Nutrition Distribution LLC v. Ironmag Labs, LLC

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
NUTRITION DISTRIBUTION LLC, an No. 19-55251
Arizona Limited Liability Company,
Plaintiff-Appellant, D.C. No.
2:15-cv-08233-
v. R-JC
IRONMAG LABS, LLC, a Nevada
Limited Liability Company; ROBERT ORDER AND
DIMAGGIO, an individual; IRON MAG AMENDED
RESEARCH, a Nevada limited liability OPINION
company,
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California
Manuel L. Real, District Judge, Presiding
Submitted May 5, 2020 *
Pasadena, California
Filed August 25, 2020
Amended October 29, 2020
*
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
2 NUTRITION DISTRIBUTION V. IRONMAG LABS
Before: Milan D. Smith, Jr., Bridget S. Bade, and
Daniel A. Bress, Circuit Judges.
Order;
Opinion by Judge Bress
SUMMARY **
Appellate Jurisdiction / Attorneys’ Fees
The panel filed (1) an order amending its opinion and
denying on behalf of the court a petition for rehearing en
banc, and (2) an amended opinion dismissing as untimely
plaintiff’s appeal from the district court’s judgment and
affirming the district court’s post-judgment denial of
attorneys’ fees in an action under the Lanham Act.
On November 16, 2018, on cross motions for summary
judgment, the district court rejected plaintiff’s claim for
monetary relief, issued an injunction in favor of plaintiff, and
denied plaintiff’s request for attorneys’ fees under the
Lanham Act. On December 13, 2018, the district court
issued findings of fact and conclusions of law and entered
judgment. On December 27, 2018, plaintiff moved for
attorneys’ fees under Federal Rule of Civil Procedure 54(d).
The district court denied the post-judgment fees motion on
January 30, 2019, and plaintiff filed a notice of appeal on
March 1, 2019, within 30 days of the ruling on the fees
motion.
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
NUTRITION DISTRIBUTION V. IRONMAG LABS 3
Under Federal Rule of Appellate Procedure 4(a)(1)(A),
a notice of appeal must be filed within 30 days after entry of
the judgment or order appealed from. The panel held that
the notice of appeal was untimely as to the district court’s
judgment because the motion for attorneys’ fees did not
itself extend the time to appeal, and the district court did not
enter an order extending the time pursuant to Federal Rule
of Civil Procedure 58. Further, agreeing with the Sixth
Circuit, the panel held that the fees motion could not be
recharacterized as a Rule 59 motion to alter or amend the
judgment for purposes of extending the time to appeal.
The panel held that the notice of appeal was timely as to
the district court’s later order denying attorneys’ fees. The
panel held that the district court properly exercised its
discretion in denying fees under the Lanham Act, which
allows an award of attorneys’ fees in exceptional cases.
COUNSEL
Robert Tauler and Valerie Saryan, Tauler Smith LLP, Los
Angeles, California, for Plaintiff-Appellant.
Treg A. Julander, Ostergar Law Group PC, Irvine,
California, for Defendants-Appellees.
4 NUTRITION DISTRIBUTION V. IRONMAG LABS
ORDER
The court’s opinion filed August 25, 2020, and appearing
at 972 F.3d 1088 (9th Cir. 2020), is hereby amended. An
amended opinion is filed concurrently with this order.
With this amended opinion, the panel has voted to deny
the petition for rehearing en banc.
The full court has been advised of the petition for
rehearing en banc, and no judge has requested a vote on
whether to rehear the matter en banc. Fed. R. App. P. 35.
The petition for rehearing en banc is DENIED. No
subsequent petitions for panel rehearing or rehearing en banc
shall be permitted.
OPINION
BRESS, Circuit Judge:
Although appellant did not file this appeal to present the
question whether its notice of appeal was timely, that is now
the principal issue we must resolve. Generally, a notice of
appeal in a civil case must be filed “within 30 days after
entry of the judgment or order appealed from.” Fed. R. App.
P. 4(a)(1)(A). After the district court entered judgment in
this case, appellant could have filed a notice of appeal within
30 days but did not. Instead, appellant filed a post-judgment
motion for attorneys’ fees under Federal Rule of Civil
Procedure 54(d) and then filed a notice of appeal 30 days
after the district court denied that fees motion. The notice of
appeal purported to appeal both the later denial of fees and
NUTRITION DISTRIBUTION V. IRONMAG LABS 5
the underlying judgment, which by that point had been
entered 78 days prior.
We hold that the notice of appeal was untimely as to the
district court’s underlying judgment. The Federal Rules are
clear that “[o]rdinarily, the entry of judgment may not be
delayed, nor the time for appeal extended, in order to tax
costs or award fees.” Fed. R. Civ. P. 58(e). A motion for
attorneys’ fees does not extend the time to appeal the
underlying judgment unless the district court so orders under
Rule 58(e). In this case, appellant did not seek such an order,
nor did the district court enter one. Appellant’s attempt to
now save its untimely appeal of the underlying judgment by
recasting its fees motion as a Rule 59 motion to alter or
amend the judgment likewise fails. The 1993 amendments
to the Federal Rules and the Supreme Court precedent that
gave rise to them make clear that attorneys’ fees motions
cannot be recharacterized as Rule 59 motions to extend the
time to appeal an underlying judgment.
