Chaunte Ott v. City of Milwaukee

In the

United States Court of Appeals

For the Seventh Circuit

Nos. 11-1541 & 11-1638

C HAUNTE O TT,

Plaintiff-Appellee,

v.

C ITY OF M ILWAUKEE, et al.,

Defendants.

A PPEALS OF:

W ISCONSIN D EPARTMENT OF C ORRECTIONS

and W ISCONSIN STATE C RIME L ABORATORY,

Appellants.

Appeals from the United States District Court

for the Eastern District of Wisconsin.

No. 2:09-CV-00870-RTR—Rudolph T. Randa, Judge.

A RGUED S EPTEMBER 28, 2011—D ECIDED M AY 29, 2012

Before B AUER, W OOD , and T INDER, Circuit Judges.

W OOD , Circuit Judge. Following his vindication after

his wrongful conviction and incarceration for the 1995

murder of Jessica Payne, Chaunte Ott brought a civil

rights action against the City of Milwaukee and several

2 Nos. 11-1541 & 11-1638

police officers. That case is still pending. This appeal

was filed when Ott served subpoenas on two non-party

state agencies, the Wisconsin Crime Laboratory and the

Wisconsin Department of Corrections. Rather than

comply, the state agencies filed motions to quash. The

district court denied those motions, at which point the

state agencies filed this appeal, invoking jurisdiction under

the collateral-order doctrine. We conclude that this is not

a proper case for that basis of jurisdiction, in light of

the Supreme Court’s decision in Mohawk Industries, Inc. v.

Carpenter, 130 S. Ct. 599 (2009). We add that even if

we have read Mohawk Industries too strictly and jurisdic-

tion is proper, we would find that the state agencies’

arguments lack merit.

I

Ott served 13 years for the murder of Jessica Payne

before DNA evidence exonerated him. The State of Wis-

consin dropped all charges against him in 2009 after

a Wisconsin appellate court held that he was entitled to

a new trial. Shortly thereafter, the Milwaukee Police

Department announced that it had connected the DNA

found on nine victims, including Payne, to Walter E. Ellis.

In light of that finding and his exoneration, Ott filed an

action under 42 U.S.C. § 1983 against several Milwaukee

police officers and the City of Milwaukee; he sought

damages for his wrongful conviction and incarceration.

In furtherance of those claims, Ott served subpoenas on

the Wisconsin Crime Laboratory and the Wisconsin

Department of Corrections pursuant to Federal Rule

of Civil Procedure 45, in an effort to obtain documents

Nos. 11-1541 & 11-1638 3

associated with the DNA testing of Ellis. (We note

that these entities lie within 100 miles of the courthouse,

see F ED. R. C IV. P. 45(b)(2)(B), and so there is no doubt

that they were part of the pending action.)

The state agencies moved to quash the subpoenas,

arguing that they are not “persons” subject to Rule 45

and that Ott’s service by certified mail was invalid. The

district court denied that motion. The state agencies

then moved to amend the court’s order on the ground

that they had preserved additional substantive objec-

tions that they had not previously raised. The district

court rejected the additional arguments as untimely,

but it nevertheless allowed the state agencies to submit

briefs on the question whether special circumstances

warranted an exception to waiver. After reviewing

that submission, the court concluded that the state

agencies were not entitled to an exception and it ordered

the production of the subpoenaed materials. The state

agencies then filed this appeal.

II

We consider first whether the state agencies’ appeal

is properly before this court. The state agencies assert

that it is, noting that this court has held that nonparties

may directly appeal adverse final discovery orders

before final judgment is entered in the underlying case.

See Dellwood Farms, Inc. v. Cargill, Inc., 128 F.3d 1122, 1125

(7th Cir. 1997) (“When the order is directed against a

nonparty, as it is here, [the nonparty] has no appellate

remedy at the end of the litigation, so he is entitled to

4 Nos. 11-1541 & 11-1638

appeal immediately.”). Ott responds that the Supreme

Court’s decision in Mohawk Industries, Inc. v. Carpenter, 130

S. Ct. 599 (2009), has effectively overruled this court’s

position on the issue.

