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Havensight v. Nike: Just Do . . . Not Do What Havensight Did.

I wrote last week about the general requirements for a notice of appeal here.  This week, I’m discussing the oversights of Havensight Capital, LLC in its notice of appeal from its lawsuit against Nike, Inc.

HAVENSIGHT HATES NIKE (AND THE FEELING IS PROBABLY MUTUAL)

Havensight is a competitor of Nike who sued Nike for infringement on Havensight’s soccer brand and lost.  Havensight Capital v. Nike, 891 F.3d 1167, 1169 (9th Cir. 2018).  The day after Havensight lost, it filed a new lawsuit against Nike.  Id.

Havensight then engaged in a bunch of procedural shenanigans that would only confuse you if I tried to relay them here.  Basically, Nike was litigating against the equivalent of an angry toddler armed with permanent markers and rocks.  This resulted in the judge dismissing Havensight’s lawsuit, awarding attorney fees and sanctions against Havensight’s lawyer under Rule 11, and denying Havensight’s motion to reconsider these orders.  Id. at 1169-70.

Undeterred, Havensight continued its ineffective barrage of dull objects at Nike, resulting in the court entering an order declaring Havensight a “vexatious litigant,” and awarding Nike more attorney fees.  Havensight then filed an appeal with the Ninth Circuit.  Id. at 1170-71.

HAVENSIGHT’S DEFECTIVE NOTICE OF APPEAL

As I stated here, you must include all orders you intend to challenge on appeal in your notice of appeal.  In Havensight’s notice, it only mentioned the orders dismissing its complaint, and imposing the Rule 11 sanctions.  It did not mention the later orders denying Havensight’s request for reconsideration, imposing additional sanctions, and declaring Havensight a vexatious litigant.  Id. at 1171.

Under FRAP 3, you must state the orders you are challenging on appeal.  FRAP 3(c)(1)(B).  Appellate courts are courts of limited jurisdiction, and they do not have jurisdiction over orders that are not included in the notice of appeal.  Smith v. Barry, 502 U.S. 244, 248 (1992).

Your failure to designate the order might not be fatal to your appeal, if it is clear from the notice of appeal that you intend to challenge the order and you will be prejudiced by your mistake.  West v. United States, 853 F.3d 520, 523 (9th Cir. 2017).

The Ninth Circuit found that it could not infer any intent from Havensight’s notice of appeal to challenge the subsequent orders, and dismissed Havensight’s appeal to the extent it challenged those rulings.  Havensight, 891 F.3d at 1171.

HAVENSIGHT’S UNTIMELY APPEAL

Once judgment is entered, you must file your notice of appeal within thirty days.  FRAP 4(a).  The time to file the appeal can be extended if a post-judgment tolling motion is filed.  FRAP 4(a)(4)(A)(iv).  Motions to alter or amend a judgment under Rule 59 are considered “tolling motions,” and the time to appeal does not run until 30 days after the grant or denial of those motions.  Id.  A motion to reconsider is generally viewed as a Rule 59 motion for purposes of appeal.

In this case, the district court dismissed Havensight’s complaint on February 18, 2015.  Havensight filed a motion for reconsideration the next day, on February 19, 2015.  The court denied that motion on April 22, 2015.  Judgment was entered on July 18, 2015.  Havensight, 891 F.3d at 1172.   Havensight filed its appeal on October 15, 2015.

Apparently, Havensight argued that because it filed a “tolling” motion, it was entitled to an additional sixty-two days to file its appeal after judgment was entered.  The Ninth Circuit rejected this argument because Havensight’s motion for reconsideration was both filed and resolved before judgment was entered.  Id. at 1173.  Because Havensight did not file its appeal by August 17, 2015, the Ninth Circuit dismissed Havensight’s appeal of the order dismissing its complaint as being untimely.  Id. at 1174.

If you still have any doubt as to whether you should specify every order you intend to appeal in your notice of appeal, follow Nike’s lead and JUST DO IT.

Wait, Writ What? A Crash Course in Appellate Writs

A writ petition is, basically, an early appeal.  Attorneys love to file writ petitions while the case is still going because, in their mind, they don’t have to wait until the bitter end to prove the judge wrong.  Unfortunately, you cannot take anything and everything up on a writ.   Understanding how and when writ relief is appropriate will save you time and your clients money.

