[00:00:06] Speaker 03:
We have three argued cases this morning.

[00:00:09] Speaker 03:
The first is number 16-2103, Cobra International versus BCNY International, Inc.

[00:00:18] Speaker 03:
Mr. Kubler.

[00:00:19] Speaker 03:
Now, I think the court and deputies advise you we only want to hear rebuttal, argument on the cross-appeal from one party.

[00:00:33] Speaker 03:
Mr. Kubler?

[00:00:59] Speaker 01:
Are we talking about the cross-appeal regarding summary judgment or sanctions?

[00:01:06] Speaker 01:
Any part of the cross-appeal.

[00:01:08] Speaker 01:
Oh, okay.

[00:01:09] Speaker 01:
Well, I'll begin with sanctions because I think it's shorter.

[00:01:13] Speaker 01:
B.C.

[00:01:13] Speaker 01:
and Weill filed a motion for sanctions more than 60 days after the District Court... Wait, I'm confused.

[00:01:19] Speaker 03:
I thought you were going to present the main appeal.

[00:01:24] Speaker 03:
Well, I misunderstood.

[00:01:25] Speaker 03:
I thought we were only going to hear the cross-appeal.

[00:01:27] Speaker 03:
I guess I didn't hear you correctly.

[00:01:28] Speaker 03:
No, no.

[00:01:29] Speaker 03:
What I was saying is that with respect to the cross appeal, we only want to hear a rebuttal argument from one party.

[00:01:36] Speaker 03:
So you should address the main appeal, and you'll get your chance later to address the cross appeal after they are.

[00:01:43] Speaker 01:
I'm sorry.

[00:01:44] Speaker 01:
Let's start with the main appeal.

[00:01:47] Speaker 01:
BCNY has argued that following the deposition of the listed inventor in the patent, Alan Stone, in 2006, where it was revealed that he didn't

[00:01:57] Speaker 01:
have, he had limits in his knowledge about electrical circuits and logic circuits, that the Cobra should have immediately gone to China to find the technician and have him listed as a co-inventor and go through that process and amend the complaint.

[00:02:10] Speaker 01:
I think we are pretty familiar with the facts.

[00:02:13] Speaker 01:
Okay, I guess, frankly, this is the first I've done this and I'm not really sure what to present here, but I'm just going through.

[00:02:19] Speaker 01:
I guess, alright.

[00:02:25] Speaker 03:
Well, basically, the district court said that it wasn't going to allow your amendment to the complaint to have this Chinese inventor.

[00:02:38] Speaker 03:
As I understand it, for two reasons.

[00:02:39] Speaker 03:
One, that you had delayed even before the certificate of correction.

[00:02:48] Speaker 03:
And second, that once you got the certificate of correction, there was also additional delay.

[00:02:54] Speaker 03:
As I read it, there seemed to be two alternative theories that the district court relied on to deny the amendment.

[00:03:04] Speaker 03:
So why don't you address whether those rulings were correct?

[00:03:08] Speaker 01:
Yeah, the district court said that there was a 14-month delay measured from when they granted the motion for summary judgment on inventorship until we moved to amend the complaint.

[00:03:17] Speaker 01:
and they said there was no reason why we couldn't have simultaneously moved to amend the complaint while we were seeking correction, trying to find the inventor, and trying to get his name added to the patent.

[00:03:28] Speaker 01:
That's wrong as a matter of law, and we've cited two Federal Circuit cases to that effect.

[00:03:33] Speaker 01:
It's wrong because although, and we have a case right here that says that it's the Azure Networks case,

[00:03:42] Speaker 01:
Although the court's ruling gave the Chinese co-inventor an interest in the case, that's not enough for standing.

[00:03:48] Speaker 01:
You have to have exclusionary rights under the patent, and that doesn't happen until you become a patentee or listed as a co-inventor, which didn't happen until a year later when we went through the process of finding him in mainland China, getting the paperwork signed, going through the administrative correction process in the patent office.

[00:04:05] Speaker 01:
It took a full year until September of 2015 to do that.

[00:04:09] Speaker 01:
So the 14 months is simply wrong.

[00:04:11] Speaker 01:
I mean, as a matter of law.

[00:04:13] Speaker 01:
Now, the second question you mentioned is, what about from there until we file it?

[00:04:16] Speaker 04:
Weren't you aware, in the Skeeter's case, weren't you aware that this issue existed?

[00:04:26] Speaker 01:
We didn't consider it an issue until opposing counsel filed the motion for summary judgment, because our position was that the Chinese inventor

[00:04:34] Speaker 01:
simply did the work of an ordinary technician.

[00:04:38] Speaker 01:
He was directed by Alan Stone, who was over in China guiding him.

[00:04:42] Speaker 01:
Alan Stone looked at various prototypes he created, rejected several of them.

[00:04:45] Speaker 04:
I find it odd that you would dismiss a case because you know you have no standing.

[00:04:50] Speaker 04:
And then you go out and you follow a news shoot against other defendants based on the same theory, the same pattern.

[00:04:59] Speaker 04:
And it's done with this open question on standing.

[00:05:06] Speaker 01:
I'm not sure I'm following the timeline here.

[00:05:11] Speaker 01:
I mean, we had both cases pending.

[00:05:14] Speaker 01:
We did not see that there was an issue of standing, because we felt, as I say, that based on what happened in 2006 in the deposition.

[00:05:22] Speaker 04:
But the judge heard arguments on the eventorship issues in the scheduler's case.

[00:05:30] Speaker 04:
I believe he did, yes.

[00:05:32] Speaker 04:
And it's a very basic tenet.

[00:05:35] Speaker 04:
a pan law that you have to have the co-owners of the pan as parties to assume?

[00:05:44] Speaker 01:
Well, as I say, as we had argued, we did not consider the Chinese technician to be a co-inventor.

[00:05:50] Speaker 01:
We thought he did the work of an ordinary technician, and he did not rise to the level of inventorship.

[00:05:54] Speaker 01:
And that was our position all along.

[00:05:56] Speaker 01:
And we finally had to address that when, in 2012, BCNY filed the motion for summary judgment on that.

[00:06:03] Speaker 01:
Then we actually made that argument.

[00:06:05] Speaker 01:
It wasn't until the judge granted that motion in the Florida case that we really had to say, okay, we guess we have to go find this fellow.

[00:06:14] Speaker 01:
But up to that point, we didn't feel that that was appropriate because he was not truly a co-inventor, which is why John Altman, who filed the original patent application, didn't list him as a co-inventor because he felt that he was just doing the work of a technician, because he was guided directly by Alan Stone, who was there with him.

[00:06:31] Speaker 01:
And he was just saying, okay, if you want this, then we'll do the circuit this way.

[00:06:36] Speaker 01:
And as I say, he was hit and miss trying to get it the way Allen Stone wanted it.

[00:06:40] Speaker 01:
But he finally had a prototype that met the description Allen Stone wanted.

[00:06:45] Speaker 01:
So he was guided at every step of the way.

[00:06:47] Speaker 01:
So he was just doing the work of the technician.

[00:06:50] Speaker 01:
And he was not really, in our view, doing any inventing.

[00:06:54] Speaker 01:
But what about the delay after you got the certificate of correction?

[00:07:01] Speaker 03:
And the district?

[00:07:02] Speaker 03:
court seemed to be puzzled by why you didn't immediately move for leave to amend after you got the certificate of correction.

[00:07:12] Speaker 01:
Yes, Your Honor.

[00:07:13] Speaker 01:
Well, there were a couple of reasons there.