Because appellant did not file a notice of appeal within
30 days of the district court’s judgment or obtain a Rule
58(e) order extending the time to appeal, the notice of appeal
was untimely as to the district court’s underlying judgment.
The notice of appeal was timely as to the district court’s later
order denying attorneys’ fees. We affirm the denial of fees,
and otherwise dismiss the appeal for lack of jurisdiction.
I
Appellant Nutrition Distribution LLC filed over eighty
false advertising lawsuits between 2015 and 2018. This is
one of them. Here, Nutrition Distribution alleged that
Appellee IronMag Labs, LLC violated the Lanham Act,
15 U.S.C. §§ 1051–1141n, by falsely advertising IronMag’s
6 NUTRITION DISTRIBUTION V. IRONMAG LABS
nutritional supplements as having “no toxicity” or
“unwanted side effects.”
Following discovery, the parties cross moved for
summary judgment. On November 16, 2018, the district
court granted in part and denied in part the motions. The
district court rejected Nutrition Distribution’s claim for
monetary relief because there was “no genuine dispute of
fact regarding whether [Nutrition Distribution] ha[d] shown
any injury caused by” IronMag’s advertising. But the
district court issued an injunction because IronMag’s
statements were likely to deceive consumers. In the same
order, the district court denied Nutrition Distribution’s
request for attorneys’ fees, finding that the case was not
“exceptional,” as required for an award of fees under the
Lanham Act. See 15 U.S.C. § 1117(a).
On December 13, 2018, the district court issued findings
of fact and conclusions of law consistent with its November
16, 2018 order. The district court also entered judgment that
same day in a separate document. See Fed. R. Civ. P. 58(a).
Nutrition Distribution did not file a notice of appeal at this
time.
Instead, on December 27, 2018, Nutrition Distribution
filed a motion for attorneys’ fees under Federal Rule of Civil
Procedure 54(d). Like its prior fee request, Nutrition
Distribution argued that the case was “exceptional” under
the Lanham Act. The district court denied Nutrition
Distribution’s post-judgment fees motion on January 30,
2019.
Nutrition Distribution filed a notice of appeal on
March 1, 2019, within 30 days of the ruling on the fees
motion. The notice of appeal purported to appeal both the
district court’s underlying December 13, 2018 judgment and
NUTRITION DISTRIBUTION V. IRONMAG LABS 7
its January 30, 2019 denial of attorneys’ fees. In this court,
IronMag moved to dismiss the appeal as untimely. After a
motions panel denied that request without prejudice,
IronMag renewed the argument in its answering brief.
II
Because the 30-day period in Federal Rule of Appellate
Procedure 4(a)(1)(A) is based in statute, see 28 U.S.C.
§ 2107(a), the “timely notice of appeal is a non-waivable
jurisdictional requirement.” Stephanie-Cardona LLC v.
Smith’s Food & Drug Ctrs., Inc., 476 F.3d 701, 703 (9th Cir.
2007); Bowles v. Russell, 551 U.S. 205, 212–13 (2007). If
the time to appeal ran from the December 13, 2018 entry of
judgment, Nutrition Distribution’s appeal of that judgment
is untimely. If, however, the time to appeal was extended
until the district court disposed of Nutrition Distribution’s
motion for attorneys’ fees, its appeal of the underlying
judgment is timely.
We hold that Nutrition Distribution’s appeal of the
December 13, 2018 judgment is untimely and dismiss it for
lack of jurisdiction. We take this opportunity to address the
rules and precedents that compel this conclusion, for the
benefit of litigants who wish to ensure the timeliness of their
appeals in cases involving post-judgment motions for
attorneys’ fees.
A
The Federal Rules of Appellate and Civil Procedure
work in combination to set forth the rules governing when
notices of appeal must be filed. Typically, a notice of appeal
in a civil case “must be filed with the district clerk within
30 days after entry of the judgment or order appealed from.”
Fed. R. App. P. 4(a)(1)(A). The time to appeal generally
8 NUTRITION DISTRIBUTION V. IRONMAG LABS
runs from the entry of judgment. Fed. R. App. P.
4(a)(7)(A)(ii); see Fed. R. Civ. P. 58(a).
But rules often have exceptions. As relevant here,
Federal Rule of Appellate Procedure 4(a) specifies that the
time to file a notice of appeal is extended if a party timely
files certain qualifying motions in the district court:
(A) If a party files in the district court any of
the following motions under the Federal
Rules of Civil Procedure—and does so
within the time allowed by those rules—the
time to file an appeal runs for all parties from
the entry of the order disposing of the last
such remaining motion:
...
(iii) for attorney’s fees under Rule 54 if
the district court extends the time to
appeal under Rule 58; [or]
(iv) to alter or amend the judgment under
Rule 59;
....
Fed. R. App. P. 4(a)(4)(A).
Rule 4(a)(4)(A) lists various other qualifying motions,
but for ease of exposition we have quoted above the ones
that matter here. It is important to see that this Rule treats
motions for attorneys’ fees differently from other qualifying
motions, the filing of which extends the time to appeal: an
attorneys’ fees motion, unlike the other motions listed,
requires additional action by the district court. Specifically,
NUTRITION DISTRIBUTION V. IRONMAG LABS 9
the time to file an appeal runs from the denial of an
attorneys’ fees motion “if the district court extends the time
to appeal under Rule 58.” Fed. R. App. P. 4(a)(4)(A)(iii)
(emphasis added). That is a reference to Federal Rule of
Civil Procedure 58(e), which states:
Ordinarily, the entry of judgment may not be
delayed, nor the time for appeal extended, in
order to tax costs or award fees. But if a
timely motion for attorney’s fees is made
under Rule 54(d)(2), the court may act before
a notice of appeal has been filed and become
effective to order that the motion have the
same effect under Federal Rule of Appellate
Procedure 4(a)(4) as a timely motion under
Rule 59.