Collateral-order review is based on a “practical” con-

struction of 28 U.S.C. § 1291; it is not an exception to the

final-judgment rule. Cohen v. Beneficial Indus. Loan Corp.,

337 U.S. 541, 546 (1949); Digital Equip. Corp. v. Desktop

Direct, Inc., 511 U.S. 863, 867 (1994). Immediate finality

exists only for orders “that are conclusive, that resolve

important questions completely separate from the

merits, and that would render such important questions

effectively unreviewable on appeal from final judgment

in the underlying action.” Digital Equip., 511 U.S. at

867. The Supreme Court recently emphasized the

narrow scope of the doctrine in Mohawk Industries, where

it held that a collateral-order appeal was not available

to review an order that may violate the attor-

ney-client privilege. The Court deemed postjudgment

appeal sufficient to protect the interests associated with

that privilege. If a party is particularly concerned about

turning over privileged materials, the Court noted,

there are other alternatives available, such as an inter-

locutory appeal under 28 U.S.C. § 1292(b), a writ of manda-

mus, or an appeal from a contempt citation. Id. at 608.

The overriding lesson from Mohawk Industries is that

“the class of collaterally appealable orders must remain

‘narrow and selective in its membership.’ ” Id. at 609,

quoting Will v. Hallock, 546 U.S. 345, 350 (2006). The

adversely affected party is expected to put its money

where its mouth is, so to speak, before an appeal will

be heard.

Nos. 11-1541 & 11-1638 5

Just as a party asserting attorney-client privilege

is compelled to use a method other than a collateral-

order appeal if it wants to avoid turning over certain

documents, so in our view must the state agencies

resist their subpoena orders more definitively before

this court may exercise jurisdiction. It might be enough

that the state agencies may resist compliance and risk

a contempt order, if they feel strongly that a prejudgment

appeal is necessary. Motorola, Inc. v. Computer Displays

Int’l, Inc., 739 F.2d 1149, 1154 (7th Cir. 1984) (“An

order finding a party in civil contempt disposes of all

the issues raised only if it includes both a finding of

contempt and the imposition of a sanction.”).

There is no risk of an unwarranted intrusion on

state sovereignty associated with this course of action;

notably, the two state agencies here were acting as the

agents of the City’s Police Department, and Ott’s suit

against the City and its officers falls comfortably within

federal authority. It is well understood that “courts

have inherent power to enforce compliance with their

lawful orders through civil contempt.” Shillitani v.

United States, 384 U.S. 364, 370 (1966); see also Young

v. United States ex rel. Vuitton et Fils, S.A., 481 U.S. 787,

794 (1987) (“[I]t is long settled that courts possess

inherent authority to initiate contempt proceedings for

disobedience to their orders.”). We know for a fact that

state entities are not unfamiliar with the possibility of

contempt proceedings arising out of their failure to

obey federal court orders. Bailey v. Roob, 567 F.3d 930,

937-38 (7th Cir. 2009) (discussing the possibility of con-

tempt proceedings against state agency arising out of

6 Nos. 11-1541 & 11-1638

consent decree); Power v. Summers, 226 F.3d 815, 819 (7th

Cir. 2000) (concluding that injunction against state may

be enforced by contempt citation).

We find immaterial the fact that this case involves a

discovery order directed at nonparties whereas Mohawk

Industries involved parties to the case. Under the facts

presented here, the state agencies’ interests in protecting

their privileged materials are as strong as those of a

party. Ott seeks documents created by the agencies

and that are in their possession. There is no risk that

the agencies lack the proper incentives to protect the

subpoenaed materials. The Supreme Court’s concern

that “piecemeal, prejudgment appeals . . . undermine[]

‘efficient judicial administration’ and encroach[] upon

the prerogatives of district court judges” applies with

equal force to the nonparties subject to the discovery

orders in this case. Mohawk Industries, 130 S. Ct. at 605,

quoting Firestone Tire & Rubber Co. v. Risjord, 449 U.S.

368, 374 (1981).

III

A

If perchance we have read Mohawk Industries too

strictly and the Court meant to leave a wider door open

for collateral-order appeals brought by nonparties, or if

the state agencies meant to invoke sovereign immunity

through their reference to “persons,” we would nonethe-

less reject their position on the merits. This court

reviews a district court’s order refusing to quash a sub-

Nos. 11-1541 & 11-1638 7

poena for abuse of discretion. United States v. Lloyd,

71 F.3d 1256, 1268 (7th Cir. 1995). We review the

district court’s interpretation of Rule 45 de novo.