[00:07:15] Speaker 01:
One is the court had administratively closed the case, and they did that in December of 2014.

[00:07:27] Speaker 01:
Our understanding of administrative closure wasn't an effective stay of the case until certain issues were resolved in terms of finding the inventor and the rest of it.

[00:07:35] Speaker 01:
And there was nothing that we, you know, I mean, you weren't supposed to file things until the court reopened the case.

[00:07:42] Speaker 01:
That was our understanding.

[00:07:43] Speaker 00:
Otherwise, what would have happened?

[00:07:44] Speaker 00:
But you could have asked the court to reopen the case as early, I assume, as early as, say, March of 2015, right, when you actually had the assignment from Zhang to Panagia.

[00:07:56] Speaker 00:
You couldn't have made a motion to the case at that point.

[00:07:59] Speaker 00:
You moved much later to reopen the case.

[00:08:01] Speaker 01:
No, sir.

[00:08:02] Speaker 01:
I don't think that's true because he wasn't added to the patent until September of 2015.

[00:08:05] Speaker 01:
Only when they was put on the patent did he have exclusionary rights.

[00:08:08] Speaker 00:
But you had both parties, since he had assigned his rights, you had all parties that would have had any exclusionary rights.

[00:08:18] Speaker 00:
If for some reason the certificate of correction wasn't granted,

[00:08:23] Speaker 00:
then you had already stoned on the patent.

[00:08:27] Speaker 00:
If it was granted, then you had Panagia.

[00:08:30] Speaker 00:
You'd had an assignment to Panagia.

[00:08:33] Speaker 00:
So Panagia was the owner of the patent.

[00:08:36] Speaker 00:
Why wasn't it sufficient as of March of 2015 to proceed with the case at that point?

[00:08:42] Speaker 01:
Well, he was assigning whatever rights he had.

[00:08:44] Speaker 01:
But at that point, he was not a patentee.

[00:08:46] Speaker 01:
Your argument is that until you got the certificate of correction, you couldn't move to reopen.

[00:08:51] Speaker 01:
Because yeah, exactly, because only at the moment he became a patentee did he have the exclusionary rights necessary to have standing.

[00:08:58] Speaker 01:
So if we had moved before that, you know, that motion could rightly have been dismissed because he didn't have standing to be a plaintiff until that moment in September of 2015 when he was actually put on the patent.

[00:09:08] Speaker 03:
But that still doesn't explain why you delayed after getting the certificate of correction.

[00:09:14] Speaker 03:
You could have, you know, the next day you could have moved to reopen the case.

[00:09:19] Speaker 03:
and to amend the complaint to add this new owner.

[00:09:24] Speaker 03:
And you didn't do it for two months.

[00:09:28] Speaker 01:
Well, our view was that the court had closed the case at its own initiative, and we were waiting for the court to decide when it wanted to reopen.

[00:09:35] Speaker 01:
Because the court knew we needed to do this, and they had the case closed.

[00:09:37] Speaker 01:
I mean, the court could have, at its own initiative, reopened the case and say, OK, it's time to do this now.

[00:09:41] Speaker 01:
We were waiting for them to do that.

[00:09:43] Speaker 03:
But you even waited a month after the court reopened the case to file the amendment.

[00:09:52] Speaker 03:
I'm sorry, wait another month?

[00:09:53] Speaker 03:
The court reopened the case on October 13th.

[00:09:56] Speaker 03:
You didn't file your motion for leave to amend until November 18th.

[00:10:00] Speaker 01:
Yes, a scheduling status conference was scheduled at that time to discuss how to go forward.

[00:10:05] Speaker 01:
And in the past, on a number of occasions, pretty consistently, the court had always waited for the status conference where we would decide on the next step.

[00:10:13] Speaker 01:
And I thought at that point, we would look into this issue, which seemed to be something to present at that time.

[00:10:20] Speaker 01:
We didn't see that there was an urgent need.

[00:10:22] Speaker 01:
We know we're going to have a status conference dealing with this anyway.

[00:10:25] Speaker 01:
We'll wait until that happens.

[00:10:27] Speaker 01:
And at the status conference, the court said that it was going to require this and issued an order giving us 10 days to do it, which we complied with.

[00:10:35] Speaker 01:
That's the only time frame the court ever gave us to do this.

[00:10:40] Speaker 01:
It was following the status conference on November 8, 2015, that the court ordered Cobra to file a motion to amend the complaint.

[00:10:49] Speaker 01:
to add the co-inventor within 10 days.

[00:10:51] Speaker 01:
And we complied with that.

[00:10:52] Speaker 01:
That's the only time frame the court ever gave us.

[00:10:54] Speaker 01:
But, you know, our view was... November 9th, I think, right?

[00:11:00] Speaker 01:
Oh, it was November... I have it as 8th.

[00:11:02] Speaker 01:
Maybe my handwriting isn't good.

[00:11:03] Speaker 01:
Maybe it was the 9th.

[00:11:04] Speaker 01:
I'm sorry.

[00:11:09] Speaker 01:
So it seems as though what's at issue here, really... I mean, we don't have a 14-month delay.

[00:11:16] Speaker 01:
We have a delay of a few weeks, more or less, one way or the other.

[00:11:19] Speaker 01:
depending on how we measure this in terms of the opening of the case and so on.

[00:11:24] Speaker 01:
But it seems in the case law I've looked at, the reason any delay like that matters is because of prejudice to the opposing party.

[00:11:30] Speaker 01:
And in those cases, it was because you were pretty much on the eve of trial.

[00:11:33] Speaker 01:
In this case, it was not even on the trial schedule.

[00:11:38] Speaker 01:
There was no trial date set.

[00:11:40] Speaker 01:
So there's really no prejudice in this 11-year-old case at that point to

[00:11:46] Speaker 01:
you know, this little period of time doesn't seem to create any prejudice at all.

[00:11:50] Speaker 01:
On the other hand, dismissing the case, which the judge did after ten years of litigation, is severely prejudicial to the plaintiff because, first of all, we have the statute of limitations on damages, you know, and we lose a big chunk of time there if we have to refile the case.

[00:12:06] Speaker 01:
So, I mean, that and that's all... But you can refile the case, right?

[00:12:10] Speaker 01:
You can refile it only going back six years.

[00:12:12] Speaker 01:
You can't cover all the years before that that are lost

[00:12:17] Speaker 01:
by the statute of limitations when you refile.

[00:12:19] Speaker 01:
So that seems severely prejudicial, not to mention just 10 years of fighting this case.

[00:12:24] Speaker 01:
So I mean, you compare that to whatever supposed prejudice there could have been to defendants by waiting a few weeks for us to file this motion to amend.

[00:12:34] Speaker 01:
It doesn't even seem the two can be compared.

[00:12:37] Speaker 00:
As I understand it under Rule 16, the standard is good cause, not

[00:12:42] Speaker 00:
Prejudice.

[00:12:42] Speaker 00:
Prejudice is one of the ingredients in the mix of what a court will look at to determine whether there's good cause.

[00:12:49] Speaker 00:
But the principal obligation on the part of the movement in that situation, I think, is to say, here is the good reason for my need to amend when the amendment falls outside of the period indicated by the scheduling order, which, of course, is dead.

[00:13:08] Speaker 01:
Well, I guess what I would say about that is the scheduling order had expired literally years before.

[00:13:13] Speaker 01:
We were not, you know, and there had been a number of filings in the case that could have been covered by the scheduling order and no one on either side had moved to amend the scheduling order and it was accepted as fine.

