United States v. Anduze-Montano, 1st Cir. (1994)

USCA1 Opinion
UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT
____________________
No. 93-1554
UNITED STATES OF AMERICA,
Plaintiff, Appellee,
v.
789 CASES OF LATEX SURGEON GLOVES,
Defendant, Appellee,
__________
HARRY ANDUZE-MONTANO,
Appellant.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Jaime Pieras, Jr., U.S. District Judge]
___________________
____________________
Before
Breyer, Chief Judge,
___________
Torruella and Selya, Circuit Judges.
______________
____________________
Guillermo Ramos Luina on brief for appellant.
_____________________
____________________
December 30, 1993
____________________
TORRUELLA, Circuit Judge.

______________
is
whether
the
district
supervisory powers, properly
court,
The question
under
its
before us
inherent
ordered an attorney to
court reporter for a trial transcript.
or
pay the
We conclude the order
must be reversed.
I.
_
Appellant is an attorney who represented a claimant
in a forfeiture action.
trial in that
the
could
the close of the 13-day non-jury
case, the court asked the
transcript on
use it
At
an expedited
in preparing
basis
post-trial
reporter to prepare
so that
the parties
memoranda.
Several
months
later, before
decision,
funds
for the trial
the client had not
transcript.
order holding the
until new counsel

court
any
to pay
but
not
asked
motion to withdraw
in abeyance
the
picked
issued an order
Three weeks
court
to
the trial
up.
opposition to the court reporter's

the judge
produced the
court judge
$4,519 for
yet
had not been
The district
filed an appearance.
reporter
personally
ordered,
had rendered
communicate with his client, he
his services, and
issued an
the
court
appellant moved to withdraw explaining that he had
been unable to
paid for
the district
order
later,
appellant
transcript he
Appellant
filed
had
no
motion, and a month later
requesting appellant
to pay
the
-2-
reporter within the week.1

his
decision
appellant's
in
the
The same day, the judge rendered
forfeiture
action,
found
against
client, and ordered the articles destroyed.
The
next month, the court reporter said she had not been paid and
asked the
opposed
court to enforce
its August 19 order.
and sought reconsideration
He explained that the transcript

of his client,
own fee or
the
of the August
19 order.
had been ordered on
but he had been unable to
the transcript amount.
court lacked jurisdiction
Appellant
behalf
collect either his
Moreover,
he argued that
over him with
respect to the
demand for payment.

The
district
court
jurisdictional argument, explaining,
rejected
appellant's
without citation to any
authority, as follows:
The Court's power to order an attorney to
pay for stenographic transcripts which he
has ordered from
the official court
reporter
stems
from
the
summary
jurisdiction possessed by courts over
attorneys as their officers. The courts
have always possessed jurisdiction to
compel an attorney to observe the duties
incident to his professional relations
towards his clients, and towards the
other officers of the Court, including
court reporters. It is a court's right
____________________
1.
The order, dated August 19, 1992, read as follows:

Order to Att. Harry Anduze -- Please
proceed to pay Mrs. Barbara Dachman the
sum of $4,519.00 for her services as
requested in motion
subject of this
order.
Payment should be made on or
before August 26, 1992.
-3-
and duty to supervise attorneys and court

reporters in their actions pertaining to
matters concerning litigation before the
court, as they are both officers of the
court. Thus, the Court has jurisdiction
over attorney Anduze even though he has
not been served with process.
United States v. 789 Cases of Latex Surgeons' Gloves, 826 F.
_____________
____________________________________
Supp. 589, 590 (D.P.R. 1993).
court
acknowledged
the
With regard to the merits, the
existence of
contrary
views,
but
adopted the following rule:

[T]he Court believes that in the absence
of express notice to the contrary, court
officials and persons connected, either
directly or indirectly with the progress
of
litigation,
may
safely
regard
themselves as dealing with the attorney,
rather than with the client. . . . There
is nothing unfair about this rule, the
Court agrees with [Monick v. Melnicoff,
______
_________
144 A.2d 381 (D.C. Mun. Ct. App. 1958)]
in that:
If an attorney in ordering a
transcript or a brief does not
intend
to
bind
himself
personally,
he
may
avoid
responsibility by making his
position clear. The reporter .
. . then on notice of the
nonliability of the attorney,
may take such steps as he feels
are
necessary
for
his
protection
before
extending
credit to a client whose credit
standing and responsibility are
often wholly unknown to him.
789 Cases,
826 F. Supp.
at 590-91.
While
neither side had
_________
cited any Puerto Rico law
determine
how
on the subject, the court
Puerto
Rico
contractual dispute because
court
would
did not
decide
it believed the matter
the
could be
-4-
"resolved independently of
local law," id., at 590

___
n.3, and
it ordered appellant to pay the court reporter.2

Appellant
has now appealed
from the May
12, 1993
payment order.
II.
__
We
deal first with a jurisdictional question.
The
court reporter argues no timely appeal from the final payment

order has been filed and
She contends that
19,
hence we should dismiss the appeal.
the payment order
1992 order quoted
for reconsideration,
in note one,
filed on
was the court's
August
that appellant's motion
September 22,
1992 past
the
period provided in Rule 59(e), would not have tolled the time
for appealing from
the August 19, 1992 under
Fed. R. App. P. 4(a)(4) in effect prior
the version of
to December 1, 1993;
and that appellant's

court's
May
12,
May 24, 1993 notice of
1993
order
denying
appeal from the
reconsideration
and
ordering payment does not bring before us the August 19, 1992
order.
asking
legal
rule's
Under
the principle
that
post-judgment motion
the court to change its disposition solely because of

______
error must
10-day
be
brought under
Rule
period, Rodriquez-Antuna
________________
Bank Corp., 871 F.2d

__________
59(e) within
v.
the
Chase Manhattan
_______________
1, 2 (1st Cir. 1989) (dispute
over how
____________________
2. We point out that we take no position on the question
whether the substantive rule of decision in a case like this
derives from federal or state law. See Mathewson Corp. v.
___ ________________
Allied Marine Indus., Inc., 827 F.2d 850, 853 n.3 (1st Cir.
___________________________
1987).
-5-
statute
of limitations
under Rule 60(b));

(1st Cir.) ("If
should
be
computed not
Silk v. Sandoval, 435

____
________
cognizable
F.2d 1266, 1267-68
the court merely wrongly decides
a point of
law,
that
is
not
`inadvertence,
surprise,
or
excusable
neglect'" within the meaning of Rule 60(b)(1)), cert. denied,

____________
402 U.S. 1012 (1971), the appeal from the May
12, 1993 order
would avail appellant nothing, the argument would continue.

We disagree for two reasons.
1992 order was arguably precatory.
payment,
but
rather
asked
directive did
order.
Second,
not carry
It did not clearly direct
appellant
reporter, a phrasing which may

the
First, the August 19,
to
please
pay
the
have led appellant to believe

the
force of
Rodriquez-Antuna
________________
does
a normal
not
apply
court
because
appellant did not simply argue that the August 19, 1992 order
was infected by
advanced a
error of substantive law.
non-frivolous argument
that the
Rather, appellant
order was
void
because the court lacked jurisdiction to order him to pay the

court reporter, a matter
addressed.
the district court had
not earlier
Under these circumstances, we conclude that even
if the August 19, 1992 order was a final judgment
from which
an immediate appeal could have been filed, appellant's motion

for reconsideration was properly
Civ. P. 60(b).
from the court's
entertainable under Fed. R.
As appellant filed a timely notice of

May 12, 1993 order
appeal
denying reconsideration
and ordering appellant to pay the court reporter, we deny the
-6-
court reporter's
motion to
dismiss and
motion for
further
briefing time and proceed to the merits.

