[00:00:47] Speaker 04:
We will hear argument next in number 17-1891, Lippert Components against Moride.

[00:00:56] Speaker 04:
Is that Moride?

[00:00:59] Speaker 04:
Yes.

[00:00:59] Speaker 04:
Mr. Fountain.

[00:01:02] Speaker 01:
Good morning, Your Honors.

[00:01:03] Speaker 01:
According to the trial court, one of the principal tenants of appellate practice before this court is now over.

[00:01:11] Speaker 01:
It ends in this case.

[00:01:13] Speaker 01:
Specifically,

[00:01:14] Speaker 01:
What this court has preferred to do is decide cases based upon the arguments made by the trial court below.

[00:01:22] Speaker 01:
But now, with the trial court's order of docket exhibit 145, the trial court gets to decide what's in that record, what can be allowed in the record and what can't.

[00:01:38] Speaker 04:
And according to the last sentence... Can I start you on the question of our court's jurisdiction?

[00:01:43] Speaker 04:
Yes.

[00:01:44] Speaker 04:
You invoke as the necessary basis for our court to have jurisdiction, 1292 provision on injunctions.

[00:01:56] Speaker 04:
Yes.

[00:01:56] Speaker 04:
So you have to establish for us to have jurisdiction that an injunction was entered against you.

[00:02:05] Speaker 04:
Am I right in thinking that the only

[00:02:08] Speaker 04:
basis for your contention that there was an injunction against you is the order that you need court permission before you can file new papers.

[00:02:20] Speaker 01:
That's one of the bases.

[00:02:20] Speaker 01:
That's the basis I raised in the initial brief, yes.

[00:02:24] Speaker 01:
And that injunction came because of the motion by Moride, docket number 117.

[00:02:33] Speaker 04:
But first, I mean, before we talk about whether that

[00:02:38] Speaker 04:
is sufficient to constitute an injunction.

[00:02:41] Speaker 04:
You said that was only one basis.

[00:02:42] Speaker 04:
So what additional act of the district court constitutes an injunction against you?

[00:02:51] Speaker 01:
Jurisdiction can be based on an injunction, and that's 1292C.

[00:02:56] Speaker 01:
Jurisdiction in this court can also be based on other grounds.

[00:02:59] Speaker 01:
We do have the exceptions to 1295 from precision scientific, where you have a. Well, just before we get into other areas, again,

[00:03:08] Speaker 03:
Other than the order regarding filings, is there anything else that satisfies the requirement in your view of an injunction than sticking just to the injunction basis for jurisdiction?

[00:03:21] Speaker 01:
The injunction against me was in two parts.

[00:03:24] Speaker 01:
First and most obvious, I can't file things without permission.

[00:03:28] Speaker 01:
All right.

[00:03:29] Speaker 01:
Second part, my past filings were stricken.

[00:03:32] Speaker 01:
I can't use those.

[00:03:34] Speaker 01:
They're gone.

[00:03:35] Speaker 01:
So my basis for appeal

[00:03:37] Speaker 01:
later on, on any of the issues that come back, particularly like the $12,000 fine.

[00:03:42] Speaker 01:
It's out of the record.

[00:03:43] Speaker 01:
I have to come in with the last sentence of Rule 46 to make that happen.

[00:03:47] Speaker 01:
I have to bring new arguments to you.

[00:03:49] Speaker 01:
And with regard to even the injunction against adding new filings without court permission, we see where that has brought about a substantive problem in this case already.

[00:03:59] Speaker 01:
The last page of the court's order on Docket Entry 145, the footnote says, there are ongoing proceedings against Fountain

[00:04:07] Speaker 01:
with regard to the amount of money he owes as a result of the order of documentary 90.

[00:04:13] Speaker 01:
And what happened there?

[00:04:14] Speaker 01:
I had objections I wanted to make, and that was documentary 160.

[00:04:19] Speaker 01:
Those objections were not allowed in the record.

[00:04:22] Speaker 01:
That's the order of rules 161.

[00:04:25] Speaker 01:
So I can't bring to you, except as new argument, why I think that $16,000 award was incorrect.

[00:04:32] Speaker 01:
And that's contrary to the usual rules of this court.

[00:04:35] Speaker 01:
So yes.