[00:13:24] Speaker 01:
I mean, there was no issue there.

[00:13:25] Speaker 01:
Somehow here it became an issue and we felt that was kind of selective and arbitrary that suddenly this is an issue to go back a few years and get an extension on the scheduling order when for other filings before that it wasn't.

[00:13:37] Speaker 04:
And in terms... You can only modify a schedule in order for good cause.

[00:13:45] Speaker 04:
And upon the discretion of the judge, correct?

[00:13:50] Speaker 04:
You had to show good cause.

[00:13:52] Speaker 04:
And prejudice isn't the only factor that's considered here.

[00:13:55] Speaker 04:
It's reasonable diligence.

[00:13:56] Speaker 04:
It's whether you exercise reasonable diligence.

[00:13:59] Speaker 04:
And that goes back to my question to you about the Skechers case, because you knew as far back as 10 years ago that you had a problem with

[00:14:07] Speaker 04:
Well, at least three years prior to this coming up in this case, you knew you had an inventorship problem.

[00:14:15] Speaker 04:
I just don't understand why once you think you solved it, you had the certificate, and you didn't go running back to court and saying, here it is.

[00:14:23] Speaker 04:
I knew now.

[00:14:25] Speaker 01:
Well, as I say, the case was still closed, and we just were waiting for the court to reopen it.

[00:14:30] Speaker 01:
We just thought it would follow a natural course of events where the court knew that we would need to be amending the complaint, and they would reopen the case, and then we would go from there.

[00:14:37] Speaker 04:
So it didn't seem as though there was any reason to do anything other than simply... It's really hard for me to accept an argument of reasonable diligence when you argue that it was up to the court to act.

[00:14:53] Speaker 04:
When really you're to take action and to move on behalf of your client and to take affirmative action in doing that, to exercise reasonable diligence.

[00:15:06] Speaker 04:
And you're arguing, well, the court should... I was waiting for the court to take action.

[00:15:16] Speaker 01:
Well, you know, it was the court that closed the case of their own initiative, and we thought it was up to them to reopen it.

[00:15:22] Speaker 01:
I mean, we didn't ask them to close it, but they did, and we thought that was a good idea, but we, you know... I mean, it just seemed as though there was not an issue there because the court would recognize this and reopen it in due course when the court felt it was appropriate.

[00:15:34] Speaker 01:
So...

[00:15:37] Speaker 01:
I guess it just didn't seem to be an issue there.

[00:15:39] Speaker 01:
If the court feels a need that this needs to be done now, they'll reopen the case.

[00:15:45] Speaker 01:
And they did reopen the case on October 13th.

[00:15:49] Speaker 01:
So we have a time frame that the court was arguing of 14 months.

[00:15:53] Speaker 01:
It's really pared down to just maybe a few weeks or about a month.

[00:15:58] Speaker 01:
So the vast majority of this time frame that they were saying there was a lack of diligence on is simply not so.

[00:16:07] Speaker 01:
And does this small time frame really represent a lack of due diligence?

[00:16:13] Speaker 01:
Our feeling is it doesn't.

[00:16:16] Speaker 01:
I mean, you can define due diligence in different ways.

[00:16:19] Speaker 01:
But the case law I looked at was pretty much about being on the eve of trial, and this delay mattered there.

[00:16:25] Speaker 01:
In this case, it's not on the trial calendar.

[00:16:27] Speaker 01:
So it just didn't seem as though there was an issue for such a short time frame.

[00:16:33] Speaker 01:
So that was our position.

[00:16:37] Speaker 01:
And as I say, we waited for the status conference to discuss the next step forward, as we had for other issues.

[00:16:42] Speaker 01:
I mean, we have a list of them.

[00:16:43] Speaker 01:
Or that's how we went to each step, is the court would have a status conference, and we'd say, OK, we're going to do this now.

[00:16:49] Speaker 01:
And following that, and not long following that, we did move to amend the complaint.

[00:16:53] Speaker 01:
The court, as I say, for the first time, gave an order, giving 10 days to do this, which suggests to me that they felt it was not already too late.

[00:17:01] Speaker 01:
And when we complied, I mean, this was the first time frame we were given, and we filed within 10 days.

[00:17:06] Speaker 01:
But then, you know, the court's main argument here was not about weeks.

[00:17:11] Speaker 01:
Their main argument was we waited 14 months, and that was simply not correct.

[00:17:16] Speaker 01:
I mean, they were looking at a huge time frame that really didn't exist.

[00:17:21] Speaker 01:
And I think that was the basis for the position they took.

[00:17:25] Speaker 01:
They simply misunderstood how standing worked when it comes to being a plaintiff in a patent case.

[00:17:33] Speaker 03:
Okay, Mr. Kibble, we're out of time.

[00:17:34] Speaker 03:
We'll give you three minutes for rebuttal.

[00:17:37] Speaker 03:
Mr. O'Sullivan.

[00:17:57] Speaker 06:
Good morning.

[00:17:57] Speaker 06:
May I please record John O'Sullivan from Hogan-Lobos.

[00:18:00] Speaker 06:
I'm here with my colleague, Paige Converato, for the appellee cross-appellant, BCNY.

[00:18:06] Speaker 06:
My co-counsel, Mr. Feller, as we discussed with the clerk, will handle the non-infringement issues.

[00:18:11] Speaker 06:
I'm going to cover the other issues.

[00:18:13] Speaker 03:
So you're supporting to denial of the motion for leave to amend, correct?

[00:18:18] Speaker 03:
Yes, sir.

[00:18:19] Speaker 03:
So why isn't the cross appeal on the infringement issue frivolous?

[00:18:25] Speaker 03:
Because how can the district court issue a decision on the merits of infringement when it's missing a necessary party?

[00:18:36] Speaker 03:
which is the co-inventor.

[00:18:39] Speaker 03:
Yes, I think that... You don't even address that in the brief, right?

[00:18:45] Speaker 06:
Well, that's the product of that challenge not having been made by our... But you're missing a co-inventor here.

[00:18:54] Speaker 03:
How can you say the district court should have rendered a decision on the merits of the infringement question when by your own view,

[00:19:03] Speaker 03:
the court does not have before it the necessary parties.

[00:19:07] Speaker 06:
I think that your honor's choice of words is the right one, necessary, not indispensable.

[00:19:13] Speaker 06:
And I think the Dianne Napan case, the H.R.

[00:19:16] Speaker 06:
Technologies case say that an order like the order we got on summary judgment, which is not as favorable as the order sought, we ended up with a without prejudice dismissal, nothing to show for 10 years of litigation.

[00:19:29] Speaker 03:
We presented a winning summary.

[00:19:32] Speaker 03:
You know, you couldn't have brought a declaratory judgment action without naming both owners of the patent.

[00:19:39] Speaker 03:
You know, there may be unusual circumstances where it's not possible to name the owners, but that's not the situation here.

[00:19:47] Speaker 03:
And in those situations, maybe the Fedor to join a necessary party would be excused.

[00:19:54] Speaker 03:
The law in that's not clear.

[00:19:56] Speaker 03:
But here, you know, you could have named, you could have brought the other owner into the case, and that was necessary if you were going to get a declaratory judgment or a judgment of non-infringement, right?

[00:20:11] Speaker 06:
Well, just to be fair on the timeline, at the time we moved for summary judgment, according to everything we were told by the plaintiff, the Chinese technician was a phantom, unknowable, unfindable.

