Fourth Circuit: Nonparty Attorney May Immediately Appeal a Separate Civil-Contempt Sanction, and Civil Contempt Requires Clear Proof of Harm (Not Punishment)

I. Introduction

In Dmarcian, Inc. v. Pressly McAuley Millen (4th Cir. July 10, 2026), the Fourth Circuit vacated a district court’s civil-contempt adjudication against Pressly Millen, a lawyer who was not a party to the underlying commercial/IP dispute pending in the Western District of North Carolina. The underlying litigation—dmarcian, Inc. (“dInc”) versus DMARC Advisor BV (“dBV”)—involved claims arising from a “broken business relationship” and spawned parallel proceedings in a Dutch court.

Two issues dominated the appeal:

  1. Appellate jurisdiction: Whether an attorney, as a nonparty held in civil contempt during ongoing litigation, may immediately appeal the contempt order despite the lack of final judgment in the main case.
  2. Merits of civil contempt: Whether civil contempt may stand when the movant does not present clear and convincing evidence of harm caused by the alleged noncompliance—and whether a “civil” sanction that looks punitive exceeds civil-contempt limits.

II. Summary of the Opinion

The Fourth Circuit held:

  • Jurisdiction existed under 28 U.S.C. § 1291 because Millen was a nonparty, and the sanction imposed on him was a distinct contempt sanction that finally resolved the only issue relating to him.
  • On the merits, the district court abused its discretion by finding Millen in civil contempt without clear and convincing evidence that his alleged noncompliance caused harm to dInc—an essential element of civil contempt in this Circuit.

The court therefore vacated the contempt adjudication and sanction “as to Millen.”

III. Analysis

A. Precedents Cited

1. Finality and interlocutory review of contempt

  • United States ex rel. Lutz v. United States, 853 F.3d 131 (4th Cir. 2017): cited for the definition of a “final” decision—one where “nothing remains for the district court to do except execute the judgment.” This framed why civil contempt usually is not final for parties.
  • In re Bestwall, LLC, 99 F.4th 679 (4th Cir. 2024): invoked by dInc to argue the contempt order was interlocutory. The Fourth Circuit distinguished it because Bestwall involved joint and several sanctions against parties and counsel (creating “congruence of interest” and delaying appeal), whereas Millen’s sanction was separate from dBV’s monetary sanction.
  • United States v. Myers, 593 F.3d 338 (4th Cir. 2010): cited for the general rule that parties usually must await final judgment to appeal civil contempt, and (via later citation) for the principle that nonparty contempt can be immediately appealable.
  • United States Cath. Conf. v. Abortion Rts. Mobilization, Inc., 487 U.S. 72 (1988): the keystone jurisdictional authority—nonparties held in civil contempt may appeal immediately because contempt is typically a final adjudication of the nonparty’s rights.
  • In re Under Seal, 749 F.3d 276 (4th Cir. 2014): reinforced immediate appealability of contempt orders against nonparties.
  • United States v. Accetturo, 842 F.2d 1408 (3d Cir. 1988) and United States v. Dowell, 257 F.3d 694 (7th Cir. 2001): persuasive authority supporting immediate appeal for nonparty attorneys subject to coercive contempt.
  • Algeran, Inc. v. Advance Ross Corp., 759 F.2d 1421 (9th Cir. 1985): cited (via Bestwall) for the idea that joint sanctions can create a “congruence of interest” requiring counsel to await final judgment. The court used this concept mainly to show why it did not apply here.