Fed. R. Civ. P. 58(e).
Together, Rule 58(e) and Federal Rule of Appellate
Procedure 4(a)(4)(A)(iii) give district courts the ability to
ensure that an attorneys’ fees request is treated like a Rule
59 motion for purposes of extending the time for filing a
notice of appeal. See, e.g., Ray Haluch Gravel Co. v. Cent.
Pension Fund of Int’l Union of Operating Eng’rs &
Participating Emps., 571 U.S. 177, 186–87 (2014); Moody
Nat’l Bank of Galveston v. GE Life & Annuity Assurance
Co., 383 F.3d 249, 252–53 (5th Cir. 2004). As noted above,
filing a Rule 59 motion extends the time for filing a notice
of appeal, so that the deadline to appeal runs from the order
disposing of the Rule 59 motion. See Fed. R. App.
P. 4(a)(4)(A)(iv).
10 NUTRITION DISTRIBUTION V. IRONMAG LABS
Rule 58(e) was added to the Federal Rules in 1993. 1 As
the Advisory Committee explained, “[t]his revision permits,
but does not require, the court to delay the finality of the
judgment for appellate purposes under revised Fed. R. App.
P. 4(a) until the fee dispute is decided.” Fed. R. Civ. P. 58,
adv. comm. note (1993). To obtain such an extension
“requires entry of an order by the district court before the
time a notice of appeal becomes effective for appellate
purposes.” Id. The upshot is that a motion for attorneys’
fees does not extend the time to appeal “unless a district
court, acting under Rule 58, enters an order extending the
time for appeal.” Fed. R. App. P. 4, adv. comm. note (1993);
see also Stephanie-Cardona, 476 F.3d at 705 (“The time to
appeal is not extended unless the district court, pursuant to
its authority under Fed. R. Civ. P. 58[(e)], orders that an
attorney’s fees motion has the effect of delaying the clock
for filing the notice of appeal.”); Moody, 383 F.3d at 252 (“In
1993, Appellate Rule 4(a)(4) was amended to include among
the motions that will toll the time for filing a notice of appeal
motions for attorney’s fees under Rule 54 if the district court
extends the time to appeal under Rule 58.”).
Once judgment is entered, and absent the filing of a
different qualifying motion that would extend the time for
filing a notice of appeal, a party who has moved for
attorneys’ fees has two main options for ensuring a timely
appeal of the underlying judgment:
1
The 1993 amendments housed this provision in Rule 58(c)(2), but
it was later relocated to Rule 58(e) by the 2007 amendments to the
Federal Rules. See Heck v. Triche, 775 F.3d 265, 275 n.9 (5th Cir. 2014).
For ease of reference, we refer to the rule as Rule 58(e) throughout this
opinion.
NUTRITION DISTRIBUTION V. IRONMAG LABS 11
First, [a party] may appeal the fee award as it
would any final judgment. . . . If the party
ha[s] also appealed the underlying merits
judgment—as is usually the case—the two
appeals would proceed independently, but
either party could petition for consolidation
[in the court of appeals]. Second, the party
could move under Fed. R. Civ. P. 58 to
enlarge the time to appeal the underlying
judgment until the fee judgment is rendered.
The party could then appeal the merits
judgment and the fee award together.
Cal. Med. Ass’n v. Shalala, 207 F.3d 575, 576 (9th Cir.
2000) (citations omitted). The first option requires two
notices of appeal, the second option just one.
Perhaps due to a healthy lawyerly paranoia for missing
deadlines, common experience indicates that many litigants
choose the first option. Consolidating the appeals in this
circumstance is straightforward, and there is no penalty for
timely (but separately) appealing a judgment and a later-
issued fee decision. See Fed. R. App. P. 4(a)(4)(B)(i). 2
2
Premature notices of appeal once created serious problems. Before
1993, the Federal Rules of Appellate Procedure provided that a notice of
appeal “shall have no effect” if it was filed before the district court ruled
on a qualifying post-judgment motion that extended the time to appeal.
Fed. R. App. P. 4(a)(4)(A) (1979). This created a “dire trap for the
unwary,” because a litigant who failed to file a new notice of appeal after
a post-judgment motion was adjudicated “lost [its] chance to appeal.”
16A Charles Alan Wright et al., Federal Practice & Procedure § 3950.4,
at 366 (5th ed. 2019) (“Wright & Miller”); see also Orr v. Plumb,
884 F.3d 923, 927 (9th Cir. 2018) (explaining that confusion over a
judgment’s finality “could have harsh consequences, particularly with
12 NUTRITION DISTRIBUTION V. IRONMAG LABS
B
Nutrition Distribution did not file a notice of appeal
within 30 days of the district court’s December 13, 2018
judgment. Nutrition Distribution also did not file a motion
under Rule 58(e) seeking an order that the time to appeal
should run from the disposition of its post-judgment
attorneys’ fees motion. Nor did the district court enter such
an order. This leaves Nutrition Distribution in the
unenviable position of asking that its motion for attorneys’
fees—which was clearly styled as such and requested fees
under Rule 54(d)—be recharacterized as a motion to alter or
amend the judgment under Rule 59.