[00:04:36] Speaker 01:
There is that injunction, and that injunction has had substantive effect.

[00:04:40] Speaker 01:
If we don't deal with it now, we'll never be able to reverse the immediate procedural detriments of that order.

[00:04:48] Speaker 01:
And that will have not just monetary consequences, but consequences to this court as well as to how we handle the next appeal.

[00:04:55] Speaker 01:
Beyond that, the district's court's order would reverse one of the principal teachings we have from the United States Supreme Court

[00:05:05] Speaker 01:
coming down from the cases of eBay and SVC Hijack.

[00:05:11] Speaker 01:
Those cases taught us that patent law lawsuits have to be mainstreamed into the usual procedural and substantive, occasionally, rules that we have for every other court.

[00:05:23] Speaker 01:
But the trial court in this case has said, no, the basic evidentiary rules don't apply here, despite what this court said in KS HEM.

[00:05:32] Speaker 01:
Rule 15 doesn't apply here.

[00:05:35] Speaker 01:
And the changes that were made to Rule 1 in December of 2015, or in the middle of this case, don't apply either.

[00:05:42] Speaker 01:
Specifically, with regard to the evidentiary rules, what constituted bad faith in the court that brought this?

[00:05:49] Speaker 01:
And that's where the reprimand comes in.

[00:05:51] Speaker 01:
We'll go back to precision scientific.

[00:05:53] Speaker 01:
The bad faith was saying, you know what, Judge?

[00:05:56] Speaker 01:
I don't have to make any contentions in claims construction, because the other side is missing

[00:06:02] Speaker 01:
a critical element of their case, even for claims construction.

[00:06:07] Speaker 01:
They have no evidence of what the level of ordinary skill in the art is.

[00:06:10] Speaker 01:
Therefore, my plan, Judge, in the claim construction hearing is to stand up and say, no evidence, no ruling.

[00:06:18] Speaker 01:
We cannot go further.

[00:06:19] Speaker 01:
We have now taken the claims construction process into what used to be the function of summary judgment, which is, of course, as we know, largely neutered these days.

[00:06:29] Speaker 04:
And we're using the claims construction.

[00:06:31] Speaker 04:
I'm sorry to interrupt.

[00:06:32] Speaker 04:
Can I take you back to something that I think I heard you say, but maybe I didn't.

[00:06:36] Speaker 04:
I thought you said something about how you're inhibited from filing documents necessary for your appeal.

[00:06:43] Speaker 04:
Yes.

[00:06:44] Speaker 04:
So did the district court not, at least maybe subsequently to the particular order that you're challenging here, enter an order saying that the prior order does not require you

[00:06:59] Speaker 04:
to seek leave prior to filing any documents necessary to seek appellate relief?

[00:07:04] Speaker 01:
That's what it said, but it didn't do that.

[00:07:07] Speaker 01:
Because in that same order, and by the way, that order came after the district court lost the authority to address that issue again.

[00:07:14] Speaker 01:
As soon as this appeal was filed, the court can't go back, except under Rule 60, which it didn't do, and change its order to take jurisdiction away from this court.

[00:07:24] Speaker 01:
The original order said it can't file any documents anymore, including

[00:07:28] Speaker 04:
It said without permission, and so a subsequent order says, I hereby grant you blanket permission for this category.

[00:07:37] Speaker 01:
Six months after the order came down, five months after my request for permission, and five months after any opportunity for appeal existed because if I can't do it within 30 days, this court has no jurisdiction over my appeal.

[00:07:53] Speaker 01:
So it effectively threw me out of court by sitting on the case six months.

[00:07:59] Speaker 01:
So the second issue comes up with the next appeal, because the court acknowledged in the last page of its order, we still have ongoing proceedings against Fowler.

[00:08:11] Speaker 01:
Money judgment, I can't bring that in except under Rule 46 to you.

[00:08:15] Speaker 01:
We still have other issues coming in now.

[00:08:18] Speaker 01:
Last Thursday, they filed a joint motion, more right than liberty, said we want a retroactive order that includes a prosecution bar.

[00:08:29] Speaker 01:
Wait a minute.

[00:08:31] Speaker 01:
I represent one of their other competitors in a for patent prosecution.

