Havensight Capital LLC v. Nike, Inc.

891 F.3d 1167

HAVENSIGHT CAPITAL LLC, Plaintiff-Appellant,

v.NIKE, INC., Defendant-Appellee.

No. 15-56607

United States Court of Appeals, Ninth Circuit.

Submitted August 18, 2017^* San Francisco, California

Filed June 7, 2018

Benjamin Woodhouse, Pismo Beach, California, for Plaintiff-Appellant.

Sean S. Twomey, Gibson Dunn & Crutcher LLP, Irvine, California; Austin Schwing, Gibson Dunn & Crutcher LLP, San Francisco, California; for Defendant-Appellee.

Before: Johnnie B. Rawlinson and Jacqueline H. Nguyen, Circuit Judges, and Sarah S. Vance,^** District Judge.

OPINION

RAWLINSON, Circuit Judge:

This appeal is the latest in an ongoing and bizarre dispute between Havensight Capital LLC (Havensight) and Nike, Inc. (Nike). Throughout these proceedings, Havensight has portrayed its action as a battle between David and Goliath. In reality, however, it is more akin to Don Quixote's tilting at windmills.

The action from which this appeal was brought concerns allegedly wrongful conduct by Nike against Havensight (the tortious interference action). The tortious interference action was filed after Havensight's prior action against Nike, alleging infringement upon a soccer brand owned by Havensight (the infringement action), was dismissed with prejudice.

I. BACKGROUND

Although the prior action is not before us on appeal, the two cases are somewhat intertwined. Havensight's infringement action was dismissed with prejudice on November 19, 2014. The following day, Havensight filed the tortious interference action, and six days later filed its Amended Complaint.¹ Attached to the Amended Complaint was an affidavit purportedly reflecting an interview of a sporting goods retailer who reported that Nike used its market strength to force retailers to purchase its goods, thereby excluding competitors like Havensight. After the tortious interference action was reassigned to the same judge who presided over the infringement action, Nike filed a motion to dismiss under Federal Rule of Civil Procedure (FRCP) 12(b)(6).²

At this juncture, Havensight departed sharply from ordinary procedure, filing multiple motions for default on the basis that Nike's motion to dismiss was untimely. Before the district court could rule on the motions, Havensight filed a writ of execution with the Clerk of the Court, claiming a default judgment in excess of $600 million. Of course, because Nike had timely filed its motion in lieu of an answer, no default judgment was warranted, and the district court ordered the writ of execution stricken.

Nike subsequently filed a Motion for Relief Regarding [Havensight's counsel's] Ethical Violations. Undeterred, Havensight moved to recuse the assigned judge from the tortious interference action and from the (dismissed) infringement action. The judge assigned to Havensight's recusal motions denied both. Nike subsequently sought sanctions under Rule 11 of the Federal Rules of Civil Procedure ( Rule 11 )³ due to Havensight's false and frivolous filings.

On February 18, 2015, the district court granted Nike's motion to dismiss the Amended Complaint without leave to amend, and imposed sanctions under Rule 11 against Havensight's counsel in the form of attorneys' fees and expenses. No separate judgment was entered for this order. The following day, Havensight filed a motion to vacate the dismissal and the Rule 11 sanctions (motion for reconsideration). Included in Havensight's motion was yet another motion to recuse the judge who decided the earlier recusal motions. Although the judge had previously requested that Havensight refrain from filing further recusal motions, Havensight decided to Just Do It. Understandably, the court did not look favorably upon Havensight's audacity, and denied the motion on April 22, 2015, while issuing an order to show cause why additional sanctions should not be imposed under Rule 11 and 28 U.S.C. § 1927.⁴ These sanctions were imposed on March 31, 2015.

The district court entered a separate order declaring Havensight to be a vexatious litigant, and Nike moved for attorneys' fees and costs pursuant to the Rule 11 sanctions imposed in the February 18 order. The district court granted Nike's motion in full in an order entered on September 22, 2015.

Havensight filed its Notice of Appeal on October 15, 2015. In its notice, Havensight referenced only the dismissal of the Amended Complaint and the granting of the Rule 11 sanctions. Havensight now seeks to expand the scope of rulings of its appeal to include the additional sanctions imposed under 28 U.S.C. § 1927, the vexatious litigant order, the denial of Havensight's motion to strike "Nike's alleged illegal deposition and felonious entry of a confidential customer communication into the public record," and denial of Havensight's Application for Default.