Our cases allow us to reconstrue a motion filed in the
district court as part of ascertaining whether an appeal is
timely. See, e.g., United States ex rel. Hoggett v. Univ. of
Phx., 863 F.3d 1105, 1108 (9th Cir. 2017) (“A motion’s
‘nomenclature is not controlling.’ Instead, ‘we construe [the
motion], however styled, to be the type proper for the relief
requested.’”) (alteration in original) (quoting Miller v.
Transamerican Press, Inc., 709 F.2d 524, 527 (9th Cir.
1983)). And if Nutrition Distribution’s Rule 54(d) motion
for attorneys’ fees could be recharacterized as a Rule 59
motion, the appeal of the district court’s underlying
judgment would be timely, because a Rule 59 motion
the rule then in effect that a premature notice of appeal was ineffectual
if certain post-decision motions were also filed”). The 1993 amendments
to the Federal Rules cured this problem by allowing a previously-filed
notice of appeal to become effective after the district court’s adjudication
of a qualifying post-judgment motion. See Fed. R. App. P. 4(a)(4)(B)(i);
Fed. R. App. P. 4(a)(2); Wright & Miller § 3950.4, at 366–67. As
discussed below, several of the older precedents involving Rule 59 were
decided in the prior regime in which premature notices of appeal were
ineffective.
NUTRITION DISTRIBUTION V. IRONMAG LABS 13
extends the time for filing an appeal. Fed. R. App. P.
4(a)(4)(A)(iv).
It should be clear that Nutrition Distribution’s argument,
if accepted, would facilitate an end-run around Rule 58(e).
Rather than having to seek the district court’s permission
that the time to file a notice of appeal run from the later
disposition of the post-judgment fees motion, see Fed. R.
Civ. P. 58(e), Nutrition Distribution would grant itself an
extension through the expedient of recharacterizing its own
motion for attorneys’ fees. The whole point of Rule 58(e) is
to allow—but not require—district courts to treat attorneys’
fees motions as having “the same effect” as a Rule 59 motion
for purposes of filing a notice of appeal. Ray Haluch Gravel
Co., 571 U.S. at 186–87. Nutrition Distribution would
instead make Rule 58(e)’s procedure advisory. It is hard to
imagine this is what the drafters of the 1993 amendments to
the Federal Rules had in mind.
But, as it happens, this is not what they had in mind: the
1993 amendments to the Federal Rules are based on
Supreme Court cases that make clear that attorneys’ fees
motions cannot be recharacterized as Rule 59 motions to
alter or amend the judgment. In White v. New Hampshire
Department of Employment Security, 455 U.S. 445 (1982),
the Supreme Court rejected the view that a post-judgment
motion for attorneys’ fees under 42 U.S.C. § 1988 was a
motion to alter or amend the judgment under Rule 59. The
Court held that “[a] motion for attorney’s fees is unlike a
motion to alter or amend a judgment” because “[i]t does not
imply a change in the judgment, but merely seeks what is
due because of the judgment.” Id. at 452 (quotations
omitted). For this reason, “the federal courts generally have
invoked Rule 59(e) only to support reconsideration of
matters properly encompassed in a decision on the merits.”
14 NUTRITION DISTRIBUTION V. IRONMAG LABS
Id. at 451. Unlike a post-judgment motion on the merits, “a
request for attorney’s fees under § 1988 raises legal issues
collateral to the main cause of action—issues to which Rule
59(e) was never intended to apply.” Id.
Several years later, in Buchanan v. Stanships, Inc.,
485 U.S. 265 (1988) (per curiam), the Supreme Court held
that a post-judgment motion for costs could not be treated as
a Rule 59 motion to alter or amend the judgment. Relying
on White, the Court explained that like fees, the
“[a]ssessment of such costs does not involve reconsideration
of any aspect of the decision on the merits.” Id. at 268. The
Supreme Court made clear that the Federal Rules reflected
“[a] sharp distinction between the judgment on the merits
and an award of costs under Rule 54(d),” reiterating that “a
request for costs raises issues wholly collateral to the
judgment in the main cause of action.” Id. at 268–69.
Building further on White, the Supreme Court made this
same point again in Budinich v. Becton Dickinson & Co.,
486 U.S. 196 (1988), holding that a post-judgment motion
for attorneys’ fees did not prevent a judgment from
becoming final. It is “indisputable,” the Court explained,
“that a claim for attorney’s fees is not part of the merits of
the action to which the fees pertain.” Id. at 200. For that
reason, “[c]ourts and litigants are best served by the bright-
line rule, which accords with traditional understanding, that
a decision on the merits is a ‘final decision’ for purposes of
[28 U.S.C.] § 1291 whether or not there remains for
adjudication a request for attorney’s fees attributable to the
case.” Id. at 202–03.
Our precedents are in accord, recognizing “Budinich’s
emphasis on the need for a bright-line rule” based on the
overarching principle that attorneys’ fees “associated with
the litigation at hand are indeed always collateral.” U.S. for
NUTRITION DISTRIBUTION V. IRONMAG LABS 15
Use & Benefit of Familian Nw., Inc. v. RG & B Contractors,
Inc., 21 F.3d 952, 955 (9th Cir. 1994) (emphasis added).