[00:08:35] Speaker 01:
I now have to come back into court and say, wait a minute, a retroactive prosecution bar?

[00:08:39] Speaker 01:
I'm in this case, substantively whether I want to be or not.

[00:08:43] Speaker 01:
And now I have to go back and add additional costs, seek permission to file a brief that should be as a matter of course to preserve evidence.

[00:08:54] Speaker 01:
And I'm not always going to be granted it.

[00:08:56] Speaker 01:
It's not a matter of,

[00:08:57] Speaker 01:
Just asking you to be given permission, because I wasn't.

[00:09:01] Speaker 01:
Or I was given permission five months after the deadline for establishing jurisdictions gone.

[00:09:07] Speaker 01:
That is effectively throwing me out of court.

[00:09:10] Speaker 01:
And that's where the injunction really has substantive procedural problems now.

[00:09:15] Speaker 03:
Throwing you out of court with respect to this case, or throwing you out of court with respect to the sanctions matter against you?

[00:09:26] Speaker 01:
That particular instance threw me out of court with regard to this case.

[00:09:29] Speaker 03:
Right.

[00:09:29] Speaker 03:
But you're not a party in this case, and you're not counsel in this case at this point, right?

[00:09:35] Speaker 01:
Both the magistrate judge and the trial judge acknowledge, for purposes of the sanctions, I am, as they put it, an aggrieved party.

[00:09:43] Speaker 03:
For the sanctions against you personally?

[00:09:44] Speaker 03:
Yes.

[00:09:45] Speaker 03:
Yeah, but that's a different matter.

[00:09:47] Speaker 03:
I mean, that's a matter which I gather, at some point, we will see a separate appeal on, right?

[00:09:54] Speaker 01:
That is one.

[00:09:54] Speaker 03:
You filed an appeal and then withdrew it, as I understand it.

[00:09:57] Speaker 03:
But in contemplation, I would assume that you will ultimately take an appeal in that matter.

[00:10:01] Speaker 01:
Right.

[00:10:02] Speaker 01:
I am also in a grieved party with regard to the striking of the record.

[00:10:06] Speaker 01:
All right.

[00:10:06] Speaker 01:
But that's the injunction issue.

[00:10:08] Speaker 01:
That's the injunction issue.

[00:10:09] Speaker 01:
And that imposes a sanction on me in several respects.

[00:10:12] Speaker 01:
It also affects the public.

[00:10:14] Speaker 01:
I won in order 116.

[00:10:18] Speaker 01:
My briefing to win is gone from the record.

[00:10:21] Speaker 01:
The public has no right to see that.

[00:10:23] Speaker 01:
I have personally been accused of what amounts to professional malpractice in briefing 107.

[00:10:29] Speaker 01:
My defense against that is gone from the public record.

[00:10:33] Speaker 01:
I can't defend against that.

[00:10:36] Speaker 01:
These are part of the context that this court has to face in this case.

[00:10:41] Speaker 01:
And that context is obviously broader than just me.

[00:10:43] Speaker 01:
If you look at the federal court management statistics, you'll see the systemic dismantlement of civil litigation in that particular district court

[00:10:52] Speaker 01:
During the time period of this lawsuit, from 2014 to 2017, the average time to trial has gone from 25 months to 51 months.

[00:11:04] Speaker 01:
While the number of filings has dropped by a third, the number of pending cases has dropped by a third.

[00:11:10] Speaker 01:
This case is anecdotal evidence of what's been going on.

[00:11:13] Speaker 01:
Now, we can't affect that directly, but we can come back in this case.

[00:11:19] Speaker 01:
What I want from this court here is three sentences.

[00:11:24] Speaker 01:
First, this court has jurisdiction to hear this appeal, at least under 1292C.

[00:11:30] Speaker 01:
Second, in the order of docket entry 145, the findings of fact and conclusions of law with regard to the actions taken by Mr. Fountain were clearly erroneous and contrary to applicable law.

[00:11:48] Speaker 01:
Therefore,

[00:11:48] Speaker 01:
The findings of fact by Mr. Falling are reversed, and the order restricting his future filings and striking his past filings are vacated.

[00:12:00] Speaker 01:
Obviously, it would be nice to have a more detailed order explaining all the things that was done.

