Comedy Club, Inc. v. Improv West Associates
| Decision Date | 07 September 2007 |
| Docket Number | No. 05-55739.,No. 05-56100.,05-55739.,05-56100. |
| Citation | 514 F.3d 833 |
| Parties | COMEDY CLUB, INC., a Louisiana corporation; Al Copeland Investments, Inc., a Louisiana corporation, Plaintiffs-Appellants, v. IMPROV WEST ASSOCIATES, a California Limited Partnership; California Comedy, Inc., a California corporation, Defendants-Appellees. Comedy Club, Inc., a Louisiana corporation; Al Copeland Investments, Inc., a Louisiana corporation, Plaintiffs-Appellants, v. Improv West Associates, a California Limited Partnership; California Comedy, Inc., a California corporation, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Karina B. Sterman, Kelly O. Scott, Ervin, Cohen & Jessup LLP, Beverly Hills, CA, for appellants Comedy Club, Inc. and Al Copeland Investments, Inc.
Robert N. Klieger, Irell & Manella LLP, Los Angeles, CA, for appellees Improv West Associates and California Comedy, Inc.
Appeal from the United States District Court for the Central District of California; William Matthew Byrne, Senior Judge, Presiding. D.C. No. CV-03-08134-WMB.
Before: JEROME FARRIS and RONALD M. GOULD, Circuit Judges, and KEVIN THOMAS DUFFY,* District Judge.
The opinion filed on September 7, 2007 and published at 502 F.3d 1100 is AMENDED as follows.
The final parenthetical in the first full paragraph on page 1114 states:
(reasoning that a contract can not place "a substantial segment of the market off limits").
The final parenthetical in the first full paragraph on page 1114 is deleted in its entirety and replaced with the following:
(reasoning that a contract cannot place "a substantial segment of the market off limits").
The second sentence in footnote 17 on page 1114 states:
However, Dayton Time Lock made clear that it was assessing the requirements of CBPC § 16600, and its plain language applied standards from antitrust cases in aid of its application of § 16600, which was an issue under review.
The second sentence in footnote 17 on page 1114 is deleted in its entirety and replaced with the following:
However, Dayton Time Lock made clear that it was assessing the requirements of CBPC § 16600, and its plain language applied standards from antitrust cases in aid of its application of § 16600.
The panel, as constituted above, has unanimously voted to deny the petition for panel rehearing. Judge Gould voted to deny the petition for rehearing en banc, and Judges Farris and Duffy have so recommended.
The petition for en banc rehearing has been circulated to the full court, and no judge has requested a vote on whether to rehear the matter en banc. Fed. R.App. P. 35(b).
The petition for panel rehearing and the petition for rehearing en banc are denied. No further petitions for rehearing or rehearing en banc will be accepted.
IT IS SO ORDERED.
On June 13, 1999, Comedy Club, Inc. and Al Copeland Investments, Inc. (collectively "CCI") executed a Trademark License Agreement ("Trademark Agreement") with Improv West Associates ("Improv West") that granted CCI an exclusive nationwide license to use Improv West's trademarks. A few years later, CCI breached the agreement and sought to protect its interests in the trademarks in federal district court by filing a declaratory judgment action. After a complex procedural history, the parties were left with an arbitration award and two district court orders, one order compelling the parties to arbitrate, and another order confirming the arbitration award. CCI appeals both district court orders. We have jurisdiction under 28 U.S.C. § 1291. We lack jurisdiction to review the district court's order compelling arbitration. We affirm in part and vacate in part the district court's order confirming the arbitration award, and we remand to the district court for further proceedings.