II. DISCUSSION

A. Standards of Review

We review de novo a district court's dismissal of a complaint under Federal Rule of Civil Procedure 12(b)(6). See Friedman v. AARP, Inc. , 855 F.3d 1047, 1051 (9th Cir. 2017). A district court's denial of a motion for leave to amend, denial of a motion for reconsideration, imposition of sanctions under Rule 11 and 28 U.S.C. § 1927, and characterization of a party as a vexatious litigant are all reviewed for abuse of discretion. See Kerr v. Jewell , 836 F.3d 1048, 1053 (9th Cir. 2016) (denial of motion for reconsideration); De Dios v. Int'l Realty & Investments , 641 F.3d 1071, 1076 (9th Cir. 2011) (imposition of sanctions); Ringgold-Lockhart v. County of Los Angeles , 761 F.3d 1057, 1062 (9th Cir. 2014) (characterization of party as a vexatious litigant).

B. Jurisdiction

"We have jurisdiction to determine our own jurisdiction." Agonafer v. Sessions , 859 F.3d 1198, 1202 (9th Cir. 2017) (citation omitted). However, we lack jurisdiction to decide an appeal if the notice of appeal is not timely filed under Rule 4 of the Federal Rules of Appellate Procedure (Rule 4) and the appellee raises the untimeliness as a basis for dismissal. See Hamer v. Neighborhood Hous. Serv. Of Chicago , ––– U.S. ––––, 138 S.Ct. 13, 16–17, 199 L.Ed.2d 249 (2017); see also Classic Concepts, Inc. v. Linen Source, Inc. , 716 F.3d 1282, 1284 (9th Cir. 2013). We similarly lack jurisdiction over matters not included in the Notice of Appeal. See Smith v. Barry , 502 U.S. 244, 248, 112 S.Ct. 678, 116 L.Ed.2d 678 (1992).

Rule 4 requires the notice of appeal to be filed "within thirty days after the entry" of the judgment or order being appealed. Orr v. Plumb , 884 F.3d 923, 927 (9th Cir. 2018). If the district court did not enter a separate judgment, judgment is deemed entered 150 days after "entry of the judgment or order in the civil docket." FRAP 4(a)(7)(A)(ii).

1. Matters Not Included in the Notice of Appeal

Rule 3 of the Federal Rule of Appellate Procedure provides that "[t]he notice of appeal must ... designate the judgment, order, or part thereof being appealed." FRAP 3(c)(1)(B). "When a party seeks to argue the merits of an order that does not appear on the face of the notice of appeal, we consider: (1) whether the intent to appeal a specific judgment can be fairly inferred and (2) whether the appellee was prejudiced by the mistake." West v. United States , 853 F.3d 520, 523 (9th Cir. 2017) (citation and internal quotation marks omitted).

Havensight's notice of appeal named "the order, and sanctions imposed against the Plaintiff by the Court," referenced "document[s] 123 [order granting Rule 11 sanctions] and 124 [order granting defendant's motion to dismiss the Amended Complaint]," and attached the orders as exhibits. No intent to appeal any other rulings can reasonably be inferred from Havensight's notice of appeal. See id . Accordingly, Havensight's appeal is dismissed as to the sanctions imposed under § 1927, the vexatious litigant order, the denial of Havensight's motion to strike and the denial of Havensight's Application for Default. See Valadez-Lopez v. Chertoff , 656 F.3d 851, 859 n.2 (9th Cir. 2011).

2. Dismissal of the Amended Complaint

The district court did not enter a separate judgment after it dismissed Havensight's Amended Complaint on February 18, 2015. Judgment was therefore deemed entered on July 18, 2015, pursuant to Rule 58 of the Federal Rules of Civil Procedure ( Rule 58 ).⁵ Ordinarily, this analysis would resolve the matter—if Havensight filed its notice of appeal after July 18, we would lack jurisdiction to hear the appeal. See Classic Concepts , 716 F.3d at 1284. Indeed, Havensight filed its notice of appeal on October 15, well after judgment was deemed entered.

This case, however, presents an unusual wrinkle. One day after the district court dismissed the Amended Complaint, Havensight filed a motion for reconsideration. When a party files a motion for reconsideration, the time period to appeal is tolled pending resolution of that motion. See United States ex rel. Hoggett v. Univ. of Phoenix , 863 F.3d 1105, 1107–08 (9th Cir. 2017) ("[I]f a party files one of the motions listed in [ Rule] 4(a)(4)(A), the time to file a notice of appeal is tolled during the motion's pendency...."). Included within this category of motions is a motion to alter or amend the judgment. Id. at 1107 ; see also FRAP 4(a)(4)(A)(iv). The title of the pleading does not control this determination. Rather, we "look to the substance" of the pleading "to determine whether it is in substance a motion to alter or amend the judgment." Hoggett, 863 F.3d at 1108. If the motion "involves reconsideration of matters properly encompassed in a decision on the merits," it is properly characterized as a motion to alter or amend the judgment under Rule 4(a). Id. (citations and internal quotation marks omitted).

Although Havensight styled its pleading as a motion to vacate the judgment and re-open the case, the motion actually sought reconsideration of the district court's decision on the merits as contemplated in Rule 4(a). See id. However, the difficulty in applying Rule 4(a) in this case stems from the fact that the motion...