[00:12:04] Speaker 01:
But let's face it, we're all busy, and the best is the enemy of the good.

[00:12:07] Speaker 01:
We can't change the damage that's been done.

[00:12:10] Speaker 01:
But I believe those three sentences will cut off future damage to a large degree.

[00:12:16] Speaker 04:
You've used some of your rebuttal time.

[00:12:18] Speaker 04:
Why don't you save the remainder and come back in some minutes?

[00:12:29] Speaker 04:
Mr. Salteel?

[00:12:37] Speaker 02:
Good morning, Your Honors.

[00:12:39] Speaker 02:
May it please the Court?

[00:12:42] Speaker 02:
Simply put, we don't believe that the order from which Mr. Fowler is appealing

[00:12:46] Speaker 02:
that this court has jurisdiction at this time, and we ask that the court dismiss it.

[00:12:50] Speaker 02:
To go directly to the point you raised with Mr. Fountain as to whether there's an injunction at issue, we do not believe that the court's order was an injunction.

[00:13:01] Speaker 02:
When you think of an injunction, you think of something normally that's an order prohibiting you from doing something that you're ordinarily entitled to do.

[00:13:11] Speaker 02:
In district court cases, you are not ordinarily, as a non-party, entitled to file documents.

[00:13:18] Speaker 02:
And so thinking of it in that terms, this is not an injunction.

[00:13:21] Speaker 02:
But if we look at the case law that was cited by Mr. Faulkner and we go over what they've defined what an injunction is, an injunction has to relate to an integral part of the very matter being litigated.

[00:13:34] Speaker 02:
That was what the NorCal case said.

[00:13:37] Speaker 02:
The W. Holdings case said,

[00:13:39] Speaker 02:
that an injunction has to be aimed at a party, enforceable by contempt, and provide some of the relief asked for by another party.

[00:13:47] Speaker 02:
And then the third case, I think Mr. Fountain said, was the Alabama case, which says that the order must give some or all of the relief sought in the complaint.

[00:13:55] Speaker 02:
And we see a trend here that an injunction is relief asked by one party against another party that relates to the complaint, relates to the matters being litigated.

[00:14:05] Speaker 02:
Mr. Fountain's not a party in this case anymore.

[00:14:08] Speaker 02:
he hasn't sought to intervene.

[00:14:09] Speaker 02:
And the relief is that this is not something that either the parties have asked, and it doesn't relate to the matters being litigated.

[00:14:15] Speaker 02:
And therefore, that this order is not an injunction.

[00:14:19] Speaker 02:
This is just an order of the district court managing its docket, which it's entitled to do.

[00:14:24] Speaker 02:
And it normally requires partying in lots of instances.

[00:14:28] Speaker 02:
And we gave a few examples in the briefing where it's quite common that a judge will say, you know what?

[00:14:33] Speaker 02:
You need leave before you file something, or you need leave to do something.

[00:14:37] Speaker 02:
And this is very typical, and it's well within the court's discretion to do that, and it's not an injunction.

[00:14:44] Speaker 02:
With respect to the motion to strike, I think we cited some cases in our brief.

[00:14:50] Speaker 03:
I'm not sure that your original statement about what constitutes an injunction seemed to me that might not be quite right.

[00:15:01] Speaker 03:
You said, I think, that an injunction

[00:15:04] Speaker 03:
An order is not an injunction if it nearly prohibits you from doing something that you would normally be entitled to do.

[00:15:13] Speaker 03:
Things like restraining orders are definitely injunctions, even though they may be saying you are to keep away from the following address, which other people are free to do.

[00:15:25] Speaker 03:
So you can't really mean it's quite that broad.

[00:15:29] Speaker 02:
That was a more simplistic way of discussing injunction.

[00:15:32] Speaker 02:
And that's why I went back to the specifics of what the courts and W Holdings in Alabama said.

[00:15:39] Speaker 02:
It's really if one party is requesting against another party, that relates to the merits of the litigation.

[00:15:45] Speaker 02:
And I think that's what courts have used as a definition of the injunction.

[00:15:48] Speaker 02:
And I think that applies here.

[00:15:49] Speaker 04:
But it can't be limited to what's requested by a party.

