NOTE: This order is nonprecedential.
United States Court of Appeals for the Federal Circuit
2010-1164
ADVANCED MAGNETIC CLOSURES, INC.,
Plaintiff,
v,
ROME FASTENER CORPORATION, ROME FASTENER SALES CORPORATION,
ROMAG FASTENERS, INC., and RINGS WIRE, INC.,
Defendants-Appellees, Vv.
IRVING BAUER and G. BAUER INC.,
Movants-Appellants. Appeal from the United States District Court for the Southern District of
New York in case no. 98-CV-7766, Judge Paul A. Crotty.
ON MOTION
Before RADER, ARCHER, and GAJARSA, Circuit Judges.
ORDER
Irving Bauer and G. Bauer Inc. (Bauer) move for a stay, pending appeal, of the January 7, 2010 order entered by the United States District Court for the Southern District of New York denying their motion to quash and/or modify subpoenas duces tecum. The court considers whether Bauer's appeal should be dismissed for lack of jurisdiction.
The district court entered judgment in favor of Rome Fastener Corporation et al. (Rome) in the amount of $1,314,816.16. Advanced Magnetic Closures Inc. (AMC) appealed the judgment and that appeal, 2009-1102, is pending. After that appeal was2 filed, Rome served subpoenas ad testificandum and duces tecum on AMC and Bauer. AMC and Bauer moved to quash or modify the subpoenas, and the district court denied that motion. Bauer appealed the district court’s order denying the motion to quash or modify and now seeks a stay, pending appeal.
In Connaught Labs., Inc. v. SmithKline Beecham P.L.C., 165 F.3d 1368 (Fed. Cir. 1999), the court ruled that a nonparty could not obtain appellate review of a discovery order through direct appeal of an order denying a motion to quash. The court ruled that it lacked jurisdiction to review such an order. The court further stated that relief through a writ of mandamus is also not available in this situation. Rather, the court held, “[njonparties may secure review of a discovery order by refusing to comply with it and appealing a consequent contempt order.” Id, at 1370. See also In re Joint E. & S. Dists. Asbestos Litig., 22 F.3d 755 (7th Cir. 1994) (order allowing postjudgment discovery is not appealable but immediate review may be sought of a contempt order if individual is held in criminal contempt for disobeying the previous order requiring production of documents).
In this case, Bauer appeals an order denying a motion to quash. Such an order is not appealable. Connaught, 165 F.3d at 1370. Because this court lacks jurisdiction, the appeal is dismissed.
Accordingly, ITS ORDERED THAT:
(1) The appeal is dismissed for lack of jurisdiction. (2) The motion is moot. (3) The revised ofÏcial caption is reflected above.
3FOR THE COURT
JAN 27 2010
/s/ Jan Horbaly
Date Jan Horbaly
Clerk
cc: Gerald Orseck, Esq.
Norman H. Zivin, Esq.
U.S, COURTF Hi E caus FOR
$17
THE FEDERAL CIRCUIT
- * JAN 27 2010