WHO CAN FILE A WRIT PETITION

Any party to the proceeding can file a writ petition.  Writ relief is also available to non-parties.  Only parties to the litigation have the right to appeal.  See NRAP 3A.  Thus, writ relief is the only avenue of appellate review for non-parties aggrieved by orders.

Writ relief is the only appellate remedy for attorneys who wish to challenge (1) orders disqualifying counsel, Nev. Yellow Cab Corp. v. Eighth Jud. Dist. Ct., 123 Nev. 44, 49, 152 P.3d 737, 740 (2007), and (2) orders issuing sanctions. Watson Rounds v. Eight Jud. Dist. Ct., 131 Nev., Adv. Op. 79, 358 P.3d 228, 231 (Nev. 2015).  Although they represent parties, an attorney is not a “party” to the litigation who can appeal these orders.  Emerson v. Eighth Judicial Dist. Ct., 127 Nev. 672, 676, 263 P.3d 224, 227 (2011).

Writ relief is also the appropriate remedy for disqualification or peremptory challenges to judges.  See Ivey v. Dist. Ct., 129 Nev. 154, 159, 299 P.3d 354, 357 (2013); Morrow v. Dist. Ct., 129 Nev. 110, 112, 294 P.3d 411, 413 (2013).

For other non-parties, writ relief is the appropriate appellate remedy for orders compelling non-party witnesses to appear and/or participate at trial or in discovery, Quinn v. Eighth Jud. Dist. Ct., 134 Nev., Adv. Op. 5, 410 P.3d 984, 987 (Nev. 2018), and denial of a motion to intervene.  Hairr v. First Jud. Dist. Ct., 132 Nev., Adv. Op. 16, 368 P.3d 1198, 1200 (Nev. 2016).

WHAT TYPE OF WRIT PETITION YOU SHOULD FILE.   

There are two main types of writ petitions available to civil practitioners:  (1) mandamus; and (2) prohibition.  A writ of mandamus is used to order the district court judge to do something.  Aspen Fin. Servs., Inc. v. Eighth Jud. Dist. Ct., 129 Nev. 878, 881, 313 P.3d 875, 877 (2013); see also NRS 34.160.   In contrast to mandamus, a writ of prohibition seeks to prevent the district court from doing something.   Sandpointe Apartments v. Eighth Jud. Dist. Ct., 129 Nev. 813, 817, 313 P.3d 849, 852 (2013); see also NRS 34.320.

You should file a writ of mandamus for the following:

(1)  Challenges to the district court’s discretion in imposing sanctions on a party.  City of Sparks v. Second Judicial Dist. Ct., 112 Nev. 952, 953 n.1, 920 P.2d 1014, 1015 n.1 (1996)

(2)  Issues of law that need clarification (from any form of order – dismissal, summary judgment, etc.).  Paley v. Second Judicial Dist. Ct., 129 Nev. 701, 703, 310 P.3d 590, 592 (2013).

(3) A district court’s refusal to exercise jurisdiction over a party, or the subject matter of the litigation.  Amezcua v. Eighth Judicial Dist. Court of State ex rel. Cnty. of Clark, 130 Nev., Adv. Op. 7, 319 P.3d 602, 603 (2014); State, Through Miller v. Eighth Judicial Dist. Court In & For Clark Cnty., 97 Nev. 34, 35, 623 P.2d 976 (1981).  Mandamus is particularly appropriate for orders quashing service of process.  Jarstad v. Nat’l Farmers Union Prop. & Cas. Co., 92 Nev. 380, 383-84, 552 P.2d 49, 51 (1976).

You should file a writ of prohibition for the following

(1)  Orders requiring improper discovery. Quinn, 134 Nev. at ___, 410 P.3d at 987 (Nev. 2018).  Writs of prohibition are the favored procedural vehicle “to correct an order that compels disclosure of privileged information.”  Wynn Resorts, Ltd. v. Eighth Jud. Dist. Ct., 399 P.3d 334, 341 (Nev. 2017).

(2) Orders denying motions to quash service of process, or involving the exercise of jurisdiction which the district court lacks. Grupo Famsa v. Eighth Jud. Dist. Ct., 132 Nev., Adv. Op. 29, 371 P.3d 1048, 1050 (Nev. 2016).

WHEN YOU SHOULD FILE YOUR PETITION. 