Improv West is the founder of the Improv Comedy Club and the creator and owner of the "Improv" and "Improvisation" trademarks ("Improv marks"). CCI owns and operates restaurants and comedy clubs nationwide. On June 13, 1999, CCI and Improv West entered a Trademark Agreement1 that provided, inter alia: (1) that Improv West granted CCI an exclusive nationwide license to use the Improv, marks in connection with the opening of new comedy clubs; (2) that, according to a development schedule, CCI was to open four Improv clubs a year in 2001 through 2003;2 and (3) that CCI was prohibited from opening any non-Improv comedy clubs during the term of the Trademark Agreement.3 The Trademark Agreement also had an arbitration clause:
All disputes relating to or arising under this Agreement or the Asset Purchase Agreement shall be resolved by arbitration in Los Angeles, California in accordance with the commercial arbitration rules of the American Arbitration Association. In any such arbitration, the parties shall be entitled to discovery in the same manner as if the dispute was being litigated in Los Angeles Superior Court. Notwithstanding this agreement to arbitrate, the parties, in addition to arbitration, shall be entitled to pursue equitable remedies and agree that the state and federal courts shall have exclusive jurisdiction for such purpose and for the purpose of compelling arbitration and/or enforcing any arbitration award. The parties agree to submit to the jurisdiction of such courts and agree that service of process in any such action may be made by certified mail. The prevailing party in any arbitration or action to enforce this Agreement or the Asset Purchase Agreement shall be entitled to its costs, including reasonable attorneys fees.
CCI concedes that it failed to open eight Improv clubs by 2002,4 and that it was in default of amended § 12.a. of the Trademark Agreement. Consistent with Improv West's sole remedy, as stated in § 13.b.,5 Improv West sent CCI a letter asserting that CCI was in default of the Trademark Agreement, withdrawing CCI's license to use the Improv marks and rights to open more Improv clubs, and informing CCI that Improv West intended to begin opening its own Improv clubs.
In response to Improv West's letter, CCI filed a complaint in federal district court seeking declaratory relief. CCI's complaint sought a declaration that the covenant that CCI could not open any non-Improv comedy clubs was void under California Business and Professions Code ("CBPC") § 16600, and that CCI's failure to meet the development schedule did not revoke CCI's license to the Improv marks or right to open Improv clubs. Improv West then filed a demand for arbitration seeking damages.6
On August 2, 2004, the district court ordered the parties to arbitrate their dispute. CCI did not appeal that order until May 16, 2005.
On February 28, 2005, the arbitrator entered a Partial Final Arbitration Award that stated: (1) that CCI defaulted on the Trademark Agreement by failing to adhere to the development schedule listed in amended § 12.a.; (2) that CCI forfeited its rights to open Improv clubs and its use of the Improv marks license in connection with any clubs not open or under construction as of October 15, 2002; (3) that Improv West could open or license to third parties new Improv clubs; (4) that § 9.j. of the Trademark Agreement was "a valid and enforceable in-term covenant not to compete" and remained valid "for the remaining term of the Agreement"7; (5) that CCI and its "Affiliates"8 were enjoined from opening or operating any other comedy clubs other than those open or under construction as of October 15, 2002 for the duration of the Trademark Agreement; (6) that neither CCI nor its Affiliates could change the name on any of its current clubs; and (7) that Improv West was entitled to attorneys fees and costs. On April 14, 2005, the district court confirmed the. Partial Award. CCI, timely appealed, tendering to us the issues addressed in this opinion.9
CCI first argues that the district court erred when it issued its order compelling the parties to arbitrate. Improv West in turn contends that we lack jurisdiction over this issue because CCI's appeal of the district court's order compelling arbitration is untimely.
The district court's order compelling the parties to arbitrate dismissed CCI's claims when it sent the parties to arbitration. Because the district court's order dismissed CCI's claims, it is a final order. See Green Tree Fin. Corp. v. Randolph, 531 U.S. 79, 86, 121 S.Ct. 513, 148 L.Ed.2d 373 (2000) (); see also 9 U.S.C. § 16(a)(3) (2006) (); 9 U.S.C. § 16(a)(3) prac. cmt. (instructing that subdivision (a)(3) makes appealable a district court's determination compelling arbitration that is a final decision); Bushley v. Credit Suisse First Boston, 360 F.3d 1149, 1153 n. 1 (9th Cir.2004) ().
28 U.S.C. § 2107(a) and Federal Rule of Appellate Procedure 4(a)(1) require that a notice of appeal be filed in a civil case "within 30 days after the judgment or order appealed from is entered." Fed. R.App. P. 4(a)(1)(A). Because the district court did not enter judgment on the order to compel arbitration, CCI had 180 days to appeal the order. See Fed. R.App. P. 4(a)(7)(A)(ii); see also Bowles v. Russell, ___ U.S. ___, 127 S.Ct. 2360, 2363, 168 L.Ed.2d 96 (2007) ().
CCI filed its first notice of appeal of the district court's order compelling arbitration on ...
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Comedy Club, Inc. v. Improv West Associates
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