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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.

The ABC’s of Notices of Appeal

To begin your appeal, you must file a notice of appeal.  NRAP 3; FRAP 3.  Although it seems simple, you can really screw your appeal up if you do not know what the notice of appeal must contain.  Here’s a quick breakdown:

WHO CAN FILE THE NOTICE OF APPEAL

A lawyer with client authority

Generally, your counsel (or yourself, if you are unrepresented and appearing pro se) files the notice of appeal.  However, an attorney cannot file a notice of appeal on your behalf without your consent.  The Comm’n on Ethics of the State of Nev. v. Hansen, 134 Nev., Adv. Op. 40, 419 P.3d 140, 142 (Nev. 2018).  If your attorney files a notice of appeal on your behalf before you have given them consent, the notice of appeal is defective. Id.

Hansen is the most recent decision of the Nevada Supreme Court to address effective notices of appeal.  Hansen involves the tragic tale of poorly placed hunting traps, two assemblyman, one self-proclaimed “local watchdog,”  the Nevada Commission on Ethics, and a partridge in a pear tree.  Id. at 140.

In a crazy plot twist, the partridge was not snared by the traps.  Instead, the assemblyman who placed them was snared, or cited, by the Nevada Department of Wildlife for violating a statute regarding their placement.  After his fellow assemblyman requested a Legislative Counsel Bureau opinion as to whether the traps violated the statute, a local watchdog then filed an ethics complaint against both men with the Commission for allegedly abusing their positions.   Id. at 140.

After the Commission refused to dismiss the ethics complaint, the assemblymen filed a petition for judicial review.  Id.  The district court agreed that the ethics complaint should be dismissed.  Id.  The Commission did not, and filed a notice of appeal.  Id.

When I say “Commission,” I actually mean the Commission’s counsel filed the notice of appeal, and he did so after only consulting with the chair and executive director rather than the entire Commission.  Id.  When you are a lawyer, and you represent an organization, the entire organization is the client.  NRPC 1.13(a).

In Hansen, the Nevada Supreme Court dismissed the appeal because the “client,” i.e., the Commission, did not give the attorney authorization prior to filing the notice of appeal.  Id. at 142.  The Court reasoned that an appeal is a decision that a public body must hold a public meeting and vote upon because it requires commitment of public funds.  Id.  Since that did not happen prior to filing the notice of appeal, the Court dismissed the appeal for being defectively noticed.  Id.

Multiple parties with common interests on appeal

With authority, your attorney can file a notice of appeal on your behalf.  If you are an attorney who represents multiple clients, you can file a “joint notice of appeal.”  NRAP 3(b)(1); FRAP 3(b)(1).  If you have co-parties whose interests are aligned with yours but who are represented by separate counsel, you can also file a joint appeal.  Id.  On appeal, the parties will be treated as individual appellants. Id.   You can also file separate notices of appeal, and seek consolidation or joinder.  NRAP 3(b)(2); FRAP 3(b)(2).

WHAT HAPPENS IF YOU SCREW UP THE NOTICE OF APPEAL 

Even if you screw up the notice of appeal, the district court clerk must still file it and notify the Nevada Supreme Court, and the Nevada Supreme Court clerk must accept it and assign it an appeal number.  NRAP 3(a)(2)-(3).  The Ninth Circuit does not require the same of its courts, and a procedurally defective notice of appeal may result in immediate dismissal without prejudice.  See FRAP 3.

The only court that can dismiss an appeal for a defective notice of appeal is the appellate court, not the district court.  The district court’s obligation is to keep a clear record of the case, including any deficiency in the notice of appeal.  Whitman v. Whitman, 108 Nev. 949, 951, 840 P.2d 1232, 1233 (1992).  While the district court should inform the appellant of procedural deficiencies, it must still file the notice of appeal. Id.

WHAT YOU NEED TO INCLUDE IN THE NOTICE OF APPEAL 

The notice of appeal needs to include three main items:

1.  The Identity of the Parties on Appeal 

The notice of appeal should designate the appellant, the respondent, and any other interested parties.  NRAP 3(c)(1)(A); FRAP 3(c)(1)(A).  If you have counsel, the notice of appeal should also state which parties that attorney represents on appeal. Id.

2.  The Judgment or Order Being Appealed 

This is the most important thing to include in your notice of appeal.  Any “appealable judgment or order that is not designated in the notice cannot be considered on appeal.”  Abdullah v. State, 129 Nev. 86, 91, 294 P.3d 419, 422 (2013).  If you leave it out, you have not appealed it.  Always identify all orders and judgments on appeal.  NRAP 3(c)(1)(B); FRAP 3(c)(1)(B).

3.  The Court To Which You Are Appealing 

You must state the court to which you hope to appeal.  NRAP 3(c)(1)(C); FRAP 3(c)(1)(C). This is very simple. In Nevada, all appeals are first filed in the Nevada Supreme Court.  If you appeal from district court, you simply have to state you are appealing to the Nevada Supreme Court.  Once the appeal is docketed, and your briefs are filed, the Nevada Supreme Court will determine whether to assign the case to the Court of Appeals.  NRAP 17.

In the Ninth Circuit, your appeal will almost always go to the Ninth Circuit Court of Appeals.

HOW YOU FILE A NOTICE OF APPEAL

Your notice of appeal must be filed with the district court clerk.  NRAP 3(d); FRAP 3(a).  In Nevada, you must serve a copy on all other parties by either mailing it to their last known address, or their lawyer.  NRAP 3(d)(1).  In the Ninth Circuit, the federal district court clerk must serve the notice on all parties.  FRAP 3(d)(1).  If the federal district court clerk fails to serve the notice of appeal, your notice of appeal is still effective.  FRAP 3(d)(3).