2. Elements, purpose, and limits of civil contempt

  • Consumer Fin. Prot. Bureau v. Klopp, 957 F.3d 454 (4th Cir. 2020): provided the standard of review—abuse of discretion, with factual findings reviewed for clear error and legal questions de novo.
  • Rainbow Sch., Inc. v. Rainbow Early Edu. Hldgs., 887 F.3d 610 (4th Cir. 2018) (citing United States v. Ali, 874 F.3d 825 (4th Cir. 2017)): supplied the four-element test for civil contempt, including the critical fourth element: the violation caused the movant harm.
  • In re Gen. Motors Corp., 61 F.3d 256 (4th Cir. 1995) and Int'l Union, United Mine Workers of Am. v. Bagwell, 512 U.S. 821 (1994): emphasized that civil contempt is remedial, not punitive—its function is to correct or remedy, not to punish past conduct.
  • Cromer v. Kraft Foods N. Am. Inc., 390 F.3d 812 (4th Cir. 2004): distilled the permissible aims of civil contempt sanctions into two categories: (1) coercing compliance, or (2) compensating losses caused by contempt. The court used Cromer to assess whether Millen’s sanction fit either category.
  • United States v. United Mine Workers of Am., 330 U.S. 258 (1947): required consideration of potential harm from continued noncompliance, efficacy of the sanction, and the burden on the contemnor. The court found the district court did not conduct this analysis.
  • Buffington v. Baltimore County, 913 F.2d 113 (4th Cir. 1990): cited (through Cromer) for the principle that appellate courts look to the substance of the sanction, not the label the trial court assigns.

3. Contextual references

  • dmarcian, Inc. v. dmarcian Eur. BV, 60 F.4th 119 (4th Cir. 2023) (“dmarcian I”): supplied background, including the preliminary injunction and the characterization of the dispute.
  • dmarcian, Inc. v. DMARC Advisor BV, No. 1:21-cv-67, 2023 WL 4223536 (W.D.N.C. June 27, 2023): the district court’s “correction order” decision that set the stage for the contempt proceedings.
  • dmarcian, Inc. v. DMARC Advisor BV, No. 1:21-cv-67, 2024 WL 5193519 (W.D.N.C. Dec. 20, 2024): the contempt order under review as to Millen.
  • Abitron Austria GmbH v. Hetronic Int'l, Inc., 600 U.S. 412 (2023): noted in a footnote to contextualize the district court’s earlier view about extraterritorial application of the injunction. (It did not drive the holding here but signals sensitivity to evolving doctrine intersecting with cross-border disputes.)
  • dmarcian, Inc. v. DMARC Advisor BV, No. 23-1790(L), --- F.4th --- (4th Cir. 2026) (“dmarcian II”): a same-day companion decision addressing dBV’s appeal; referenced here to contrast “refundability” of monetary sanctions with irreparable reputational/economic harms from attorney practice restrictions.

B. Legal Reasoning

1. Jurisdiction: nonparty attorney + separate sanction = immediate appeal

The court applied a straightforward finality principle: civil contempt is usually interlocutory as to litigants because it does not end the case. But nonparties have no later “final judgment” from which to appeal their contempt adjudication in a meaningful way; thus contempt against them is treated as final.

The crucial doctrinal move was distinguishing In re Bestwall, LLC. Bestwall’s joint and several sanctions tied counsel’s fate to the party’s ongoing litigation posture, justifying delay of review. Here, the district court imposed:

  • a $400,000 sanction on dBV (not at issue in this appeal), and
  • a separate sanction on Millen: a temporary bar from practicing in federal courts in the Western District of North Carolina, potentially lasting until the case ended (or earlier if Millen filed a corrective affidavit and apology to the Dutch court).

Because Millen’s sanction was not jointly imposed and created harms that could not be “refunded” later (unlike money), the contempt order finally determined his rights and was immediately appealable.

2. Merits: civil contempt requires proof of harm; punitive “civil” sanctions are impermissible

The Fourth Circuit narrowed the merits inquiry to one element: harm. Under Rainbow Sch., Inc. v. Rainbow Early Edu. Hldgs., dInc had to prove by clear and convincing evidence that Millen’s violation of the correction order caused it harm.

