Classic Concepts, Inc. v. Linen Source, Inc. ( 2013 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CLASSIC CONCEPTS, INC., a No. 07-56870
New Mexico Corporation,
Plaintiff-Appellant, D.C. No.
2:04-cv-08088-
v. GPS-MAN
LINEN SOURCE, INC., a Florida OPINION
Corporation; HELLENIC RUG
IMPORTS, INC., a New York
Corporation,
Defendants-Appellees.
On Appeal from the United States District Court
for the Central District of California
George P. Schiavelli, District Judge, Presiding
Submitted April 11, 2013*
Pasadena, California
Filed May 30, 2013
*
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
2 CLASSIC CONCEPTS, INC. V. LINEN SOURCE, INC.
Before: Stephen Reinhardt and Mary H. Murguia, Circuit
Judges, and Jack Zouhary, District Judge.**
Opinion by Judge Zouhary;
Concurrence by Judge Reinhardt
SUMMARY***
Appellate Jurisdiction
Dismissing a civil appeal as untimely, the panel held that
an untimely motion for reconsideration under Fed. R. Civ. P.
60(b) did not toll the time for filing a notice of appeal.
Judge Reinhardt concurred in the result.
COUNSEL
Leo E. Lundberg, Jr., Surjit P. Soni and Michael Danton
Richardson, The Soni Law Firm, Pasadena, California, for
Plaintiff-Appellant.
Todd Thibodo and Ankur Tarneja, Law Offices of Todd D.
Thibodo, Encino, California, for Defendants-Appellees.
**
The Honorable Jack Zouhary, United States District Judge for the
Northern District of Ohio, sitting by designation.
***
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
CLASSIC CONCEPTS, INC. V. LINEN SOURCE, INC. 3
OPINION
ZOUHARY, District Judge:
This copyright lawsuit arose when Plaintiff-Appellant
Classic Concepts, Inc. (“Classic”) filed complaints against
Defendants-Appellees Hellenic Rug Imports, Inc.
(“Hellenic”) and Linen Source, Inc. (“Linen Source”)
(collectively, “Defendants”), alleging Defendants infringed
Classic’s “diamond kilim” design by selling rugs and other
home goods bearing the design. In August 2007, after a ten-
day trial, a jury found that Hellenic and Linen Source
infringed Classic’s copyright of the diamond kilim design and
awarded Classic damages of $15,443 against Hellenic and
$878 against Linen Source.
The district court invited input on what to include in a
final judgment, and both parties briefed whether injunctive
relief was appropriate. On September 28, 2007, the district
court entered Judgment awarding damages against Hellenic
and Linen Source, and sub silentio denying injunctive relief,
as follows:
In accordance with the Jury Verdict
returned on August 23, 2007, IT IS HEREBY
ORDERED, ADJUDGED AND DECREED:
That Judgment is hereby entered against
Defendant Linen Source, Inc. (“Linen
Source”) for copyright infringement of
Plaintiff’s “Diamond Kilim” design,
Registration No. VA 1-254-214 (the
“Design”), for which Linen Source shall pay
Plaintiff $878.00 in damages. Linen Source
4 CLASSIC CONCEPTS, INC. V. LINEN SOURCE, INC.
shall also pay prejudgment interest at the rate
of 8.25% per annum.
That Judgment is hereby entered against
Defendant Hellenic Rug Imports, Inc.
(“Hellenic”) for copyright infringement of
Plaintiff’s Design, for which Hellenic shall
pay Plaintiff $11,096 as damages and $4,047
as lost profits for a total of $15,443.00.
Hellenic shall also pay prejudgment interest at
the rate of 8.25% per annum.
That Plaintiff is entitled to recover its costs.
On October 5, 2007, Defendants timely filed a renewed
motion for judgment as a matter of law under Federal Civil
Rule 50(b), as well as a timely motion for a new trial under
Rule 59. The district court denied both motions on October
30, 2007. Classic then filed, without support in the Federal
Civil Rules, a “Motion for a Permanent Injunction” on
November 20, 2007. The district court construed the motion
as one for reconsideration of the September 28 Judgment
under Rule 60(b), and denied that motion on December 4,
2007. The district court noted Classic’s request rehashed
earlier briefing addressing the Judgment:
After the jury’s verdict, the parties each
submitted significant briefing setting forth
their positions on the final form of the
judgment. One of the key issues raised in this
briefing was whether [Classic] was entitled to
a permanent injunction. After reviewing all of
these materials, the Court issued its Judgment
on September 25, 2007. Because Plaintiff’s
CLASSIC CONCEPTS, INC. V. LINEN SOURCE, INC. 5
present Motion addresses the same issue, it
shall be treated as a motion for
reconsideration pursuant to Local Rule 7-18
despite the fact that the original briefing was
not in the form of a motion.
Classic then filed a notice of appeal on December 13, 2007.