A writ petition can be filed at any time, and there is no specific time by which one must be filed.  See NRAP 21.  This does not, however, mean that you can sit on your writ forever.  “Writ relief is subject to laches.”  State v. Eighth Judicial Dist. Ct. (Anzalone), 118 Nev. 140, 147-48, 42 P.3d 233, 238 (2002).  Laches bars writ relief if (1) “there was an inexcusable delay in seeking the petition,” (2) “an implied waiver arose from the petitioner’s knowing acquiescence in existing conditions,” and (3) the delay prejudiced the respondent.  Id. at 148, 42 P.3d at 238. A petitioner who is aware of their right to bring a writ petition and who offers no convincing explanation for their delay in doing so has inexcusably delayed seeking writ relief.  Bldg. & Constr. Trades Council of N. Nev. v. State, 108 Nev. 605, 611, 836 P.2d 633, 637 (1992).

WHERE YOU FILE YOUR PETITION. 

All writ petitions are initially filed with the Nevada Supreme Court.  See NRAP 21.  The petition can be heard by either the Nevada Supreme Court or the Nevada Court of Appeals.  You must include an NRAP 17 statement in the petition that identifies the court to which the issues should be directed.

WHY YOUR WRIT PETITION MAY BE GRANTED OR DENIED.

Writ relief is not a guarantee.  Writ relief is viewed as an “extraordinary remedy” that is only available if your alleged injury cannot be rectified by a subsequent appeal.  See NRS 34.170; NRS 34.330; see also Aspen Fin. Servs., Inc., 313 P.3d at 877-78.  90% of the time, your writ petition will be denied because you can eventually appeal from the order of which you now complain.

Occasionally, however, the appellate courts will agree to hear a writ petition even if the issue can be resolved in a later appeal.  The Nevada Supreme Court is particularly likely to consider the writ if you can demonstrate that resolution of the issues will promote judicial economy, clarify the law, and/or eliminate other, related litigation.  Yellow Cab of Reno, Inc. v. Second Judicial Dist. Court of State ex rel. Cnty. of Washoe, 127 Nev. 583, 589, 262 P.3d 699, 703 (2011); Williams v. Eight Judicial Dist. Court of State, ex rel. Cnty. of Clark, 127 Nev. 518, 525, 262 P.3d 360, 365 (2011).

These instances are rare.  Unless your issue falls into one of the topic areas listed above, it may be worth saving your time and your client’s money to wait for the appeal.

HOW YOUR WRIT PETITION SHOULD LOOK.  

When you file a writ petition you are the “petitioner,” the district court judge is the “respondent” and your opposing party is the “real party in interest.”  NRAP 21(a)(1).  Your caption should identify the parties in that manner. You have to serve the petition on the district court and your opposing party, as well as a file a notice of writ petition with the district court.  As with appeals, the district court has discretion whether to stay the litigation pending resolution of the writ proceeding.

Your writ petition must set forth: (1) the relief you are seeking, (2) the issues you want decided, (3) the facts necessary for the appellate court to understand the issues, and (4) legal argument as to why the appellate court should grant your writ.  NRAP 21(a)(3).  Writ petitions must be verified, i.e., signed under oath.  NRAP 21(a)(4).  And you should probably include some argument as to why your issue is appropriate for writ relief.

Unlike an appeal, the opposing party may not get a chance to respond.  The appellate court can deny your writ petition without an answer.  NRAP 21(b)(1).  If it determines that an answer is warranted, the appellate court will order the real party in interest, and sometimes the judge, to respond.  NRAP 21(b)(1); NRAP 21(b)(4).  Once the real party in interest responds, you may be asked for a reply, or the court may simply take the writ under consideration.

Writ petitions have to comply with the same formatting requirements as appeal briefs.  NRAP 21(d).  You also have to submit an appendix which complies with Rule 30.  NRAP 21(a)(4).

SO, WILL YOU FILE? 

My rule of thumb regarding writs is only to file if necessary.  Sometimes your client will believe it is necessary against your advice.  Sometimes, you will believe it is necessary only to have the Supreme Court dismiss your petition.  But it is important to know that writ petitions are not simply an appeal on steroids.  You are not automatically granted the right to interlocutory appellate review.