Pickett v. Sheridan Health Care Ctr., 610 F.3d 434, 440 (7th

Cir. 2010).

Rule 45 establishes the proper procedure for issuing

subpoenas. Relevant to this appeal, it requires the sub-

poena to “command each person to whom it is directed

to do [certain things].” FED. R. C IV. P. 45(a)(1)(A)(iii)

(emphasis added). Similarly, Rule 45(c) is titled, “Pro-

tecting a Person Subject to a Subpoena.” The state

agencies argue that they are not “persons” subject to

subpoenas under Rule 45. The district court rejected

their argument, relying on the D.C. Circuit’s recent

opinion on this question.

The D.C. Circuit—the only court of appeals that

has considered this issue—held that a federal agency is

a “person” under Rule 45. Yousuf v. Samantar, 451 F.3d

248 (D.C. Cir. 2006). Overturning a district court decision

to the contrary, the court of appeals initially rejected

the district court’s use of the presumption that the

federal government is not a “person” within Rule 45.

Citing Nardone v. United States, 302 U.S. 379 (1937), it

recalled that the government at common law was pre-

sumed not to be a statutory “person” in two situations:

“(1) where the statute, if not so limited, would deprive

the sovereign of a recognized or established prerogative

title or interest, such as a statute of limitations; and

(2) where deeming the Government a person would

work obvious absurdity as, for example, the application

8 Nos. 11-1541 & 11-1638

of a speed law to a policeman pursuing a criminal or

the driver of a fire engine responding to an alarm.” Yousuf,

415 F.3d at 254 (internal quotations omitted). The court

found neither situation applicable to Rule 45, particularly

because the federal government lacks an “established

prerogative” to be free from subpoenas. Id. The court

then went on to conclude that the term “persons” used

elsewhere in the Federal Rules of Civil Procedure con-

templates the inclusion of the government. Id. at 255-56.

The question remains whether the holding and

reasoning of Yousuf may be extended to state agencies.

The first question is whether Rule 45 implicates state

interests that would trigger a Nardone presumption.

We think not: we can think of no “established prerogative”

of the Wisconsin Crime Laboratory or the Wisconsin

Department of Corrections that would be imperiled by

the application of Rule 45 to either one. Ott could have

demanded the same documents by issuing a subpoena

to the correct employee in each agency, as the agencies

admit in their brief. No state sovereign immunity issues

are triggered by this subpoena because no ultimate relief

is being sought from them. In addition, there is no

reason to believe that the application of Rule 45 would

work an “obvious absurdity,” especially since Ott could

have obtained the same documents with a minor

change in the addressee of the subpoena.

With the Nardone presumption out of the way, the next

issue to examine is whether the interpretation used in

Yousuf for an agency of the United States applies with

equal force to state agencies. We have previously held

Nos. 11-1541 & 11-1638 9

that states and state agencies qualify as “persons”

under the other civil procedure rules. Tillman v. City of

Milwaukee, 715 F.2d 354 (7th Cir. 1983) (Wisconsin agency

was a “person” within Federal Rule of Civil Procedure

19(a) as a required party); United States v. Illinois, 454

F.2d 297 (7th Cir. 1971) (the State of Illinois was a “per-

son” within Federal Rule of Civil Procedure 14). There

is no reason to refrain from applying the holdings in

Illinois and Tillman to Rule 45. The Supreme Court has

determined that whether a governmental entity qualifies

as a “person” is dependent on the rule’s “legislative

environment.” Sims v. United States, 359 U.S. 108, 112

(1959). As we have noted, “[A]lthough a statute may not

expressly mention States among those it includes, it may

become ‘equally clear that it does not exclude them.’ ”

Illinois, 454 F.2d at 301, quoting Sims, 359 U.S. at 112. The

history and purpose of Rule 45 indicates no legislative

intent to exclude states from the subpoena power of the

federal courts. 9C C HARLES A LAN W RIGHT ET AL., F EDERAL

P RACTICE AND P ROCEDURE § 2451, at 383 (3d ed. 2008).