[00:20:23] Speaker 03:
But right now,

[00:20:25] Speaker 03:
At the end of this case, the person was identified, the patent had been amended, the certificate of correction had named this other party, the Chinese inventor's rights had been assigned to another corporation, and that corporation, the owner, the co-owner of the patent, is not a party.

[00:20:44] Speaker 03:
By your own argument, it's not a party.

[00:20:46] Speaker 03:
How could you possibly suggest that the district court had any authority under those circumstances to render a judgment of non-entrenchment?

[00:20:55] Speaker 06:
it for the reason I stated under the case law, that exact circumstance where you have some missing player, but depending on the relationship between that player and who you have, you don't lose subject matter jurisdiction.

[00:21:08] Speaker 06:
It's not constitutional standing.

[00:21:10] Speaker 06:
It's this necessary versus indispensable party analysis.

[00:21:14] Speaker 06:
Whoever Pangea is or the Chinese, that person, at least going back a few years, has sat on the sidelines.

[00:21:21] Speaker 06:
They haven't moved to intervene.

[00:21:22] Speaker 06:
They never moved to intervene.

[00:21:23] Speaker 06:
the introduction of that party to the case.

[00:21:25] Speaker 03:
In what case have we said that the district court can render a judgment on the merits where it's missing a necessary party who could be added to the case?

[00:21:35] Speaker 06:
There are a couple, I would say.

[00:21:37] Speaker 06:
D and Nippon, and again, I apologize this wasn't briefed, it wasn't raised, we didn't sort of sue respond to a brief, but a Federal Circuit case, D and Nippon, is 142 F.

[00:21:47] Speaker 06:
3rd, 1266, and it distinguishes, it has a sub and a parent,

[00:21:53] Speaker 06:
But it finds the missing party that has some bundled patent rights.

[00:21:58] Speaker 06:
The missing party is not indispensable.

[00:22:00] Speaker 06:
And it does sort of a virtual representation analysis.

[00:22:03] Speaker 06:
So it says they're not here.

[00:22:05] Speaker 03:
But that's a sub and a parent.

[00:22:06] Speaker 03:
What cases like this one where you have two separate parties?

[00:22:11] Speaker 06:
Well, the alignment right now is not clear.

[00:22:14] Speaker 06:
It seems like the rights were conveyed for nothing.

[00:22:16] Speaker 06:
This party showed up with the same lawyer and didn't seek to intervene on its owner in some independent way.

[00:22:22] Speaker 06:
seek to join.

[00:22:23] Speaker 06:
I mean, it's unclear what it is.

[00:22:25] Speaker 00:
Are you talking about Pangea?

[00:22:27] Speaker 04:
Yes, sir.

[00:22:28] Speaker 04:
OK.

[00:22:28] Speaker 04:
But assuming that even if the district court had jurisdiction, you're asking us to review a denial of a summary judgment motion.

[00:22:36] Speaker 04:
And the court never rendered any type of judgment on the merits.

[00:22:39] Speaker 04:
It was denied on the basis of the inventorship issue.

[00:22:43] Speaker 04:
So you're asking us to rule on a denial of summary judgment.

[00:22:48] Speaker 04:
And we don't have the jurisdiction to do that.

[00:22:50] Speaker 04:
There's no finality here.

[00:22:52] Speaker 06:
Two responses.

[00:22:54] Speaker 06:
I believe there is finality because the case is now over.

[00:22:57] Speaker 06:
I grant you, if in the middle of the case we were trying to appeal denial of a summary judgment, it's an interlocutory order.

[00:23:02] Speaker 06:
We'd be no judge.

[00:23:03] Speaker 04:
Well, the case has ended, but the case is not resolved on the merits.

[00:23:08] Speaker 04:
It was resolved on the summary judgment motion was granted on the basis of the dismissal for lack of inventorship.

[00:23:16] Speaker 06:
Right.

[00:23:17] Speaker 06:
The way we think you can talk about why you should

[00:23:21] Speaker 06:
try to resolve this to bring some closure to the case, the dismissal without prejudice, we say, should have been with prejudice because we should have won on summary judgment.

[00:23:31] Speaker 06:
I understand that you can say that a denial of summary judgment isn't on the merits.

[00:23:34] Speaker 06:
But if summary judgment was appropriate as a matter of law, meaning as a matter of law, the case should have been dismissed at that moment, the right adjudication would be on the merits.

[00:23:45] Speaker 00:
Well, but to follow up on Judge Rainn's question, the typical rule, as I understand it, is that

[00:23:51] Speaker 00:
Even when the denial of the summary judgment motion is brought up on a cross-appeal, as in this case, the courts of appeals have typically said, no, there's no jurisdiction.

[00:24:02] Speaker 00:
Now, there are occasions in which the courts have said, well, in limited circumstances, where, for example, the question is purely a question of law or there appears to be a very close relationship between the legal issue that's up on the main appeal and the legal issue that would be brought up on the

[00:24:20] Speaker 00:
on the cross-appeal denial from the denial of summary judgment.

[00:24:22] Speaker 00:
The courts have said, well, because the case is before us, we'll go ahead and decide this, either pending an appellate jurisdiction or under the authority of Section 2106.

[00:24:33] Speaker 00:
But I don't see that this case is falling within those exceptions.

[00:24:38] Speaker 00:
What is your basis for saying this case, unlike most cases, we should be addressing the denial of summary judgment?

[00:24:47] Speaker 06:
Three reasons.

[00:24:48] Speaker 00:
First of all... And this wasn't briefed for some reason.

[00:24:51] Speaker 06:
I don't know why, but... This issue of whether you should even reach the summary judgment.

[00:24:55] Speaker 06:
It wasn't challenged, I think, at least from the perspective of the appellant.

[00:24:58] Speaker 06:
It's waived because it's really a potential standing issue at all, if anything.

[00:25:02] Speaker 06:
It's not constitutional standing, but to address your... No, I'm not talking about standing here.

[00:25:06] Speaker 00:
I'm talking about our jurisdiction to address the denial of a summary judgment motion, which normally is not within our appellate jurisdiction.

[00:25:15] Speaker 06:
So I would say the unique circumstances of this case is

[00:25:18] Speaker 06:
We ended up litigating that on the merits as a fully developed record.

[00:25:23] Speaker 06:
Mr. Feller will address the merits, but the argument is going to be there are three or four places where there was just a failure of proof.

[00:25:29] Speaker 06:
You have everything the district court had.

[00:25:30] Speaker 06:
It's easy to find.

[00:25:31] Speaker 00:
But that's true in every case in which there's a denial of summary judgment and then a disposition on another ground, which leads to an appeal and a cross appeal.

[00:25:42] Speaker 00:
I don't see what distinguishes this case from the run of the mind cases.

[00:25:46] Speaker 06:
I would say at least from a sort of doing justice perspective, the unfairness of 10 years of litigation and they refile tomorrow.

[00:25:55] Speaker 03:
Well, you should have made a different argument and not appealed from the denial of summary judgment.

[00:26:00] Speaker 03:
What you should have argued was the district court in your view was obligated to go ahead and resolve the non-infringement question, which presumably since he denied summary judgment would have resulted in a trial.

[00:26:12] Speaker 03:
And that's the error that the district court made.

[00:26:15] Speaker 03:
But you haven't even made that argument.

[00:26:17] Speaker 06:
Yes, our argument is that on the record that was there and is here.

[00:26:21] Speaker 03:
I don't think you can, as Judge Ryan and Judge Bryson have been saying, there are all sorts of cases saying you can't appeal the denial of the summary judgment.

[00:26:30] Speaker 03:
You could fault the district court for not resolving the infringement question if you had proper parties here, but you don't.

