Nutrition Distribution LLC v. Ironmag Labs, LLC ( 2020 )


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  •                      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.
    

Document Info

Docket Number: 19-55251

Filed Date: 10/29/2020

Precedential Status: Precedential

Modified Date: 10/29/2020

Authorities (23)

Yost v. Stout , 607 F.3d 1239 ( 2010 )

Moody National Bank of Galveston v. Ge Life and Annuity ... , 383 F.3d 249 ( 2004 )

Hairline Creations, Inc. v. Diane Kefalas , 664 F.2d 652 ( 1981 )

Max I. Bittner v. Sadoff & Rudoy Industries , 728 F.2d 820 ( 1984 )

Exchange National Bank of Chicago v. Harold Daniels and ... , 768 F.2d 140 ( 1985 )

Gnesys, Inc. v. Boyd B. Greene, Individually, and D/B/A ... , 437 F.3d 482 ( 2005 )

carley-gracie-an-individual-gracie-usa-a-california-corporation , 217 F.3d 1060 ( 2000 )

international-association-of-bridge-structural-ornamental-and , 733 F.2d 656 ( 1984 )

Stephanie-Cardona LLC v. Smith's Food and Drug Centers, Inc.... , 476 F.3d 701 ( 2007 )

david-f-durham-v-walter-a-kelly-and-phillip-a-rennert-and-jay-l , 810 F.2d 1500 ( 1987 )

california-medical-association-california-academy-of-family-physicians , 207 F.3d 575 ( 2000 )

McCarter v. RETIREMENT PLAN FOR DIST. MANAGERS , 540 F.3d 649 ( 2008 )

united-states-of-america-for-the-use-and-benefit-of-familian-northwest , 21 F.3d 952 ( 1994 )

lentomyynti-oy-a-finnish-corporation-individually-gan-incendie , 997 F.2d 364 ( 1993 )

Santa Fe Engineers, Inc. v. John H. Dalton, Secretary of ... , 31 F.3d 1177 ( 1994 )

william-r-whittaker-on-behalf-of-himself-and-of-the-estate-of-beulah , 639 F.2d 516 ( 1981 )

Nutraceutical Corp. v. Lambert , 203 L. Ed. 2d 43 ( 2019 )

White v. New Hampshire Department of Employment Security , 102 S. Ct. 1162 ( 1982 )

Buchanan v. Stanships, Inc. , 108 S. Ct. 1130 ( 1988 )

Specht v. Google, Inc. , 805 F. Supp. 2d 551 ( 2011 )

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