SPRAGUE v. S.N.A., INC.

Filing 85

MEMORANDUM AND OPINION. SIGNED BY HONORABLE NORMA L. SHAPIRO ON 5/17/11. 5/20/11 ENTERED AND COPIES E-MAILED.(fdc)

IN THE UNITED STATES DISTRICT COURT FOR
THE EASTERN DISTRICT OF PENNSYLVANIA

RON A. SPRAGUE, as Executor of
the Estate of CHESTER W.
SPRAGUE
v.
S.N.A., INC.

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CIVIL ACTION

NO. 08-1970

MEMORANDUM AND ORDER
NORMA L. SHAPIRO, S.J.

MAY 17, 2011

Defendant filed a notice of appeal on May 2, 2011. It then filed a petition on May 6, 2011
to stay the court’s April 28, 2011 order and discovery deadlines pending appeal. Generally, the
filing of a notice of appeal divests a district court of authority over those aspects of the case on
appeal. Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 58-59 (1982) (per curiam).
However, in certain circumstances, the district court may continue to assert jurisdiction. One such
circumstance is where the notice relates to a non-appealable order or judgment. Mondrow v.
Fountain House, 867 F.2d 798, 800 (3d Cir.1989); Venen v. Sweet, 758 F.2d 117, 120-22 (3d
Cir.1985). Another is where a notice qualifying as a “collateral order,” and therefore immediately
appealable, is determined by the district court to be frivolous. United States v. Leppo, 634 F.2d
101, 105 (3d Cir. 1980); see also Allan Ides, The Authority of a Federal District Court to Proceed
After Notice of Appeal Has Been Filed, 143 F.R.D. 307, 312-13 (1992). The notice of appeal filed
by defendant here is both non-appealable and frivolous and this court may retain jurisdiction over
the proceedings. Therefore the petition to stay will be denied.

1

A district court must support its conclusion that a notice of appeal is frivolous with written
findings in order to maintain jurisdiction. Leppo, 634 F.2d at 105. The findings of the court in its
memorandum dated May 17, 2011 give support for its conclusion here. In denying the defendant
S.N.A. Inc. (“SNA”) motion for a protective order, the court explained that there were several
reasons for its denial, including a failure to certify that SNA had made reasonable efforts to resolve
the dispute. According to exhibits submitted by plaintiff, Ron A. Sprague (“Sprague”), in the form
of an email history, plaintiff clearly offered to consider any objections SNA might have to its
document request.1 In its response to the motion for protective order, Sprague asserted that defense
counsel did not disclose her objections at any time prior to the filing of the motion. The motion for
protective order was filed prematurely and its timing, as well as the filing of a notice of appeal
upon its denial, suggests that defense counsel is engaging in delay tactics rather than complying
with court orders.
SNA’s motion for a protective order was filed April 22, 2011. Mr. Richard Silva, SNA’s
successor in interest, was scheduled for a deposition on April 26. A response to the motion for
summary judgment was due May 6. SNA now argues that all these deadlines should be put on
hold until an appeal of a pretrial discovery order is decided. This action has already gone on too
long and the court finds it is unacceptable that a motion for summary judgment, filed by plaintiff
on June 12, 2009, remains unanswered by defendant.
It is also likely that the notice relates to a non-appealable order. SNA appeals the court’s
1

In an email dated April 20, 2011, James Robinson, counsel for plaintiff, wrote to Terry
Silva, counsel for defendant: “I see now that you are planning to object to our requests. I cannot
agree in a vacuum to pare down anything. Please tell me which documents you object to
producing, and provide me with the basis for your objection. I will review it and respond.”
Plaintiff’s Memorandum of Law, paper no. 78 at Exhibit F.
2

denial of a motion for protective order relating to discovery; specifically, a document request and
deposition location. The Third Circuit has only recognized two areas where discovery orders are
appealable under the collateral order doctrine: trade secrets and “traditionally recognized
privileges, such as attorney client and work product.” Pearson v. Miller, 211 F.3d 57, 65 n.6 (3d
Cir. 2000). The Supreme Court recently overruled one of these exceptions by holding that
disclosure orders adverse to the attorney-client privilege do not qualify for immediate appeal.
Mohawk Industries v. Carpenter, 130 S.Ct. 599, 604 (2009). It is unclear whether the exception
for trade secrets remains intact. Nevertheless, SNA has never asserted that the document request at
issue would reveal trade secrets. The motion for a protective order vaguely referred to certain
documents as proprietary2 but based the motion on its argument that the document request was
“overly broad, oppressive and unduly burdensome.” SNA’s motion for a stay argues that
“confidential proprietary information”will be revealed if this action proceeds but still makes no
mention of trade secrets.3 SNA has not asserted any basis for the court to believe that any trade
secrets are at issue here. Further, the court specifically allowed defendant to submit any documents
to which it objected to the court for review ex parte before producing them to plaintiff. See Order
of April 28, 2011. This would have given the court the opportunity to redact any trade secrets
however unlikely their existence.
The petition for a stay will be denied because of the frivolous nature of the notice of appeal

2

SNA refers to paragraph 44 of the document request: “All documents submitted to the
regulatory authority in Canada or the United States with regard to the certification or efforts to
obtain certification of the Seawind aircraft.” Defendant’s motion for protective order, paper no.
77, at Exhibit 1 p. 6.
3

The fact that SNA changes its argument in various filings provides additional support for
the finding that this notice of appeal is frivolous.
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from a non-appealable order. This case will proceed according to the pretrial schedule despite the
notice of appeal. The Court of Appeals for the Third Circuit maintains exclusive authority to
decide the merits of the appeal and the discretion to stay further trial proceedings pending its
decision. Until the Court of Appeals rules otherwise, however, the parties must follow this court’s
schedule.

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