[00:26:40] Speaker 03:
I'm going to just, because I have to see to my colleague.

[00:26:42] Speaker 06:
No, you don't get the right to sit down when we're questioning.

[00:26:45] Speaker 06:
Oh, yes, sir.

[00:26:46] Speaker 06:
I do think we're in the limited circumstances that Judge Bryson mentioned because of this unique situation.

[00:26:53] Speaker 06:
It's not like every case where you end up with this dismissal with prejudice.

[00:26:57] Speaker 06:
And again, there obviously are some cases that get to the appellate court where you want to do a light touch and let everybody back at the trial level do things in the first instance.

[00:27:08] Speaker 06:
It's a heavy lift we're asking for, but it's a 10-year-old case.

[00:27:13] Speaker 03:
That issue, which is going to come up on a brand new case in six weeks... Well, if you want to resolve on the merits, you should have agreed that the motion for leave to amend be granted and the co-owner be added to the case.

[00:27:29] Speaker 03:
But you don't want that.

[00:27:30] Speaker 06:
Yes, sir.

[00:27:30] Speaker 06:
Obviously, the client wants to end the case.

[00:27:33] Speaker 06:
It's 10 years.

[00:27:34] Speaker 06:
We thought under the discretion the judge had,

[00:27:36] Speaker 06:
the abuse of the Rule 16 deadline meant that case had to end.

[00:27:41] Speaker 06:
That configuration of parties who was there then couldn't start a new 10 years in.

[00:27:46] Speaker 06:
But we also didn't want to leave that 10 years without, you know, we made two summary judge motions.

[00:27:51] Speaker 06:
We won one of them.

[00:27:52] Speaker 04:
We should have won the other one.

[00:27:53] Speaker 04:
You don't end the case by filing a cross appeal.

[00:27:55] Speaker 04:
Pardon?

[00:27:55] Speaker 04:
You don't end the case by filing a cross appeal.

[00:27:59] Speaker 06:
Well, the relief sought would be to direct that summary judgment be granted in our

[00:28:03] Speaker 06:
favor on the non-infringement issue.

[00:28:04] Speaker 03:
Suppose we disagreed with you and felt that the district court had properly denied summary judgment.

[00:28:10] Speaker 03:
What happens with the case then?

[00:28:11] Speaker 03:
We're supposed to send it back for a trial on infringement?

[00:28:14] Speaker 03:
What are we supposed to do?

[00:28:17] Speaker 06:
No.

[00:28:17] Speaker 06:
I think if you disagreed with us, it still ends the other way.

[00:28:21] Speaker 06:
That case ends the other way.

[00:28:22] Speaker 06:
Your decision would be the only decision that would discuss what happened in this case.

[00:28:27] Speaker 06:
Whatever happened, the denial or the incorrect adjudication of that summary judgment

[00:28:31] Speaker 06:
is not going to transfer to case number two.

[00:28:34] Speaker 00:
So our decision on the summary judgment, if it went against you, would be purely advisory, which would inform the district court if a new case was filed as to how that he should resolve a new motion for summary judgment.

[00:28:47] Speaker 06:
I don't think it's purely advisory.

[00:28:49] Speaker 06:
Again, you have jurisdiction to reach it.

[00:28:52] Speaker 00:
Well, how about that?

[00:28:55] Speaker 00:
What's the best case you've got for the proposition that we have jurisdiction to reach that?

[00:29:00] Speaker 00:
Given the general principle that we discussed before, that denials of summary judgment are not appealable with the exceptions that we discussed before, what's your best case?

[00:29:14] Speaker 00:
Let me put it this way.

[00:29:14] Speaker 00:
What's your best case for the proposition that this falls within one of the limited exceptions to that rule?

[00:29:23] Speaker 06:
I think the HR Technologies case, in terms of reaching it, and that is,

[00:29:27] Speaker 06:
That's the one case we said in the jurisdictional section of our brief.

[00:29:34] Speaker 06:
What's that case say?

[00:29:36] Speaker 06:
That case says, and it's dealing with a missing party as well, but it says if after a lot of unrelated activity you end up with a dismissal without prejudice, as opposed to prejudice, you don't get deprived of an appeal on the notion that you won.

[00:29:53] Speaker 06:
You've suffered some injury that you can address at the appellate level.

[00:29:57] Speaker 00:
Was that a cross appeal on a summary judgment denial?

[00:30:14] Speaker 06:
Yeah, the grievance that the court identified or went with in that case was that this court did find that the district court had the discretion to

[00:30:26] Speaker 06:
deny or dismiss without prejudice, but that shipping out or not addressing and dismissing the counterclaims, which were DJ counterclaims on the underlying infringement issue, that was improper.

[00:30:40] Speaker 03:
But that's not talking about an appeal for denial of summary judgment.

[00:30:49] Speaker 03:
That's arguing that this report needed to address invalidity issues.

[00:30:53] Speaker 03:
Yes, sir.

[00:30:54] Speaker 06:
Do you mind if I consult for 30 seconds?

[00:30:56] Speaker 06:
It's not brief.

[00:31:07] Speaker 06:
So I think there's a case called Scripps, which does stand for the proposition that the final dismissal or disposition of the case calls into question or raises for review all previous orders.

[00:31:23] Speaker 00:
That's the general rule that all orders merge into the final judgment.

[00:31:29] Speaker 00:
But there's a special principle that applies to summary judgment denials.

[00:31:34] Speaker 00:
We've talked about this in some of our cases.

[00:31:37] Speaker 00:
There's a case called Advanced Technologies and here's what we said in that case.

[00:31:42] Speaker 00:
The party has raised a cross appeal challenging the district court's denial of its summary judgment motion on obviousness and anticipation.

[00:31:52] Speaker 00:
We lack jurisdiction over the cross appeal because the final judgment rule prohibits a party from appealing a district court's denial of a motion for summary judgment.

[00:32:01] Speaker 00:
That sounds like it's this case.

[00:32:03] Speaker 06:
Well, the way I would distinguish it is to say that we ended up with a dismissal without prejudice.

[00:32:11] Speaker 06:
That order has been challenged.

[00:32:13] Speaker 06:
It's on appeal.

[00:32:14] Speaker 06:
We say, based on the incorrect disposition of the summary judgment motion,

[00:32:18] Speaker 06:
And that should have been with prejudice.

[00:32:20] Speaker 03:
Yeah, but what you could argue, as I said before, is that the district court should have resolved the infringement question, not to appeal the denial of summary judgment, which isn't properly before us.

[00:32:33] Speaker 03:
But you could have said he abused his discretion in not resolving the infringement question.

[00:32:39] Speaker 03:
So please send it back for a trial so we can get a final judgment, and then we can appeal from that.

[00:32:44] Speaker 03:
But that's not what you asked for.

[00:32:46] Speaker 06:
Yes, sir.

[00:32:47] Speaker 06:
Again, I think that the basis for the request to reach it is, again, the rule prohibiting interlocutory appeals on denial of summary judgment, it's supposed to prevent multiple trips up and down and multiple piecemeal appeals in the same case.

[00:33:05] Speaker 06:
We would say this is the opposite.

[00:33:07] Speaker 06:
We're already here.

[00:33:08] Speaker 06:
This issue, we say, you have the record to deal with and is never going to get reviewed if we end up in a refiled

[00:33:15] Speaker 06:
case, there was a moment we say in time when this case was right for disposition on the merits.

[00:33:21] Speaker 03:
Okay, I think we're out of time.

