Advanced Magnetic Closures, Inc. v. Rome Fastener Corporation, Rome Fastener Sales Corporation, Romag Fasteners, Inc.

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# 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,

V.
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.
PER CURIAM.

## 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 was

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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, "[n]onparties 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,

IT IS ORDERED THAT:

(1)
) The appeal is dismissed for lack of jurisdiction.

(2)
2) The motion is moot.

(3)
The revised official caption is reflected above.

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FOR THE COURT

JAN 2 7 2010

Date

/s/ Jan Horbaly
Jan Horbaly
Clerk

cc:

Gerald Orseck, Esq.

Norman H. Zivin, Esq.

s17

FILED
U.S. COURT OF APPEALS FOR
THE FEDERAL CIRCUIT
JAN 2 7 2010

JAN HORBALY
CLERK

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