Indeed, we had reached substantially the same conclusion
even before Budinich was decided.
In Durham v. Kelly, 810 F.2d 1500 (9th Cir. 1987), a
district court entered final judgment on the merits and
simultaneously ordered the parties to bear their own costs.
Id. at 1502. The plaintiff then filed a post-judgment motion
for costs under Rules 54 and 59 and a notice of appeal, and
the district court ruled on the costs request. Id. As noted
above, ante at 11 n.2, at the time the Federal Rules provided
that if a party filed a Rule 59 motion, a notice of appeal filed
before a ruling on that motion “shall have no effect.” Fed.
R. App. P. 4(a)(4)(A) (1979). The question in Durham was
thus whether the plaintiff should have filed a second notice
of appeal because its costs motion was styled as a motion
under Rule 59.
Relying on White, we held that the costs motion was not
a Rule 59 motion. And we “adopt[ed] as the law of this
circuit the rule that a motion to alter or amend a judgment to
award costs does not come within Rule 59(e).” Durham,
810 F.2d at 1503. Of note, the Supreme Court in Buchanan
identified Durham as being on the prevailing side of the
circuit split that the Court addressed in that case. See
Buchanan, 485 U.S. at 267.
The Supreme Court precedent discussed above provides
the basis for the current state of the Federal Rules.
Following Budinich, the Federal Rules were amended in
1993 to codify Budinich’s bright-line rule. The addition of
Federal Rule of Civil Procedure 58(e) and related changes to
Federal Rule of Appellate Procedure 4(a)(4) make plain that
a motion for attorneys’ fees will not extend the time to appeal
unless the district court specifically says so. As the 1993
16 NUTRITION DISTRIBUTION V. IRONMAG LABS
Advisory Committee Notes to Federal Rule of Appellate
Procedure 4(a)(4) explained, “[t]o conform to a recent
Supreme Court decision, however—Budinich v. Becton
Dickinson and Co., 486 U.S. 196 (1988)—the amendment
excludes motions for attorney’s fees from the class of
motions that extend the filing time unless a district court,
acting under Rule 58, enters an order extending the time for
appeal.” Fed. R. App. P. 4, adv. comm. note (1993); see also
Fed. R. Civ. P. 58, adv. comm. note (1993) (citing Budinich
as the background to the addition of Rule 58(e)); Heck,
775 F.3d at 273 (“In 1993, Congress amended FRAP 4(a)(4)
to conform to Budinich.”).
Under this framework, Nutrition Distribution’s post-
judgment motion for attorneys’ fees cannot be treated as a
Rule 59 motion to alter or amend the judgment. The text of
the relevant rules distinguishes between motions for
attorneys’ fees under Rule 54 and motions under Rule 59.
See Fed. R. App. P. 4(a)(4)(A)(iii)–(iv); Fed. R. Civ. P.
58(e). And White, Buchanan, and Budinich establish that
Rule 59 does not extend to issues “collateral” to the merits
of a case, such as a post-judgment motion for attorneys’ fees.
See White, 455 U.S. at 451–52; Buchanan, 485 U.S. at 268;
Budinich, 486 U.S. at 200–03. Indeed, the Supreme Court
reiterated this core principle just this Term. See Banister v.
Davis, 140 S. Ct. 1698, 1703 (2020) (quoting White for the
proposition that Rule 59 generally has “only” been used to
reconsider “matters properly encompassed in a decision on
the merits” (quotations omitted)). The 1993 Amendments to
the Federal Rules and the Supreme Court precedent upon
which they were premised thus prohibit us from
recharacterizing Nutrition Distribution’s attorneys’ fees
motion as a motion under Rule 59.
NUTRITION DISTRIBUTION V. IRONMAG LABS 17
C
Against all of this, Nutrition Distribution offers three
arguments for why, under the circumstances of this case, we
should construe its fees motion as one under Rule 59. None
of these arguments is persuasive.
1
Nutrition Distribution first cites Whittaker v. Whittaker
Corp., 639 F.2d 516 (9th Cir. 1981), 3 and Munden v. Ultra-
Alaska Associates, 849 F.2d 383 (9th Cir. 1988), for the
proposition that a fees motion is a motion under Rule 59
when it substantively challenges whether fees should be
awarded “at all.” But Whittaker and Munden did not involve
fees motions and they both predated Rule 58(e). They are
also not easily squared with the Supreme Court decisions
discussed above.
Whittaker involved a judgment in which the district court
also “included [an] award of costs to the plaintiffs” “as the
prevailing party.” 639 F.2d at 520. After judgment was
entered, but before the time to appeal expired, the defendant
moved to have the parties bear their own costs, arguing that
it, and “not the plaintiffs, should be considered the prevailing
party.” Id. The district court denied the motion. Id. After
learning that the plaintiffs would argue that the time to
appeal ran from the date judgment was initially entered—
and not the date of the district court’s costs order—the
defendant asked the district court to “determin[e] that the
motion to retax costs had extended the time for filing a notice
of appeal since it was a Fed. R. Civ. P. 59(e) motion to alter
3
Whittaker was abrogated on grounds not relevant here in Credit
Suisse Securities (USA) LLC v. Simmonds, 566 U.S. 221 (2012).