[00:33:22] Speaker 03:
We'll hear from Mr. Feller.

[00:33:29] Speaker 06:
I'll use my reserve time just for the other issue I didn't get to.

[00:33:34] Speaker 03:
Well, you guys are going to be out of time.

[00:33:37] Speaker 03:
We'll give you one minute on the cross-appeal

[00:33:43] Speaker 03:
You're going to address the sanctions question?

[00:33:46] Speaker 02:
No, actually, Your Honor, I was going to address the non-infringement arguments and why sending the case back to the district court is a waste of everyone's resources because there is absolutely no evidence in the record that COBRA has presented which would support its claims of infringement.

[00:34:03] Speaker 04:
But we don't have authority to hear that issue.

[00:34:05] Speaker 03:
Your Honor, I think, as Mr. O'Sullivan mentioned,

[00:34:11] Speaker 03:
The court does not wish to hear arguments on the merits of the cross appeal.

[00:34:16] Speaker 03:
But I do have a question about the sanctions and the timeliness of the sanctions.

[00:34:20] Speaker 03:
And that is, these cases that you rely on from the 11th Circuit are dealing with post-trial motions, not motions for reconsideration.

[00:34:31] Speaker 03:
And so why isn't this untimely under the rule?

[00:34:36] Speaker 03:
Because it's a motion for reconsideration.

[00:34:38] Speaker 03:
which is directly within the language of the local rule.

[00:34:42] Speaker 03:
Let Mr. O'Sullivan discuss it.

[00:34:47] Speaker 03:
Your Honor, the 11th Circuit case is on timely dealing with post-trial motions.

[00:35:00] Speaker 03:
Motions for Newt Rock, right?

[00:35:02] Speaker 03:
Not motions for reconsideration.

[00:35:05] Speaker 06:
Yes, but under the general law, those are treated the same in terms of finality.

[00:35:10] Speaker 03:
Well, the question is what interpretation to give to the local rule, where it says regardless of further review or whatever the language is.

[00:35:21] Speaker 03:
If you don't encompass a motion for reconsideration within that language, what meaning does it have, regardless of the prospect or pendency of supplemental review?

[00:35:35] Speaker 06:
Well, again, I think the law is well established, and that local rule went on the books in the face of decades of law that says a Rule 59 motion stays, destroys, postpones finality.

[00:35:46] Speaker 06:
That's a settled law, and that's the law that this rule went on top of.

[00:35:51] Speaker 06:
The rule uses the term final judgment, and you can read all the 11th Circuit cases, including the Member First Credit Union case and this Galdane's case that we cite.

[00:36:00] Speaker 06:
That made clear that means

[00:36:03] Speaker 06:
You start the clock.

[00:36:04] Speaker 03:
What does the language of the rule mean, regardless of the prospect or pendency of supplemental review?

[00:36:09] Speaker 03:
Does that mean supplemental review by the district court?

[00:36:12] Speaker 06:
I think the best... Obviously, there's nothing in the advisory committee wrote.

[00:36:16] Speaker 03:
The judge and our opposing counsel have... Do you agree that that means supplemental review by the district court?

[00:36:23] Speaker 06:
Yes.

[00:36:23] Speaker 06:
I think the new word that... It used to just say, your deadline ran from a final judgment.

[00:36:29] Speaker 06:
And obviously, if that finality was delayed, your clock was delayed.

[00:36:32] Speaker 06:
They added not only supplemental review, but the word order.

[00:36:37] Speaker 06:
And from what we've seen post the judge's ruling, the example where it seemed to apply was a case where the district court granted summary judgment in an insurance proceeding that has some kind of appraisal thing.

[00:36:50] Speaker 06:
And there was an entitlement to fees just based on that act.

[00:36:54] Speaker 06:
And without digging into it, the court treated that as an order that started the clock to do the fees.

[00:37:02] Speaker 06:
Presumably, for the reasons we talked about on the other issue, that order could be subject to supplemental review.

[00:37:09] Speaker 06:
But all you have, if you're trying to figure out what the 11th Circuit would do, you have one case that has those words in the order and focuses on the traditional meaning of final judgment.

[00:37:20] Speaker 06:
I mean, this is a judgment, and it wasn't final at that time, and says you start the clock when the Rule 59 motion is gone.

[00:37:26] Speaker 06:
That has to be what it means.

[00:37:27] Speaker 06:
And there's no case or authority or commentary

[00:37:32] Speaker 06:
that would support the idea that supplemental review destroys the whole concept of finality or all the law that says.

[00:37:42] Speaker 00:
We're in a very strange posture here.

[00:37:46] Speaker 00:
You're asking us to construe a local rule that has been applied with a construction by the district judge from that very district where the local rule was promulgated, probably

[00:38:01] Speaker 00:
participated in its promulgation or its amendment.

[00:38:04] Speaker 00:
I don't know if he's on the court long enough to go back to the most recent amendment, but in any event, he's the fellow on scene who applies this local rule regularly.

[00:38:14] Speaker 00:
We aren't even the reviewing court on a regular basis for that district, and yet we're being asked to say, no, no, Judge Marra, you didn't interpret your own local rule correctly.

[00:38:25] Speaker 00:
That seems to be, to use your words, a heavy lift.

[00:38:28] Speaker 06:
Well, it is, and obviously, dealing with a local rule, it might be better if this ended up, if it wasn't the 11th Circuit, but this is the case that's before you and where it's gone up the first time.

[00:38:38] Speaker 06:
A lot of people rely on these rules.

[00:38:39] Speaker 06:
You'd probably have to recode the compu-law things if all of a sudden a recon motion or a Rule 59 motion no longer deferred finality.

[00:38:50] Speaker 00:
Well, it does for other purposes, but the question is, does the specific language of this rule change that

[00:38:58] Speaker 00:
otherwise general principle with respect to rule 59.

[00:39:02] Speaker 00:
You're absolutely right that typically rule 59 will postpone the finality of a judgment until the rule 59 motion is resolved for purposes of appellate proceedings.

[00:39:15] Speaker 00:
And fee proceedings.

[00:39:16] Speaker 00:
Well, that's the question.

[00:39:18] Speaker 00:
Is it true for fee proceedings if the local... Let me back off.

[00:39:23] Speaker 00:
Suppose that this local rule said supplemental review

[00:39:28] Speaker 00:
including rule 59 applications.

[00:39:30] Speaker 00:
There'd be no doubt that you'd lose.

[00:39:34] Speaker 06:
But you wouldn't leave final in before judgment earlier in the sentence.

[00:39:38] Speaker 00:
Many times district judges enter judgments and they call them final judgments.

[00:39:43] Speaker 00:
And then somebody files a rule 59 and it becomes not final for purposes of appeal.

[00:39:49] Speaker 00:
So I don't know that you get much mileage out of the word final judgment.

[00:39:52] Speaker 00:
But what I'm bothered by is I have the same question that Judge Dykhead, which is,

[00:39:58] Speaker 00:
What does supplemental review mean if it doesn't include something like an application for a motion for reconsideration under Rule 59?

[00:40:09] Speaker 06:
And I think the best answer is it means something that happens with an order that's not a final judgment.

[00:40:16] Speaker 06:
Under this rule, you have final judgments, and we know how those work, and we know how timing works on that.

[00:40:20] Speaker 06:
It also talks about orders that might trigger a right to fees, and orders, like a summary judgment order,

[00:40:27] Speaker 00:
So a motion for reconsideration of an order would be treated differently in your view from a motion for reconsideration of a judgment?

