEAN HOLDING CORP. MARK VITALIS
v.
SUN CONSTRUCTORS INC.; HOVENSA LLC; RICHARD LANGNER; EXCEL GROUP INC. PATRICE CANTON
v.
KMART CORPORATION GLENFORD RAGGUETTE
v.
PREMIER WINES AND SPIRITS LTD. TERRANCE ALEXIS
v.
HOVENSA LLC; HESS CORPORATION F/K/A AMERADE HESS CORPORATION LEE ROHN, ESQ.*, APPELLANT



APPEAL FROM THE DISTRICT COURT FOR THE VIRGIN ISLANDS District Judge: Honorable Timothy J. Savage (D.V.I. No. 1-02-cv-00107) (D.V.I. No. 1-03-CV-00055) (D.V.I. No. 1-03-cv-00163) (D.V.I. No. 1-05-cv-00101) (D.V.I. No. 1-05-cv-00143) (D.V.I. No. 1-06-cv-00173) (D.V.I. No. 1-07-cv-00091)

The opinion of the court was delivered by: Greenaway, Jr., Circuit Judge.

PRECEDENTIAL

*(Pursuant to Fed. R. App. P. 12(a))

Argued December 6, 2011

Before: FISHER, GREENAWAY, JR. and ROTH, Circuit Judges.

OPINION

Attorney Lee Rohn appeals a decision of the District Court holding her in contempt, pursuant to Fed. R. Civ. P. 45(e), for failing to comply with a subpoena. The subpoena was issued by Sun Constructors ("Sun") as part of discovery in the motion Ms. Rohn filed, seeking the recusal of the District Judge in seven cases in which Ms. Rohn appeared as counsel. The cases, all of which were in different procedural postures, were consolidated for purposes of consideration of the recusal motion. For the reasons set forth below, we conclude that we have jurisdiction to hear this appeal, and will remand for further proceedings consistent with this opinion.

I. Facts and Procedural History

In the recusal motion, Ms. Rohn alleged that the District Judge‟s "personal animosity" towards her was creating an appearance of bias and prejudice against her clients. (App. 104-05.) In support of the recusal motion, Ms. Rohn submitted a declaration, relating her summary of the facts that formed the basis for her allegation of personal animosity. In response to the recusal motion and attached declaration, Sun, who was a defendant in one of the seven consolidated cases, sought discovery.*fn1 Specifically, Sun subpoenaed Ms. Rohn.*fn2 The subpoena sought production of documents as well as scheduling her deposition.*fn3

Ms. Rohn filed a mandamus petition in our Court seeking to have us act on various discovery matters, including vacating the order requiring her to appear for her deposition. The petition was denied, but our Court directed that all discovery be overseen by a Magistrate Judge, and not the District Judge about whom the recusal motion was focused.

According to Defendants, Ms. Rohn did not comply with the subpoena. She appeared for her deposition, but did not produce any documents. As a result, Defendants moved for contempt, pursuant to Fed. R. Civ. P. 45(e).*fn4 The Magistrate Judge granted the motion, held Ms. Rohn in contempt, and awarded attorney‟s fees to Defendants as the sanction for her contempt. Citing 28 U.S.C. § 636(e)(7), Ms. Rohn appealed to the District Judge, who affirmed the finding of contempt without holding a hearing.

Ms. Rohn now argues on appeal that (1) the Magistrate Judge lacked the statutory authority to enter the contempt order and (2) the District Judge failed to conduct a de novo hearing, as required by 28 U.S.C. § 636(e).

II. Jurisdiction

In our order granting Ms. Rohn‟s emergency motion seeking to stay the payment of the attorney‟s fees, we directed the parties to address the issue of this Court‟s jurisdiction, specifically focusing on the ""congruence of interests‟ distinctions outlined in Cunningham v. Hamilton County, Ohio, 527 U.S. 198, 199 and 211 ...


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