Warren Richards, IV v. Holsum Bakery Incorporated

FILED

NOT FOR PUBLICATION AUG 22 2013

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

WARREN N. RICHARDS, IV, No. 11-16849

Plaintiff - Appellant, D.C. No. 2:09-cv-00418-GMS

v.

MEMORANDUM*

HOLSUM BAKERY INCORPORATED,

an Arizona corporation and FLOWERS FOODS INCORPORATED, a Georgia corporation,

Defendants - Appellees.

Appeal from the United States District Court for the District of Arizona Mary H. MURGUIA, Circuit Judge, Presiding

Argued and Submitted June 12, 2013 San Francisco, California

Before: SCHROEDER, RIPPLE**, and CALLAHAN, Circuit Judges.

Warren N. Richards, IV, sued his former employer, Holsum Bakery, Inc.

(“Holsum”), for breach of contract. He filed this appeal from the district court’s

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The Honorable Kenneth F. Ripple, Senior Circuit Judge for the U.S. Court of Appeals for the Seventh Circuit, sitting by designation. award of $13,000 in attorneys’ fees as a sanction for his attorney meeting with one

of…

MEMORANDUM **

Warren N. Richards, IV, sued his former employer, Holsum Bakery, Inc. (“Hol-sum”), for breach of contract. He filed this appeal from the district court’s award of $13,000 in attorneys’ fees as a sanction for his attorney meeting with one of defendant’s employees. When the district court indicated that, pursuant to Richards’s request, it would remand the case to state court, Richards filed a notice of appeal from the sanction orders. We dismiss this appeal for lack of appellate jurisdiction, and, treating Richards’s filings as a petition for a writ of mandamus, we deny the petition.

I

Richards filed an action in the Superior Court of Arizona, Maricopa County, alleging breach of contract and seeking recovery of back salary and healthcare benefits. Holsum removed the case to the United States District Court for Arizona asserting that Richards’ claims were governed by the federal Employee Retirement Income Security Act (“ERISA”). While the parties were contesting the scope of discovery relevant to whether Richards’s claims were governed by ERISA, Richards and his attorney, Daryl Williams, met with Nichole de Parra, who was then Holsum’s Assistant Director of Human…

dissenting:

The court holds that (1) the notice of appeal was not filed within 30 days of an appealable order; (2) the sanction order is not appealable under the collateral order doctrine; and (3) it is not appropriate for the court to issue a writ of mandamus. I believe that the district court’s remand of the case to state court made previous non-final orders, including the sanctions order, appealable and, therefore, I respectfully dissent from the court’s determination that we lack jurisdiction to hear this appeal.

A sanctions order is ordinarily a non-final, interlocutory order and is not immediately appealable. Cato v. Fresno City, 220 F.3d 1073, 1074 (9th Cir.2000). However, “[w]e take ‘a pragmatic approach to finality in situations where events subsequent to a nonfinal order fulfill the purposes of the final judgment rule.’ ” Id. at 1074-75 (quoting Dannenberg v. Software Toolworks, Inc., 16 F.3d 1073, 1075 (9th Cir.1994)). Here, implementation of that “pragmatic approach” is governed by two of our recent precedents, Harmston v. City & County of San Francisco, 627 F.3d 1273 (9th Cir.2010), and California Department of Water Resources v. Powerex Corp., 533 F.3d 1087 (9th…