III.
___
Some courts,
an
applying agency
attorney is not liable for
express
courts
or
implied
principal
and impose
express disclaimer
Annotation,
litigation expenses absent an
undertaking to
treat the attorney,
principles, conclude
be
rather than
liability on
the
of responsibility.
bound,
while other
the client,
as the
attorney absent
See
___
Jay M.
an
Zitter,
Attorney's
Personal Liability
for Expenses
________________________________________________
Incurred in Relation to Services for Client, 66

_____________________________________________
A.L.R. 4th
256,
approaches
262
followed).
(1988)
(surveying
the
variety
of
Here the district court purported to exercise its
supervisory powers to devise a uniform rule to be followed in

the federal district court in Puerto Rico and applied the new
rule
to
conduct
Regardless of
of
decision (a
the
rule's
announcement.
whether federal or state law supplies the rule

matter on which
n.2), and regardless

an attorney's
pre-dating
we do not
opine, see supra

___ _____
of which of the surveyed
payment responsibility
approaches to
represents the
better
view, we think the district court's handling of the situation

did not satisfy the demands of fundamental fairness.
The
Boettcher
_________
1991).
situation
v.
is
similar
Hartford Ins. Group,

____________________
to that
presented
927 F.2d
23
in
(1st Cir.
There, the district court invoked its inherent powers
-7-
to impose jury costs on a plaintiff and her attorney who
had
settled on the morning of trial after jurors had reported for

duty.
No
local rule
circumstances,
and
settling that jury
provided for
counsel
had
had
jury costs
no
notice
costs would be imposed.
the first step
fair notice
power . .
in adopting a
is fatal to
..
new rule.
The "[l]ack of
of inherent
the imposition of a
without prior notice," we explained.
to
use the case
[the court's] exercise
The law forbids
prior
We reversed the
sanction because it was unfair for the court to

as
under those
new rule
Id. at 26.
___
We think the same is true here.
The district court
has no written local rule imposing liability on attorneys for
transcripts they order,3 and hence
the court should not have
invoked
resolve
its
inherent
powers
to
the
"transcript
payment" dispute summarily.

The May 12,
1993 order directing appellant
to pay
the court reporter is reversed.

________
____________________
3. We do not purport to pass upon the validity of any such
rule, were one to be adopted. Similarly, we do not express
any view on what remedial avenues remain open to the unpaid
court reporter.
-8-

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USCA1 Opinion

UNITED STATES COURT OF APPEALS

TORRUELLA, Circuit Judge.

supervisory powers, properly

court reporter for a trial transcript.

We conclude the order

the close of the 13-day non-jury

case, the court asked the

for the trial

the client had not

order holding the

until new counsel

opposition to the court reporter's

had not been

communicate with his client, he

his services, and

appellant moved to withdraw explaining that he had

motion, and a month later

reporter within the week.1

The same day, the judge rendered

client, and ordered the articles destroyed.

its August 19 order.

and sought reconsideration

He explained that the transcript

had been ordered on

but he had been unable to

the transcript amount.

court lacked jurisdiction

collect either his

over him with

demand for payment.

jurisdictional argument, explaining,

without citation to any

The order, dated August 19, 1992, read as follows:

and duty to supervise attorneys and court

With regard to the merits, the

adopted the following rule:

neither side had

on the subject, the court

contractual dispute because

it believed the matter

local law," id., at 590

it ordered appellant to pay the court reporter.2

has now appealed

from the May

deal first with a jurisdictional question.

court reporter argues no timely appeal from the final payment

hence we should dismiss the appeal.

the payment order

1992 order quoted

was the court's

that appellant's motion

the August 19, 1992 under

Fed. R. App. P. 4(a)(4) in effect prior

and that appellant's

May 24, 1993 notice of

appeal from the

the court to change its disposition solely because of

Bank Corp., 871 F.2d