18 NUTRITION DISTRIBUTION V. IRONMAG LABS
or amend the judgment.” Id. The district court did so and
ordered the defendant’s notice of appeal accepted for filing.
Id.On appeal, we held that the defendant’s costs motion
extended the time to appeal and could be construed as a
motion under Rule 59. Whittaker explained that “[f]or
substantive challenges as to the appropriateness of awarding
costs at all, especially where such challenge involves a
redetermination of who was the prevailing party, Rule 59(e)
may be appropriate.” Id. at 521. Because the defendant’s
motion “went to the heart of how the judgment was to be
characterized”—and the district court was “surely in a
position to understand the ramifications of the motion”—we
held that the defendant’s motion to re-tax costs was
“correctly construed as a Rule 59(e) motion” and thus
“extended the time for filing the notice of appeal.” Id.
Munden reflected a similar analysis. The plaintiff in
Munden recovered damages in a judgment that also awarded
“prejudgment interest from the date of injury.” 849 F.2d at
384–85. After judgment was entered, the defendants moved
to “deny [the plaintiff] prejudgment interest that had accrued
after the expiration of an offer of judgment” and also “to
amend the court’s findings of fact and judgment.” Id. at 385.
The district court rejected the defendants’ prejudgment
interest argument, but “modified its damages calculation,
incorporated new conclusions, and amended its findings.”
Id. The district court thereafter entered an amended
judgment. Id.
In response, the defendants filed a further “Motion to
Amend Form of Judgment,” again asking the district court
“to delete those costs awarded . . . that were incurred after
the offer of judgment” and to award defendants their post-
offer costs. Id. While the defendants’ motion was pending,
NUTRITION DISTRIBUTION V. IRONMAG LABS 19
the plaintiff filed a notice of appeal. Id. After the appeal
was filed, the district court granted the defendants’ renewed
motion in an order titled “Order (Motion to Amend
Judgment Granted),” deleting costs accrued after the
defendants’ settlement offer and “award[ing] certain costs to
the defendants.” Id. The plaintiff did not file a renewed
notice of appeal.
We held that we lacked jurisdiction because the
plaintiff’s notice of appeal was premature and thus
ineffective under the then-governing Federal Rules. Id.
at 386–87; see also ante at 11 n.2. Because we construed the
defendant’s motion as a Rule 59 motion, the plaintiff’s
earlier notice of appeal was filed too early and was therefore
void. Munden, 849 F.2d at 386–87. In reaching this
conclusion, we relied on Whittaker, explaining that “the
defendants challenged costs previously awarded on a
substantive basis.” Id. at 387. Because the request at issue
involved “substantive, not merely ministerial or clerical,
relief,” Munden held that the defendants’ motion was
effectively a motion under Rule 59 and was treated as such
by the district court. Id.
It should be clear by this point in our discussion that the
substantive-clerical distinction in Whittaker and Munden is
not easily reconciled with Supreme Court precedent. The
entire point of the trio of Supreme Court cases discussed
above was to fashion a straightforward rule that “looks
solely to the character of the issue that remains open after the
court has otherwise ruled on the merits of the case.” See Ray
Haluch Gravel Co., 571 U.S. at 188. Whittaker and Munden
treated motions for costs as cognizable under Rule 59. The
Supreme Court has made clear, however, that motions for
costs and attorneys’ fees raise issues collateral to the
judgment—“issues to which Rule 59(e) was never intended
20 NUTRITION DISTRIBUTION V. IRONMAG LABS
to apply.” See White, 455 U.S. at 451–52; Buchanan,
485 U.S. at 268–69; Budinich, 486 U.S. at 200–03.
Whittaker was decided before the relevant Supreme
Court decisions in this area. But Munden was decided after
them and understandably has been criticized for failing to
mention White, Buchanan, or Budinich. See Lentomyynti Oy
v. Medivac, Inc., 997 F.2d 364, 367 (7th Cir. 1993) (“The
[Munden] court did not discuss any of the relevant Supreme
Court cases.”). Munden also tried to distinguish our prior
decision in Durham as a “narrow” case “seeking reallocation
of costs requiring only clerical changes.” 849 F.2d at 387.
But we question whether that was a fair reading of Durham,
810 F.2d at 1503, a decision that was in accord with White,
Buchanan, and Budinich, as well as other pre-existing circuit
precedent. See Int’l Ass’n of Bridge, Structural,
Ornamental, & Reinforcing Ironworkers’ Local Union 75 v.
Madison Indus., Inc., 733 F.2d 656, 658–59 (9th Cir. 1984)
(adopting “bright-line rule” and rejecting “case-by-case
approach” to whether “judgments finally disposing of the
merits are final and appealable even though questions
relating to attorney’s fees are unresolved”).
Although Whittaker and Munden are in obvious tension
with Supreme Court precedent, this case does not require us
to pronounce their ultimate fate. Whittaker and Munden,
which involved costs motions, were decided before the 1993
amendments to the Federal Rules, see Fed. R. Civ. P. 58(e);
Fed. R. App. P. 4(a)(4)(A)(iii), which lay out the specific
rules for the timing of notices of appeal in the context of
motions for attorneys’ fees. Whittaker and Munden had no
occasion to consider a motion for attorneys’ fees, much less
Rule 58(e) or the related amendments to Federal Rule of
Appellate Procedure 4(a)(4)(A). Today, it is those Rules that
dictate when a fees motion can extend the time to appeal.