The court rejected dInc’s asserted harms largely as speculation and mismatch in time:

  • Any harm stemming from misrepresentations that led the Dutch court to deny a stay occurred before the June 27, 2023 correction order and therefore could not satisfy harm caused by failure to comply with that order.
  • The correction order itself—filed with the Dutch court—already contained the district court’s views and listed the specific “corrective” information that the separate statement was supposed to include. The Dutch court later adopted the district court’s view and stayed the Dutch proceeding in December 2023.
  • dInc did not prove that the missing separate statement would have produced a more favorable or faster outcome; it only hypothesized that it would have restrained Dutch counsel (Meijboom) from continuing to argue against a stay. The record instead suggested Meijboom remained steadfast in disagreement.

The court also scrutinized the nature of the sanction. Civil contempt must be remedial—either coercing compliance or compensating losses. A practice ban lasting through the completion of the litigation, especially where the district court described Millen’s role as “one small slice,” looked punitive rather than remedial, and the district court did not explain why that particular sanction was necessary to achieve compliance.

Finally, the court faulted the district court for not applying the structured considerations identified in United States v. United Mine Workers of Am.—potential harm from continued noncompliance, efficacy, and burden on the contemnor—before imposing so severe a restriction.

C. Impact

1. Clearer path to immediate appellate review for sanctioned nonparty attorneys

The decision strengthens a practical jurisdictional rule in the Fourth Circuit: when an attorney is a nonparty and receives a distinct contempt sanction (especially one affecting professional practice), the attorney can usually obtain immediate appellate review under § 1291—even while the underlying litigation continues.

2. Reinforcement that “harm” is not optional in civil contempt

The opinion operationalizes the fourth element from Rainbow Sch., Inc. v. Rainbow Early Edu. Hldgs. as a real evidentiary burden. Movants must connect the alleged violation to concrete loss or to a demonstrable need for coercion. Post hoc assertions of “delay” or “expense” must be supported by evidence tied to the period after the order and to the contemnor’s conduct.

3. Limits on recharacterizing punitive discipline as “civil contempt”

The court signaled that restrictions with substantial reputational and economic consequences—such as a temporary practice ban—will be examined for their true function. If the sanction primarily punishes past conduct rather than coercing compliance or compensating losses, it risks invalidation as an improper use of civil contempt.

4. Cross-border litigation management: caution with corrective orders and contempt leverage

Although the case arose from cross-border proceedings (North Carolina and the Netherlands), the holding is not about international comity as such. Still, the decision warns that when a U.S. court orders parties or counsel to “correct” positions taken in a foreign tribunal, contempt sanctions—especially against counsel—must remain anchored in civil-contempt purposes and proven harm, not frustration with the foreign-case posture.

IV. Complex Concepts Simplified

Civil contempt
A court tool to enforce compliance with court orders. It is supposed to be remedial—either forcing compliance going forward or compensating the opposing party for losses caused by the violation.
Criminal vs. civil contempt
Criminal contempt punishes past misconduct and requires heightened procedural protections. Civil contempt is not supposed to punish; if a “civil” sanction functions like punishment, courts may treat it as improper in a civil-contempt posture.
Final order (28 U.S.C. § 1291)
An order is generally appealable when it ends the matter for the appellant. Even if a case continues for the parties, a nonparty contempt adjudication can be “final” as to the nonparty because it fully resolves their status.
Clear and convincing evidence
A higher burden than “more likely than not.” The movant must present strong, persuasive proof of each required element—here, including that the violation actually caused harm.

V. Conclusion

Dmarcian, Inc. v. Pressly McAuley Millen delivers two practical rules. First, a nonparty attorney may immediately appeal a civil-contempt order when the sanction is separate and finally determines the attorney’s rights, even if the underlying case is ongoing. Second, civil contempt in the Fourth Circuit demands clear and convincing proof of harm (or remedial necessity); sanctions that are functionally punitive—especially severe restrictions on the right to practice—cannot be sustained on speculation or generalized assertions of delay.