[00:15:54] Speaker 04:
If a court in Sue Esponte orders you

[00:15:58] Speaker 04:
to do something outside the courtroom or not to do something outside the courtroom, the fact that the other party didn't ask for it can't change its character as an injunction.

[00:16:10] Speaker 04:
I would think that the narrowest point you have to make is that the subject of this directive is entirely about the conduct of the proceedings in this court and of a quite familiar sort too.

[00:16:29] Speaker 04:
Namely, don't file without leave.

[00:16:35] Speaker 02:
I think that's right.

[00:16:35] Speaker 02:
I think, to go back to the earlier point, the court wouldn't be doing something unless it related to the matter of the litigation.

[00:16:48] Speaker 02:
And there's differences, I think, between the merits of the case and just managing its own docket.

[00:16:54] Speaker 02:
And this is something that the court is doing to manage its own docket.

[00:17:02] Speaker 02:
With respect to the order to strike, that's a discovery order.

[00:17:07] Speaker 02:
And I think the case law is very clear.

[00:17:08] Speaker 02:
Discovery orders are not appealable.

[00:17:10] Speaker 02:
They're not final decisions.

[00:17:11] Speaker 02:
They don't qualify for any of the exceptions.

[00:17:13] Speaker 02:
So I think anything that- A discovery order?

[00:17:16] Speaker 04:
An order relating to discovery.

[00:17:18] Speaker 04:
Wait, there are documents that are in the public record, and the court says, take them out of the public record.

[00:17:27] Speaker 04:
How do you connect that to the word discovery?

[00:17:41] Speaker 02:
Some of the documents that were being sought were orders relating to discovery.

[00:17:47] Speaker 02:
And so some of the filings that were being filed were a request for discovery.

[00:17:51] Speaker 02:
And that's why I pulled in that discovery orders are non-fileable or non-appealable subject to final order.

[00:18:00] Speaker 02:
There was also citations in the briefing to cases that dealt directly with motions to strike and specifically that motions to strike

[00:18:09] Speaker 02:
were not final orders and not appealable until a final order was issued.

[00:18:14] Speaker 02:
So to the extent that the motion to strike covered something more than documents related discovery.

[00:18:20] Speaker 04:
There's still not an injunction in your view, because they're very much about the conduct and progress of the litigation.

[00:18:27] Speaker 04:
I think that's a phrase from Gulfstream, maybe?

[00:18:30] Speaker 02:
Yeah.

[00:18:30] Speaker 02:
And it's about the court controlling and managing its own docket.

[00:18:34] Speaker 02:
This doesn't relate to injunctions.

[00:18:40] Speaker 02:
Um, lastly, I do want to address the findings of, uh, bad faith and the arguments about reputational impact that Mr. Fountain is aggrieved about.

[00:18:54] Speaker 02:
I think that the Nissen's case that was cited by Mr. Fountain deals with this issue.

[00:18:59] Speaker 02:
That was a case where the attorney was accused of intent to deceive, having committed inactual conduct.

[00:19:08] Speaker 02:
Um, but he was a non-party in the case.

[00:19:10] Speaker 02:
So the court ruled he didn't have standing, and he couldn't appeal the finding of inequitable conduct.

[00:19:16] Speaker 02:
The criticisms by the court of an attorney committing doing something inappropriate or acting in bad faith, those aren't appealable.

[00:19:26] Speaker 02:
Those don't give nonparties standing to appeal those orders.

[00:19:29] Speaker 02:
It's got to be something, a formal sanction, that was levied against Mr. Fung.

[00:19:33] Speaker 02:
In this case, there was no formal sanction levied against him.

[00:19:37] Speaker 02:
The district court made very clear the only sanction

[00:19:40] Speaker 02:
being issued was against Moride, not against Mr. Fallon.

[00:19:44] Speaker 02:
I think that relieves Mr. Fallon of standing in this court of jurisdiction to hear his appeal on those issues.

[00:19:52] Speaker 02:
I believe, unless there's other questions, I will turn it over to my opposing counsel.

[00:20:01] Speaker 04:
Thank you.

[00:20:07] Speaker 04:
Mr. Fromell?

[00:20:08] Speaker 00:
Correct, Your Honor.

