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.