Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 80 C 5280-Prentice H. Marshall, Judge.
Before CUMMINGS, Chief Judge, FLAUM, Circuit Judge, and TIMBERS, Senior Circuit Judge.*fn*
Counsel for defendant Cook County Deputy Sheriff Alan Kulovitz, the State's Attorney of Cook County Richard M. Daley, appeals from the court below's imposition of $400 in attorney's fees as a sanction under Fed. R. Civ. P. 11. This sanction was imposed upon Mr. Daley under the respondeat superior doctrine for an infraction by Assistant State's Attorney David S. Allen ("appellant"). For the reasons discussed herein, we affirm the judgment of the district court.
On the evening of September 13, 1980, Fred Frazier was barricaded in his father-in-law's house in Sauk Village, Illinois, where Frazier was living with his family, in order to avoid arrest for an alleged traffic violation. Frazier was a convicted felon, and that evening was armed with a large hunting knife and appeared to be intoxicated. The officers outside the house described Frazier to Deputy Sheriff Kulovitz as a 230-pound motorcycle freak who could "punch-press" 300 pounds and who had a history of violence, at one time having put six police officers in the hospital when resisting arrest. The Sauk Village police had requested outside assistance in their attempt to arrest Frazier. At least two officers with the Cook County Sheriff's Department, including Kulovitz, and two Illinois state troopers had responded to this call and were on the scene in the early morning hours of September 14. Frazier was not responding to any of the officers' attempts to persuade him to abandon his resistance, and finally the officers present decided that tear gas would have to be used.
The tear gas was deployed and quickly filled the house with white smoke. The officers had been careful to gas the basement to prevent Frazier from retreating there and then being trapped by the smoke. The front and back doors were left open to allow Frazier a path of escape, although officers were stationed by both doors to take him into custody once he emerged. Not only does tear gas act as an irritant, causing one to tear and sweat profusely, but the chemical displaces the oxygen in the air, so that a person refusing to leave an area filled with tear gas would soon suffocate. Despite the significant discomfort imposed by tear gas, Frazier still refused to leave the house.
Some ten minutes passed, and fans were set up to try to ventilate the house. After an additional five or ten minutes, defendant Kulovitz and another officer, state trooper Yoways, ventured into the basement where those present believed Frazier to be, to try to bring him out. The two proceeded cautiously, because they knew Frazier could be dangerous and thought he might be lying in wait for them.
Frazier was indeed in the basement, underneath an overturned couch that had caught on fire. Kulovitz and Yoways were unable to drag Frazier, who was unconscious, out of the house. Other officers present did so, and Frazier was given medical assistance and carried to an ambulance. Nonetheless he later died of his injuries. His wife and children filed this civil rights suit against various police officers and municipalities connected with the incident.
In response to the lawsuit, defendants filed several pretrial motions, including a summary judgment motion by defendant Kulovitz. In his reply brief to plaintiffs' answer to his motion for summary judgment, Kulovitz argued through appellant counsel that exigent circumstances justified his warrantless entry into the house to save Frazier. On April 13, 1984, the court below gave plaintiffs an opportunity to respond to this argument. The judge's examination of these papers and the underlying deposition testimony convinced him that Kulovitz's argument of exigent circumstances was not well grounded in fact. In an opinion dated June 13, 1984, the court ordered Kulovitz's appellant counsel to show cause persuaded the district court to order him to pay $400 to plaintiffs' counsel for four hours legal work (instead of the seventeen hours claimed) occasioned by Kulovitz's baseless argument proffered by appellant counsel. His signature on Kulovitz's motion for summary judgment and supporting reply memorandum was held to violate the certificate requirement of Rule 11, infra p. 5. Counsel now appeals this July 9 order.
An order imposing sanctions is a non-final order, so that we must determine whether it falls within the narrow category of collateral orders appealable pursuant to 28 U.S.C. § 1291 under the rule of Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 93 L. Ed. 1528, 69 S. Ct. 1221. The order must meet three requirements. It "must conclusively determine the disputed question, resolve an important issue completely separate from the merits of the action, and be effectively unreviewable on appeal from a final judgment." Coopers & Lybrand v. Livesay, 437 U.S. 463, 468, 57 L. Ed. 2d 351, 98 S. Ct. 2454 (footnote omitted).
The order here satisfies these conditions. The assessment of $400 for plaintiffs' attorney's fees was a conclusive determination. It also was completely separate from the merits, because the dispositive inquiry is what the facts appeared to be to the assistant state's attorney handling the case at the time. The ultimate outcome of the lawsuit, whether favorable to plaintiffs or not, cannot affect this determination. Cf. White v. New Hampshire Department of Employment Security, 455 U.S. 445, 451 n.13, 71 L. Ed. 2d 325, 102 S. Ct. 1162 (recognizing that an award of attorneys' fees under 42 U.S.C. § 1988 is separable from main action because it implicates different legal issues). Finally, because the sanctions are imposed against a non-party, the order is not reviewable on appeal from a final judgment. The parties may settle, so that the district court could never enter a final judgment. Alternatively Kulovitz could elect not to appeal whatever final determination is made, hereby possibly precluding his attorney from appealing the sanction order.
Our decision accords with two recent decisions of this Court. In Knorr Brake Corp. v. Harbil, Inc., 738 F.2d 223, 226 (1984), an important factor leading to the Court's allowing appeal from a collateral order imposing attorney's fees under 28 U.S.C. § 1927 was that the sanctions were assessed against a non-party, who might not be able to appeal from the final judgment. Accord Tamari v. Bache & Co. (Lebanon) S.A.L., 729 F.2d 469 (7th Cir. 1984) (attorney's fees assessed against a non-party under Fed. R. Civ. P. 37 immediately appealable). In Mulay Plastics, Inc. v. Grand Trunk Western Railroad, 742 F.2d 369, 370-371 (1984), certiorari denied, 470 U.S. 1037, 105 S. Ct. 1409, 84 L. Ed. 2d 798, we did not hold that an order imposing sanctions for abuse of discovery pursuant to Fed. R. Civ. P. 37, including attorney's fees, was not appealable when entered. But there the sanctions were assessed against one of the parties to the action, not against a non-party. The panel specifically distinguished Knorr Brake Corp. v. Harbil, Inc., Supra, on this ...