NUTRITION DISTRIBUTION V. IRONMAG LABS 21
See Ray Haluch Gravel Co., 571 U.S. at 186–87; Stephanie-
Cardona, 476 F.3d at 705; Moody, 383 F.3d at 252–53; Cal.
Med. Ass’n, 207 F.3d at 576.
Nutrition Distribution made no effort under Rule 58(e)
to obtain—and did not obtain—an extension of the time to
appeal due to its filing of an attorneys’ fees motion. Its
notice of appeal was therefore untimely as to the underlying
judgment. See Stephanie-Cardona, 476 F.3d at 705.
Although we question how Whittaker and Munden can
remain good law, see Buchanan, 485 U.S. at 268–69,
because this case involves a fees motion and not a costs
motion, whether Whittaker and Munden can still govern
motions for costs is a question for another day. It is enough
here to hold that, under the 1993 amendments to the Federal
Rules, an attorneys’ fees motion will not extend the time to
appeal unless the district court orders that result under Rule
58(e). Stephanie-Cardona, 476 F.3d at 705.
2
Nutrition Distribution next argues that its attorneys’ fees
motion can be reconstrued as a Rule 59 motion because the
district court had previously rejected Nutrition
Distribution’s fee request in its summary judgment decision.
The suggestion is that although an attorneys’ fees motion
usually cannot be recharacterized as a Rule 59 motion, it can
be where there is an extant order denying fees. This theory
again fails under the 1993 amendments to the Federal Rules
and the decisions in White, Buchanan, and Budinich, which
gave rise to them.
That the district court denied fees when ruling on
summary judgment did not transform its initial fees ruling
into part of the “judgment” to which a Rule 59 motion could
apply. The earlier attorneys’ fees ruling once again “raise[d]
22 NUTRITION DISTRIBUTION V. IRONMAG LABS
legal issues collateral to the main cause of action—issues to
which Rule 59(e) was never intended to apply.” White,
455 U.S. at 451.
Other circuits confronting similar situations as here—
i.e., an initial decision denying fees and a post-judgment
motion renewing the request for fees—have likewise held
that the time to appeal the original judgment was not based
on the denial of the later fees motion. See Yost v. Stout,
607 F.3d 1239, 1243 (10th Cir. 2010) (“[The] ‘Motion to
Alter or Amend Judgment’ did not challenge the district
court’s judgment on the merits, but only challenged the
court’s denial of fees. We therefore conclude that the motion
concerned only a collateral issue—attorney’s fees—and was
properly construed as a motion brought pursuant to Rule
54(d) rather than Rule 59(e).”); Moody, 383 F.3d at 253(“[R]eading (4)(a)(4) and the rule it refers to—Rule 58—
together, it is clear to us that any post-judgment motion
addressing costs or attorney’s fees must be considered a
collateral issue even when costs or attorney’s fees are
included in a final judgment.”). These authorities as well
confirm that under the Federal Rules, it is the character of a
motion for attorneys’ fees, rather than its timing, that
prevents us from recharacterizing Nutrition Distribution’s
motion as a Rule 59 motion. See Ray Haluch Gravel Co.,
571 U.S. at 188; Budinich, 486 U.S. at 200–03.
3
Finally, Nutrition Distribution argues that by challenging
the district court’s finding that the case was not
“exceptional” under the Lanham Act, its post-judgment
attorneys’ fees motion addressed “substantive” issues
already adjudicated in the case. This, according to Nutrition
Distribution, brings its motion for attorneys’ fees under the
umbrella of Rule 59.
NUTRITION DISTRIBUTION V. IRONMAG LABS 23
Nutrition Distribution’s argument on this point relies on
Hairline Creations, Inc. v. Kefalas, 664 F.2d 652 (7th Cir.
1981). In that case, the Seventh Circuit held that a post-
judgment motions for attorneys’ fees under the Lanham Act
should be treated as a Rule 59 motion, explaining that:
whether a trademark case is “exceptional”
cannot be separated from whether trademark
rights have been violated or abused. This
identity of issues weds the determination of
attorneys’ fees to the final judgment. It is
because of this bond that a motion for fees
after judgment is necessarily a Rule 59(e)
motion to alter or amend the judgment.
Id. at 659.
The Seventh Circuit believed that because any finding
that the case was “exceptional” would conflict with the
district court’s previous rulings in that case, “the attorneys’
fees motion thus would have required reexamination of
factual findings and legal conclusions in the judgment.” Id.This meant the motion was really a motion to alter or amend
the judgment under Rule 59. Id.Hairline is not easily reconciled with the Supreme
Court’s later decisions in White, Buchanan, and Budinich.
Those cases underscored the distinction between the
judgment and an award of fees or costs under Rule 54(d).
See White, 455 U.S. at 451–52; Buchanan, 485 U.S. at 268;
Budinich, 486 U.S. at 200. In fact, Hairline relied on the
First Circuit’s decision in White, which the Supreme Court
later overruled. White, 455 U.S. at 451–52.