Timely Appeals: Hamer v. Neighborhood Housing Services of Chicago

The notorious RBG laid down the hammer on the Seventh Circuit in Hamer v. Neighborhood Housing Services of Chicago, after the Seventh Circuit held that FRAP 4(a)(5)(C)’s time limitations on filing appeals are jurisdictional.  According to RBG (Justice Ruth Bader Ginsburg), time limitations in FRAP 4(a)(5)(C) are “mandatory” (i.e., follow them) but not jurisdictional.

Charmaine Hamer lost her employment discrimination lawsuit against Neighborhood Housing Services of Chicago.  Six days before the deadline for her to appeal, her attorneys moved to withdraw and requested an extension of the appeal filing deadline.  The district court granted both motions and gave Hamer a 60-day extension on her appeal filing deadline.  The Seventh Circuit dismissed the appeal as untimely, because FRAP 4(a)(5)(C) only allows the district court to grant a 30-day extension.  RBG disagreed.

Statutes vs. Rules

The crux of Hamer is the distinction between statutes and rules.  A statute is enacted by Congress (or a state legislature).  A rule is created by courts.  Both must be followed by litigants, but a litigant’s failure to follow a rule is not necessarily fatal.

In Bowles v. Russell, the United States Supreme Court held that time limitations for filing an appeal which are found in statutes are jurisdictional.  551 U.S. 205, 210-12 (2007).  “Jurisdiction” of federal courts is determined by Congress.  Because Congress can decide what type of cases the federal courts can hear, Congress can naturally also decide when the federal courts can hear these cases.  Id.   Therefore, when Congress enacts a time limit on when an appeal must be filed, an appellant’s failure to follow the statutory time limit requires dismissal because these time limitations are jurisdictional.

Hamer dealt with a rule, not a statute.  According to RBG, the rules are different when it comes to dealing with . . . rules.

RBG Lays Down a Rule About a Rule

Unlike statutes, the federal rules of appellate procedure were created by the courts to promote order in litigation.  Hamer v. Neighborhood Housing Servs. of Chicago, 583 U.S. ____, 183 S. Ct. 13, 17 (Nov. 8, 2017).  While time limits in statutes cannot be waived by the parties, defects in timeliness arising under rules can. Id.

Normally, an appeal from a federal district court to a court of appeals must be filed within thirty (30) days from the entry of the judgment or order.  FRAP 4(a)(1)(A).   A party can move the district court for an extension of the time to appeal.  FRAP 4(a)(5)(A).  The district court can only grant an extension of “30 days after the prescribed time or 14 days after the date when the order granting the extension is entered, whichever is later.”  FRAP 4(a)(5)(C).

The respondents tried to argue that FRAP 4(a)(5)(C) had a “statutory basis” because it is similar to an actual statute, 28 U.S.C. 2107(c).  However, 28 U.S.C. 2107(c) only applies if the appellant did not have notice of the judgment against them.   Hamer was well aware of the order ending her lawsuit.

Because Hamer’s time period to appeal arose from a rule, the Seventh Circuit should not have dismissed her appeal for lack of jurisdiction.  According to RBG, time limitations are only jurisdictional if they are prescribed by Congress.  Time periods for appeals found in the rules may be waived or forfeited.  On remand, the Seventh Circuit will need to decide whether Neighborhood Housing Services’ failure to object to the 60-day (as opposed to 30-day) extension waived any right to contest the timeliness of Hamer’s appeal, and/or whether it should hear the appeal because Hamer relied on the district court’s error in allowing her to file her appeal 60 days after the order dismissing her case.

Moving Forward under Hamer

Hamer is the final say in long debate among the federal appellate courts as to whether an appeal must be dismissed when it is untimely under the Federal Rules of Appellate Procedure or whether the courts may excuse the untimeliness.

Moving forward under Hamer, federal litigants need to be aware of the following:

(1) If your timeline to appeal arises under a statute, you need to file within that timeline;

(2) If your timeline to appeal arises under a rule, you should still file within that timeline, but your failure to do so may not always result in dismissal;

(3) If you are responding to an untimely appeal that was filed pursuant to a rule, object to its untimeliness or the federal court can treat your untimeliness objection as “forfeited” and hear the appeal anyway.

Whatever you do, follow the rules.  Although untimeliness may be forgiven in some cases, I highly doubt an appellate court is going to forgive an untimely appellant who simply disregarded the rules.