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Clayton Harmston; Gigi v. City and County of

December 10, 2010

CLAYTON HARMSTON; GIGI GEORGE; JAMES LEWIS; ERIK EVANSON; ERIK SOLARES; DAVE PARRY; NOAH MALLINGER; CARLOS MUSTAFICH; LUIS DEJESUS; JAMES D. AHERNE; JASON KIRCHNER; REGINALD SCOTT; GERALD P. LYONS; WENDY HURLEY; HOLLY STOUMEN; CHRISTINE ARNDT; SHAREEF NASIR, INDIVIDUALS, PLAINTIFFS, ANDREW COHEN, AN INDIVIDUAL, PLAINTIFF-APPELLANT, WAUKEEN Q. MCCOY, APPELLANT,
v.
CITY AND COUNTY OF SAN FRANCISCO; HEATHER FONG, DEFENDANTS-APPELLEES.



Appeal from the United States District Court for the Northern District of California Susan Illston, District Judge, Presiding D.C. No. and 3:07-cv-01186-SI

The opinion of the court was delivered by: Judge Bybee

FOR PUBLICATION

OPINION

Argued and Submitted June 14, 2010-San Francisco, California

Before: Mary M. Schroeder and Jay S. Bybee, Circuit Judges, and Owen J. Panner, District Judge.*fn1

OPINION

BYBEE, Circuit Judge:

The district court sanctioned police officer Andrew Cohen and attorney Waukeen Q. McCoy (collectively, "Cohen") in 2007 for violating the court's discovery protective order. After the district court remanded the case to state court in 2008, and after the state court entered judgment, Cohen appealed the district court's sanctions order in 2009. We are first asked to decide whether the remand order was a "final" order for purposes of permitting Cohen to appeal the sanctions order. Concluding that the remand order was final, we then must determine whether the appeal was timely filed under Federal Rule of Appellate Procedure 4(a). We conclude that it was not and that we lack jurisdiction to hear Cohen's appeal.

I

Eighteen San Francisco police officers-most of whom were stationed in Bayview-created a comedy video in 2005. Finding the video offensive, Police Chief Heather Fong ("Fong") disciplined several of the participating police officers. In August 2006, eighteen of those officers (including co-appellant Andrew Cohen), represented by co-appellant McCoy, filed suit in state court, alleging race discrimination, retaliation, defamation, and intentional infliction of emotional distress. When the officers subsequently amended their complaint to include federal discrimination claims, CCSF removed the case to federal court on February 28, 2007.

Fearing public disclosure "of confidential, proprietary, or private information" during the course of discovery, the parties agreed to a Stipulated Protective Order ("Protective Order") on August 20, 2007. The district court later held that McCoy and Cohen violated the Protective Order when McCoy provided or showed a copy of the video of Chief Fong's deposition to a reporter for ABC News on September 20 or September 21, 2007, even though Fong's counsel had designated the deposition as confidential. While McCoy had objected to designating Fong's deposition as confidential, he never pressed this objection to the court. Citing this and three other examples of Protective Order violations,*fn2 none of which appellants dispute, the district court held McCoy and Cohen in contempt. Because the "evidence" of Cohen's violations was "clear and convincing," the court concluded "that sanctions for th[eir] contempt [were] appropriate to compensate [CCSF] for [their] noncompliance."

On November 16, 2007, Cohen appealed to this court, arguing that the district court's order held Cohen in criminal con-tempt, and that the court should have therefore provided procedural protections. In an unpublished order, we "conclude[d] that the district court found [Cohen] in civil contempt and that the district court imposed monetary sanctions against [Cohen] to compensate [CCSF] for losses sustained when [Cohen] violated the district court's protective order and to coerce compliance with the district court's protective order in the future." Because Cohen was held in civil contempt, we concluded, the sanctions order was "not an immediately appealable order," and we sua sponte dismissed the appeal. See 28 U.S.C. § 1291; Bingman v. Ward, 100 F.3d 653, 656 (9th Cir. 1996); Kordich v. Marine Clerks Ass'n, 715 F.2d 1392, 1393 (9th Cir. 1983) (per curiam).

On January 29, 2008, the district court granted in part Appellants' Motion for Clarification of the Court's Contempt Order. The court made clear "that the sanctions imposed on Cohen . . . were civil, not criminal," because "the Court awarded sanctions to defendants to compensate them for injuries associated with the improper disclosure of Chief Fong's deposition," and because "the Court intended in part to coerce plaintiffs to comply with the protective order in the future."

On October 9, 2008, the district court granted Cohen's motion to dismiss all federal claims and remand the case to state court. Citing 28 U.S.C. ยง 1367(a), and relying on its "discretion to remand a properly removed case to state court when no federal claim remains," the district court concluded "that the interests of judicial economy, comity and convenience . . . favor[ed] remand to state court for determination of the state law issues that . . . exclusively control[led] this case." On October 16, 2008, the district court issued an "Amended Clerk's Notice," in which the district court clerk notified the San Francisco Superior Court of the remand and transmitted the docket ...


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