For these reasons, the Seventh Circuit has itself
questioned whether Hairline survives the Supreme Court’s
24 NUTRITION DISTRIBUTION V. IRONMAG LABS
decisions in this area, calling Hairline an “outlier” and
distinguishing it when possible. See Bittner v. Sadoff &
Rudoy Indus., 728 F.2d 820, 827 (7th Cir. 1984), overruled
on other grounds by McCarter v. Ret. Plan for Dist.
Managers of Am. Fam. Ins. Grp., 540 F.3d 649 (7th Cir.
2008); Exch. Nat’l Bank of Chi. v. Daniels, 763 F.2d 286,
293–94 (7th Cir.), amended on reh’g in part, 768 F.2d 140(7th Cir. 1985) (explaining that the circuit has “distinguished
Hairline on razor-thin grounds,” referred to it an “outlier,”
and “questioned whether it survived White”).
Other courts have also recognized that Hairline is
inconsistent with later Supreme Court decisions. See SGS-
Thomson Microelectronics, Inc. v. Int’l Rectifier Corp.,
31 F.3d 1177 (Table) (Fed. Cir. 1994) (“Hairline was
decided by the Seventh Circuit before Budinich and White
and hence has little precedential value.”); Specht v. Google,
Inc., 805 F. Supp. 2d 551, 556 (N.D. Ill. 2011) (“While
Hairline Creations may technically still be viable, it appears
relegated to the back corner of a locked closet, with the
Seventh Circuit disregarding it.”).
Hairline’s endeavor to identify attorneys’ fees
provisions that touch on the “substance” or “merits” of a case
is inconsistent with the “bright-line” rule that attorneys’ fees
issues are not part of the judgment. Budinich, 486 U.S.
at 202. The Supreme Court in Budinich squarely rejected an
approach “that requires the merits or nonmerits status of
each attorney’s fee provision to be clearly established before
the time to appeal can be clearly known.” Id. And we cannot
revive a framework for assessing fee requests that conflicts
with the 1993 amendments to the Federal Rules and the
decision in Budinich on which those amendments were
based.
NUTRITION DISTRIBUTION V. IRONMAG LABS 25
Our decision in this regard aligns with Gnesys, Inc. v.
Greene, 437 F.3d 482 (6th Cir. 2005), another Lanham Act
case. In Gnesys, the notice of appeal was filed within
30 days of the district court’s order granting attorneys’ fees
under the Act’s “exceptional case” provision. Id. at 485. But
the notice of appeal was filed more than 30 days after two
other relevant orders in the case (for contempt and damages).
Id. In holding the appeal was untimely as to the contempt
judgment and damages award, the Sixth Circuit relied on the
“clear message of Budinich” to “reaffirm” that “a decision
awarding attorney’s fees is not part of the merits for purposes
of determining if the lower court issued a ‘final decision.’”
Id. at 487. This was the result commanded by Budinich,
“even if the attorney’s fees” at issue “are authorized by
statute,” as they are under the Lanham Act. Id.Gnesys, and not Hairline, is the more faithful application
of Supreme Court precedent in the context of notices of
appeal involving the Lanham’s Act “exceptional case”
provision for attorneys’ fees. 4
III
Although its notice of appeal was untimely as to the
district court’s December 13, 2018 judgment, the notice of
appeal was timely filed within 30 days of the district court’s
January 30, 2019 denial of attorneys’ fees. Fed. R. App.
4
Even if the timeliness issue were not jurisdictional, IronMag did
not waive or forfeit its timeliness objection. We would therefore still be
required to treat the appeal as untimely. See Nutraceutical Corp. v.
Lambert, 139 S. Ct. 710, 714 (2019) (“Courts may not disregard a
properly raised procedural rule’s plain import any more than they may a
statute’s.”).
26 NUTRITION DISTRIBUTION V. IRONMAG LABS
P. 4(a)(1)(A). We thus have jurisdiction to review the latter
order. 5
As noted, the Lanham Act allows an award of attorneys’
fees in “exceptional cases.” 15 U.S.C. § 1117(a). A denial
of attorneys’ fees under this Act is reviewed for abuse of
discretion. SunEarth, Inc. v. Sun Earth Solar Power Co.,
839 F.3d 1179, 1180–81 (9th Cir. 2016) (en banc) (per
curiam). We have held that because the Lanham Act
“permits, but does not mandate, an award of attorneys’ fees”
in “exceptional” circumstances, “[a] party alleging that the
district court erred by failing to award attorneys’ fees under
§ 1117 faces an uphill battle.” Gracie v. Gracie, 217 F.3d
1060, 1071 (9th Cir. 2000).
The district court did not abuse its discretion in denying
fees. The district court found that Nutrition Distribution’s
post-judgment motion for attorneys’ fees violated certain
local rules. The district court also based its denial of fees on
the fact that Nutrition Distribution had failed to show injury
or damage resulting from IronMag’s advertising, or proof
that IronMag had engaged in litigation misconduct or
violated the district court’s injunction. These facts—
combined with Nutrition Distribution’s decision to file over
80 similar lawsuits in a three-year span—do not make this
case “stand[] out from others” as “exceptional.” See
SunEarth, 839 F.3d at 1180.
* * *
5
Nutrition Distribution’s unopposed motion for judicial notice is
granted.
NUTRITION DISTRIBUTION V. IRONMAG LABS 27
We affirm the district court’s denial of attorneys’ fees.
We otherwise dismiss the appeal for lack of jurisdiction.
DISMISSED IN PART AND AFFIRMED IN PART.