[00:20:09] Speaker 00:
Thank you, Your Honors.

[00:20:10] Speaker 00:
It's very rare that I'm in court and agree with my opposing counsel, but I have very little to add other than to a point that was raised by Your Honors, the impact of this so-called injunction.

[00:20:22] Speaker 00:
We've had docket entries 146, 147, 157, 160, 162, and 175 that have since been filed by Mr. Fountain since this alleged injunction came into play.

[00:20:36] Speaker 00:
He raised the issue of the protective order, which just came up, and he's been provided with leave to address that issue.

[00:20:41] Speaker 00:
So I agree with my opposing counsel that this really is not an issue of an injunction, but really more of an issue of the court just maintaining its docket.

[00:20:49] Speaker 00:
And what I would suggest, Your Honors, is that this appeal itself to me seems to be an example of sort of serial litigation.

[00:20:57] Speaker 00:
We've dealt with Appeal 16-2151, which this court dismissed for lack of jurisdiction.

[00:21:03] Speaker 00:
Mr. Fountainray has appealed 17-2466 previously and then withdrew it.

[00:21:09] Speaker 00:
But as part of that appeal, not only did he appeal a different sanctions order, he also appealed and included within that this particular order.

[00:21:16] Speaker 00:
So to me, it seems like this is an issue where we can address all of these issues when the case below is resolved.

[00:21:24] Speaker 00:
We can address all these issues together rather than deal with them piecemeal.

[00:21:30] Speaker 00:
Any questions?

[00:21:32] Speaker 04:
No.

[00:21:32] Speaker 00:
Thank you.

[00:21:39] Speaker 01:
I'd like to address three comments that were made a moment ago.

[00:21:42] Speaker 01:
Judge Toronto, you said, isn't this just about conduct in the trial court?

[00:21:46] Speaker 01:
It's not.

[00:21:47] Speaker 01:
It's about addressing your docket on the issues you can hear, because they're preventing certain issues from being raised down there for you to consider.

[00:21:57] Speaker 01:
It's also addressing your docket in the sense that I can't bring the next appeal to you without getting permission from a trial judge who has a track record of sitting on things for six months.

[00:22:08] Speaker 01:
Which means my next approach to you is going to have to be a mandamus action.

[00:22:12] Speaker 01:
It seems kind of silly.

[00:22:13] Speaker 01:
A mandamus action should be an emergency that we have no other recourse for.

[00:22:19] Speaker 01:
It's a fast-track burden on everybody.

[00:22:21] Speaker 01:
So yeah, it's not just about what's happening in the trial court.

[00:22:25] Speaker 01:
It's about what's going to happen here, because I can't come here.

[00:22:28] Speaker 01:
Second, the question was made about prohibiting what I'm entitled to do versus not entitled to do.

[00:22:36] Speaker 01:
The magistrate judge said I had standing to address certain issues.

[00:22:41] Speaker 01:
So therefore I should be entitled to file documents as an aggrieved party on those issues.

[00:22:49] Speaker 01:
The relief that was asked for on those issues was in a motion, docket entry 107, by the other side.

[00:22:56] Speaker 01:
They were asking for relief.

[00:22:58] Speaker 01:
They were asking for injunctive relief.

[00:23:00] Speaker 01:
They didn't get exactly the injunction they asked for.

[00:23:02] Speaker 01:
They got something else.

[00:23:05] Speaker 01:
But it was still a relief that they were seeking to obtain from someone who was considered a bereaved party for a specific purpose.

[00:23:14] Speaker 01:
And they got that.

[00:23:14] Speaker 01:
They got an injunction as a result of that.

[00:23:18] Speaker 01:
Your Honor, are there any other questions I could help you with?

[00:23:22] Speaker 04:
No.

[00:23:22] Speaker 04:
Thank you for your argument.

[00:23:22] Speaker 04:
Thank you for your consideration.

[00:23:24] Speaker 04:
Thanks, all counsel.

[00:23:25] Speaker 04:
And the case is submitted.

[00:23:27] Speaker 04:
The court will stand in recess.

[00:23:30] Speaker 04:
All rise.

[00:23:32] Speaker 01:
The Honorable Court is adjourned until Monday morning at 6 o'clock AM.