This Court lacks jurisdiction to decide an appeal if the
notice of appeal is not timely filed. Tillman v. Ass’n of
Apartment Owners of Ewa Apartments, 234 F.3d 1087, 1089
(9th Cir. 2000). Ordinarily, a party must file a notice of
appeal in a civil case within thirty days of entry of judgment
under Federal Appellate Rule 4(a)(1). The filing of certain
motions, however, tolls the running of that time period. The
2007 version of Federal Appellate Rule 4(a)(4)(A) provides:
If a party timely files in the district court any
of the following motions under the Federal
Rules of Civil Procedure, the time to file an
appeal runs for all parties from the entry of
the order disposing of the last such remaining
motion:
(i) for judgment under Rule 50(b);
(ii) to amend or make additional factual
findings under Rule 52(b), whether or not
granting the motion would alter the judgment;
(iii) for attorney’s fees under Rule 54 if the
district court extends the time to appeal under
Rule 58;
6 CLASSIC CONCEPTS, INC. V. LINEN SOURCE, INC.
(iv) to alter or amend the judgment under Rule
59;
(v) for a new trial under Rule 59; or
(vi) for relief under Rule 60 if the motion is
filed no later than 10 days after the judgment
is entered.
The district court denied Defendants’ Rule 50(b) and Rule
59 motions on October 30, 2007, thereby triggering the thirty-
day deadline set forth in Appellate Rule 4. Classic -- by the
November 29 deadline -- filed neither a notice of appeal nor
a request from the district court for an extension of time.
Consequently, Classic’s December 13, 2007 notice of appeal
was untimely. See Reid Prods., Inc. v. Westport Ins. Corp.,
400 F.3d 1118, 1119 (9th Cir. 2005).
Classic’s motion for a permanent injunction did not toll
the time for filing a notice of appeal. Construing the motion
for permanent injunction as a motion for reconsideration
under Rule 60(b), as the district court did, Classic failed to
file the motion within ten days1 after entry of judgment under
the 2007 version of Federal Appellate Rule 4. See Catz v.
Chalker, 566 F.3d 839, 841 (9th Cir. 2009) (observing that
under Federal Appellate Rule 4, a Rule 60 motion must be
filed within ten days of judgment to toll time for appeal);
1
The 2009 amendments to the Federal Rules of Appellate Procedure
increased the time requirement to twenty-eight days. See Federal
Appellate Rule 4(a)(4)(A)(vi). Even if this Court determined that
retroactive application of the 2009 amendment is “just and practicable,”
Classic’s November 20, 2007 motion for reconsideration remained
untimely. See U.S. Supreme Court Order of March 26, 2009 at
http://www.supremecourt.gov/orders/courtorders/frap09.pdf.
CLASSIC CONCEPTS, INC. V. LINEN SOURCE, INC. 7
Reid, 400 F.3d at 1119 (holding that a late motion for
reconsideration has no tolling effect); Wages v. IRS, 915 F.2d
1230, 1234 (9th Cir. 1990) (holding that an untimely post-
trial motion “does not toll time for appeal from, or affect the
finality of, the original judgment”).
Classic argues that the September 28, 2007 entry was not
final because the district court did not explicitly adjudicate
Classic’s request for a permanent injunction, and cites cases
standing for the proposition that a judgment is not final and
appealable until all issues are addressed and adjudicated.
This argument fails for several reasons.
First, the record indicates the district court entertained the
injunctive relief request and extensive briefing on the subject
prior to entering Judgment, and made the deliberate decision
to deny sub silentio injunctive relief. There was nothing
conditional about the Judgment, which ended the litigation on
the merits.
Second, to the extent Classic believed the Judgment was
lacking, the appropriate vehicle for relief was to file a motion
to alter or amend within ten days2 pursuant to Federal Civil
Rule 59, not wait nearly two months to bring the issue to the
district court’s attention. Classic filed no such motion. If no
time limit existed, litigants could never be certain a district
judgment was final, leaving parties susceptible to new
2
The 2009 amendments also increased this time period to twenty-eight
days. See Federal Civil Rule 59(e). Again, even if this Court determined
that retroactive application of the 2009 amendment to be “just and
practicable,” Classic’s November 20, 2007 motion remained untimely.
See U.S. Supreme Court Order of March 26, 2009 at
http://www.supremecourt.gov/orders/courtorders/frap09.pdf.
8 CLASSIC CONCEPTS, INC. V. LINEN SOURCE, INC.
motions attacking a judgment many months after the entry of
judgment that appears in all respects to be final. Classic’s ex
post facto justification and misapprehension, in the face of
dismissal, do not confer upon us jurisdiction where none
exists.
Finally, Classic waived its appeal of the Rule 60(b) ruling
because Classic did not address that ruling in its appellate
briefing, instead addressing only the merits of its permanent
injunction request. See, e.g., Smith v. Marsh, 194 F.3d 1045,
1052 (9th Cir. 1999) (“[O]n appeal, arguments not raised by
a party in its opening brief are deemed waived.”).
Unfortunately, the parties failed to examine the timeliness
of this appeal, which has caused the needless expenditure of
client and court resources. More troublesome is the fact that
Classic’s counsel was also the appellant’s counsel of record
in Reid where this Court dismissed the appeal as untimely,
holding that a late motion for reconsideration had no tolling
effect upon the notice of appeal deadline set forth in Rule 4.
400 F.3d at 1118. We lack jurisdiction, and this appeal is
dismissed.
DISMISSED.
REINHARDT, Circuit Judge, concurring.
I concur in the result.