On the record before us, therefore, it appears that the

state agencies are subject to the district court’s subpoena

power under Rule 45.

B

The state agencies do not dispute that they received

the subpoenas via certified mail. They argue, however,

that the subpoenas must be quashed as a matter of law

because they read Rule 45(b)(1) to prohibit service by

certified mail. In fact, as a quick examination of the lan-

guage of the Rule reveals, it never says that, but we

10 Nos. 11-1541 & 11-1638

proceed on the assumption that the agencies really mean

to argue for an implicit ban on this method of service.

Here is what the Rule says:

Any person who is at least 18 years old and not a

party may serve a subpoena. Serving a subpoena

requires delivering a copy to the named person and, if

the subpoena requires that person’s attendance,

tendering the fees for 1 day’s attendance and the

mileage allowed by law.

Many courts have interpreted this language (and its

predecessors before the 2007 restyling of the rules)

literally to require nothing short of personal service.

In re Dennis, 330 F.3d 696, 704-05 (5th Cir. 2003). But

the first question is personal service by whom? An agent

of the postal service surely qualifies as a “person at least

18 years of age and not a party.” And certified mail is

a service that provides the sender with a mailing

receipt; the Post Office also maintains a proof-of-delivery

record with a copy of the recipient’s signature for two

years from the date of mailing. USPS, Frequently Asked

Questions, http://faq.usps.com/ (last visited May 23,

2012). We see no reason to inflate the costs of litigation

by ruling out this sensible option for serving a sub-

poena (along with the necessary fees) and requiring

parties to hire a second person for service, at least in the

absence of any language in the Rule that compels such

a result.

Our conclusion is reinforced by a quick comparison

of the language in Rule 45(b)(1) with that in Rule 4(e),

which specifies various ways in which an individual

Nos. 11-1541 & 11-1638 11

within a judicial district of the United States may be

served with a summons. Those methods include “de-

livering a copy of the summons and of the complaint to

the individual personally.” F ED. R. C IV. P. 4(e)(2)(A) (em-

phasis added). Ott persuasively argues that the use of

the word “personally” in that part of Rule 4 would be

“pure surplusage” if Rule 45(b) were interpreted to

require personal delivery by a specially designated agent.

C

The state agencies’ final argument is that the dis-

trict court erred in finding that they waived all

substantive objections to the subpoenas. They note that

their motion to quash included an express reservation

of the right to assert substantive objections if the

motion failed on procedural grounds. The district court

found the objections untimely. The state agencies

complain that this was improper, despite the fact that

the district court had already granted them additional

time.

The question for us is whether a cursory reservation

of the right to assert substantive objections later is suffi-

cient to preserve those arguments. Critically, the state

agencies even now have not revealed what specific

“substantive objections” they are talking about. If they

are referring to privilege arguments, they are too late:

Rule 45(d)(2) says that “[a] person withholding subpoe-

naed information under a claim that it is privileged or

subject to protection as trial-preparation material must

expressly make the claim; and describe the nature of

the withheld documents . . . in a manner that, without

12 Nos. 11-1541 & 11-1638

revealing information itself privileged or protected,

will enable the parties to assess the claim.” The state

agencies’ brief and broad reservation of rights is insuffi-

cient to satisfy this requirement. Even if they are

referring to other arguments, the district court was

entitled to draw the line where it did. The Second

Circuit has noted that Rule 45 “require[s] the recipient

of a subpoena to raise all objections at once, rather than

in staggered batches, so that discovery does not become

a ‘game.’ ” In re DG Acquisition Corp., 151 F.3d 75, 81 (2d

Cir. 1998), quoting United States v. Bryan, 339 U.S. 323,

331 (1950). That is why Rule 45(c)(2)(B) requires the

objecting party to raise its objection before “the earlier

of the time specified for compliance or 14 days after

the subpoena is served.” The state agencies have not

offered any reason for failing to spell out all of their

objections in their initial or amended motion to quash.

IV

We conclude that we lack jurisdiction to rule on the

state agencies’ appeal. Moreover, even if Mohawk

Industries or another theory would permit the appeal, we

would find that the state agencies’ arguments lack

merit. We therefore D ISMISS the appeal for want of juris-

diction.

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