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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 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.


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.


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.

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.