[00:40:35] Speaker 06:
I don't know if you label it that.

[00:40:37] Speaker 06:
Probably, first of all, the answer is probably yes, because it's not a final judgment.

[00:40:41] Speaker 06:
It's a different category.

[00:40:43] Speaker 06:
And at least there, you're in fair game talking about supplement of proceedings.

[00:40:46] Speaker 06:
But certainly, in the one example we found in the case law with the summary judgment order, the court dealing with that magistrate and then went up to the

[00:40:55] Speaker 06:
The district court judge said, I've got a summary judgment order.

[00:40:58] Speaker 06:
Fees are potentially awardable here.

[00:41:01] Speaker 06:
And there was a challenge on timeliness.

[00:41:02] Speaker 06:
And he said that the date started, the 60 days started, at issuance of that order.

[00:41:08] Speaker 06:
But the only case you have from the 11th Circuit has supplemental review.

[00:41:13] Speaker 06:
It has that version.

[00:41:15] Speaker 03:
It's different because it involved post-trial motions.

[00:41:18] Speaker 03:
for a new trial, which you can see would be a different situation than a motion for reconsideration, because it could change the whole outlook of the case.

[00:41:28] Speaker 03:
It could change the judgment.

[00:41:30] Speaker 03:
Motions for reconsideration generally don't change the judgment.

[00:41:35] Speaker 03:
So whatever the meaning of this rule is, it seems to me there's a pretty strong argument that it at least says that motions for reconsideration aren't going to toll the time.

[00:41:46] Speaker 06:
I would argue that

[00:41:47] Speaker 06:
Contrary, I mean, maybe in practice, reconsideration motions aren't as successful as post-trial motions, although those have often low probability of success as well.

[00:41:56] Speaker 06:
But in either case, you could completely flip the outcome, or you could certainly alter the basis on which somebody could get fees or not.

[00:42:04] Speaker 06:
And they're both pretty tight timeframe motions.

[00:42:06] Speaker 06:
So the policy reasons for waiting for the post-trial motion, I think, are not really different than waiting for the Rule 59 motion, and the rule doesn't distinguish.

[00:42:13] Speaker 00:
Well, the Gondamas case didn't address this supplemental

[00:42:17] Speaker 00:
review issue.

[00:42:18] Speaker 00:
And as I went back and looked at the briefs, actually only one brief in that case, and it didn't mention supplemental review.

[00:42:25] Speaker 00:
So it's not clear to me that the Galdamas case was focused on the issue that we have here.

[00:42:31] Speaker 00:
But there's another case from the 11th Circuit, the Clark case.

[00:42:34] Speaker 00:
Are you familiar with that one?

[00:42:35] Speaker 00:
I'm not sure I have that.

[00:42:36] Speaker 00:
Clark against Housing Authority of the City of Alma.

[00:42:39] Speaker 00:
Okay, which says, construing a rule with

[00:42:43] Speaker 00:
least somewhat similar language coming from a different district and referring to a prior decision, we held that for purposes of the local rule, post-judgment motions or subsequent appeal do not affect in any manner the time limits contained in the local rule.

[00:43:00] Speaker 00:
So there, the court is saying with a rule that says you file after the judgment,

[00:43:08] Speaker 00:
within a certain number of days, it doesn't matter if there are subsequent motions made.

[00:43:13] Speaker 00:
And it seems to me, if anything, that case seems to say that it's least open to question whether the local rule should be read as applying in a situation where there's a motion for reconsideration.

[00:43:28] Speaker 06:
Well, I think, look, with different words, you could clear this up in different ways.

[00:43:33] Speaker 06:
I think the one case you do have is Galdan's.

[00:43:35] Speaker 06:
I will grant you they didn't spend time discussing this, but it's the rule.

[00:43:39] Speaker 06:
and the supplemental review.

[00:43:40] Speaker 04:
You say it's a rule, but is Goldin's a published case?

[00:43:44] Speaker 06:
It's not a published case.

[00:43:45] Speaker 06:
It's not precedent or authority.

[00:43:47] Speaker 04:
It's not precedent.

[00:43:48] Speaker 04:
It's persuasive.

[00:43:49] Speaker 04:
But again, if you're trying to- It's persuasive.

[00:43:51] Speaker 04:
Yes.

[00:43:51] Speaker 04:
OK.

[00:43:52] Speaker 04:
But it's not binding.

[00:43:53] Speaker 04:
It's not authoritative.

[00:43:54] Speaker 04:
And you're asking us to reverse a judge on the standard of review of abuse of discretion.

[00:44:02] Speaker 06:
Our position is it's a clear misreading of the rule.

[00:44:06] Speaker 06:
To breathe into supplemental review, the notion

[00:44:09] Speaker 04:
That's not the standard of review, a clear misreading.

[00:44:14] Speaker 04:
It's an abuse of discretion.

[00:44:16] Speaker 04:
It is generally an abuse of discretion on an attorney's case motion.

[00:44:18] Speaker 04:
No, that is a standard review, abuse of discretion.

[00:44:22] Speaker 06:
Yes, sir.

[00:44:24] Speaker 06:
We would argue that within that general standard of review, when you have just a rule to read and a case to read, you're in a similar position to the district judge.

[00:44:33] Speaker 06:
I recognize what you said about him being there.

[00:44:37] Speaker 06:
Again, the Galdane's case has the current version of the rule, the rule that we say Judge Merrill read incorrectly, and still does a traditional Rule 59 now.

[00:44:46] Speaker 06:
It doesn't quote the relevant part of the rule.

[00:44:49] Speaker 06:
It doesn't, but it's part of the same sentence that was before the court.

[00:44:53] Speaker 06:
I mean, that's kind of a sea change to say that we used to start the clock after denial of Rule 59 motions.

[00:45:00] Speaker 06:
We've done that for years.

[00:45:01] Speaker 06:
We have a lot of cases that say that.

[00:45:03] Speaker 06:
That's all out the window now.

[00:45:04] Speaker 06:
because this unarticulated supplemental review covers anything, including things that we used to say actually stay finality and breathe life and define the term final judgment that's early in the role.

[00:45:17] Speaker 06:
That's a big change.

[00:45:19] Speaker 06:
And it's a big change that would affect a lot of people calculating time.

[00:45:22] Speaker 06:
And to say that was intended without any commentary, that seems like a stretch.

[00:45:27] Speaker 06:
And again, we're not asking, recognizing there's an abusive discretion standard.

[00:45:33] Speaker 06:
We are still in the area where it is a legal procedural matter.

[00:45:38] Speaker 06:
And I think it's an issue of some importance.

[00:45:41] Speaker 06:
And this is the first time it came up.

[00:45:43] Speaker 03:
OK.

[00:45:43] Speaker 03:
All right.

[00:45:43] Speaker 03:
I think we're out of time.

[00:45:45] Speaker 03:
Thank you, Mr. Aristotle.

[00:45:46] Speaker 03:
We'll give you a minute for your rebuttal.

[00:45:50] Speaker 03:
Mr. Kubler, you have three minutes here.

[00:46:03] Speaker 01:
Well, I guess I would speak to the sanctions issue that I certainly agree with what's been said so far by the court.

[00:46:14] Speaker 01:
And I would say with this Galdame's case, they don't talk about the language added to the rule and simply refer back to the member's first case, which predated the addition of that language.

[00:46:25] Speaker 01:
And it appears it simply went unnoticed.

[00:46:27] Speaker 01:
I mean, there's no indication.

[00:46:29] Speaker 01:
The magistrate judge in the Galdame's case just

[00:46:33] Speaker 01:
cited members first, and then it went up the ladder and was affirmed.

[00:46:36] Speaker 01:
And it doesn't appear anyone thought to argue that the rule changed during this time period between members first and added this language.

[00:46:43] Speaker 01:
And so the judge was correct in finding it not persuasive.

[00:46:48] Speaker 01:
So that's our position.

[00:46:52] Speaker 01:
Also.

[00:46:55] Speaker 00:
Do you know if you're from that district, I think?

[00:46:59] Speaker 00:
Do you know if this particular local rule has ever been applied either in this manner or in the manner that your opposing counsel urges before?

[00:47:11] Speaker 00:
Has there been any litigation of this issue as to the local rule other than this case?

[00:47:17] Speaker 01:
We have not found any.

[00:47:20] Speaker 01:
So I'm certainly not aware of anything that was construed as they suggest.

[00:47:24] Speaker 01:
But I just don't think we found anything on that.

[00:47:28] Speaker 01:
But it was added after the member's first case.

[00:47:31] Speaker 01:
And the member's first case is what Galdames relied upon for authority.

[00:47:35] Speaker 01:
They didn't seem to miss the fact that the rule changed during that period, and this language was added.

[00:47:39] Speaker 01:
And there was no reference to this language.

[00:47:42] Speaker 01:
And there again, the judge simply found it not persuasive for that reason, which we feel was appropriate.

[00:47:49] Speaker 01:
And we have the Federal Circuit case, which cites ZK Marine, the local district court case, that said that

[00:47:59] Speaker 01:
You know, on a motion for reconsideration, you don't use that to add new authority.

[00:48:04] Speaker 01:
And it says, yeah, a motion for reconsideration should not be a vehicle to present.

[00:48:09] Speaker 03:
That doesn't have anything to do with what happens here.

[00:48:12] Speaker 03:
We're not barred from looking at a case because it wasn't cited below.

[00:48:18] Speaker 01:
Well, I understand, Your Honor.

[00:48:20] Speaker 01:
I'm just saying that they had misused this as a mechanism to raise the case.

[00:48:25] Speaker 01:
In any case, I guess that's pretty much where we stand.

[00:48:27] Speaker 01:
We feel that the judge was correct that this language supplemental review does need motions for reconsideration because I can't find any other explanation for it.

[00:48:39] Speaker 01:
And it was added.

[00:48:41] Speaker 01:
And certainly, this judge has been on the bench many years.

[00:48:43] Speaker 01:
And as you correctly pointed out, he may have even been involved in the formulation of this added language.

[00:48:50] Speaker 01:
I mean, he's been on the bench for decades.

[00:48:53] Speaker 01:
So this was done.

[00:48:55] Speaker 01:
maybe 10 years ago.

[00:48:57] Speaker 01:
So in any case, we feel that he was very familiar with the rule, and he made a correct interpretation of it.

[00:49:05] Speaker 01:
And this is his local rule, and that's how he felt it should be construed.

[00:49:12] Speaker 01:
OK, thank you, Mr. Cooper.

[00:49:14] Speaker 03:
Thank you.

[00:49:15] Speaker 06:
May I expect five seconds just to respond to the chair?

[00:49:17] Speaker 03:
Yeah, yeah, I gave you a minute.

[00:49:18] Speaker 06:
You have a minute.

[00:49:20] Speaker 06:
OK, thank you.

[00:49:20] Speaker 06:
Staying with your question, obviously, we searched extensively to find the case you were looking for.

[00:49:25] Speaker 06:
The one case we found, and it doesn't go to the broader question, but it goes to the question of what the heck supplemental review means, is this case.

[00:49:33] Speaker 06:
It's not published.

[00:49:34] Speaker 06:
We can provide a copy to the court.

[00:49:35] Speaker 06:
It's called Arvat v. Scottsdale.

[00:49:38] Speaker 06:
It's a Southern District of Florida 2016 case.

[00:49:41] Speaker 06:
Magistrate Judge Turnoff and Judge Gales was the judge.

[00:49:44] Speaker 06:
And that was the case where... Does it have a Westlaw sign?

[00:49:48] Speaker 06:
It doesn't.

[00:49:48] Speaker 06:
I mean, at least what we were able to print up here.

[00:49:50] Speaker 06:
But we can submit a copy to the court.

[00:49:52] Speaker 06:
today.

[00:49:53] Speaker 06:
We'll get it for you.

[00:49:54] Speaker 00:
You can submit it to the court.

[00:49:56] Speaker 06:
I think what I learned this morning... Submit it without argument?

[00:49:59] Speaker 06:
Yes, sir.

[00:50:00] Speaker 06:
Westlaw doesn't publish his magistrate opinions.

[00:50:02] Speaker 00:
Lexis does, but we'll get into... Westlaw publishes many magistrate opinions, maybe, or hasn't published this one.

[00:50:08] Speaker 00:
What's the year of this?

[00:50:09] Speaker 06:
2016.

[00:50:11] Speaker 06:
And I'm not going to say that it says more than it does.

[00:50:13] Speaker 06:
What it does say, it does apply the 60 days, and it does trigger it from an order, and it does use the supplemental review.

[00:50:20] Speaker 06:
The words are there.

[00:50:21] Speaker 06:
So at least, again,

[00:50:23] Speaker 06:
Muffing it as an example of what those words could apply to.

[00:50:26] Speaker 00:
Well, wait.

[00:50:27] Speaker 00:
Does it hold that the time runs from the denial of a motion for reconsideration?

[00:50:35] Speaker 06:
No, because that wasn't the issue in the case.

[00:50:36] Speaker 06:
As I said, it's an example of, in other words, if you were to agree with us that the words final judgment mean what they always have meant, and that that judgment is not final if there's a Rule 59 review, then the obvious question, and fair question,

[00:50:50] Speaker 06:
Well, then what is supplemental review if it's not a Rule 59 motion?

[00:50:54] Speaker 06:
It seems like supplemental review at the district court.

[00:50:57] Speaker 00:
And this court, the court you're talking about said, what about that question?

[00:51:02] Speaker 06:
All it did is it dealt with an example of something that's not a judgment that's waiting to be final.

[00:51:08] Speaker 06:
It's a summary judgment order.

[00:51:10] Speaker 06:
There was a question of whether a fee application based on that was timely.

[00:51:14] Speaker 06:
And the court said, I'm going to count to 60 days under this rule that says you got 60 days from the order.

[00:51:20] Speaker 06:
irrespective of supplemental review or appeal.

[00:51:22] Speaker 06:
So again, there's a sparse authority here.

[00:51:25] Speaker 06:
It doesn't seem very helpful on this issue.

[00:51:28] Speaker 03:
Not to you, anyway.

[00:51:29] Speaker 06:
Well, I think it is.

[00:51:31] Speaker 06:
I think the question of what those words would apply to is a natural one and an important one, and that's an example.

[00:51:39] Speaker 06:
But there is research.

[00:51:40] Speaker 06:
There's not another case where a judge did what Judge Marra did here.

[00:51:45] Speaker 06:
So there's not an affirmative ruling saying,

[00:51:48] Speaker 06:
You'd think it would come up more.

[00:51:52] Speaker 06:
If that's really the change we say it is in terms of how you calculate time, you'd think it would come up more often.

[00:51:56] Speaker 06:
But we don't have time like this.

[00:51:58] Speaker 03:
OK, thank you.

[00:52:00] Speaker 03:
Thank all counsel.

[00:52:01] Speaker 03:
The case is submitted.