Edward H. Bohlin Co., Inc. v. Banning Co., Inc., 92-2924
| Decision Date | 10 November 1993 |
| Docket Number | No. 92-2924,92-2924 |
| Parties | EDWARD H. BOHLIN CO., INC., Plaintiff-Appellant, v. The BANNING CO., INC., William C. Reynolds, John T. Reynolds, Sr., Edward H. Bohlin Co., Inc., Lillian Pinkerton, Walter Danielson, Gene Autry, and Jo Anne Hale, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Rob Percy Todd, Houston, TX, for plaintiff-appellant.
Kenneth R. Barrett, Catherine C. Jobe, Akin, Gump, Hauer & Feld, Houston, TX, for defendants-appellees.
Appeal from the United States District Court for the Southern District of Texas.
Before JOHNSON, WIENER, and DeMOSS, Circuit Judges.
Plaintiff-Appellant Edward H. Bohlin, Co., Inc. (Texas Bohlin) appeals the district court's denial of Texas Bohlin's Motion for Reconsideration and Alternately Motion for Relief from Judgment (Motion for Reconsideration), urging that the district court prematurely dismissed Defendants-Appellees The Banning Co., Inc., Edward H. Bohlin Co., Inc. (California Bohlin), 1 and two individual defendants (hereafter collectively, Defendants) for lack of in personam jurisdiction. The district court, Texas Bohlin contends, led it to believe that the sixty days allotted by the court for the parties to conduct discovery would pass before any ruling would be made on Defendants' Motion to Dismiss. Texas Bohlin complains that the district court's grant of Defendants' Motion to Dismiss before the sixty days had elapsed deprived Texas Bohlin of the opportunity to respond to the motion. Based on our determination that the district court did not abuse its discretion in denying Texas Bohlin's Motion for Reconsideration, we affirm.
In state court, Texas Bohlin sued California Bohlin, The Banning Company, Inc., and six individuals, seeking relief for copyright infringement under 17 U.S.C. Sec. 501 and under state common law causes of action. The dispute centered around the right to use unregistered trademarks relating to the Bohlin company name. Four of the six individual defendants were never served with process. They did not participate in Texas Bohlin's lawsuit and thus are not parties to this appeal.
Defendants removed to federal court on the basis of diversity. On August 17, 1992, Defendants filed a Motion to Dismiss [for lack of personal jurisdiction], or, Alternatively to Transfer. That motion (the subject motion) was hand-served on Texas Bohlin in open court immediately before commencement of a hearing on an unrelated matter, Texas Bohlin's application for a temporary restraining order (TRO hearing). At the TRO hearing, the district court denied Texas Bohlin's TRO application and stated it would allow 60 days of discovery before it would decide Texas Bohlin's entitlement to an injunction. The docket control order, entered eight days after the TRO hearing, in fact set discovery to be completed more than 90 days later.
Texas Bohlin asserts that it construed the judge's statements at the TRO hearing to mean that the district court would not rule on either motion--the motion for injunctive relief or the subject motion--until the 60 days for discovery passed. As a result, Texas Bohlin states, it failed to file a response to the subject motion within the twenty days required by local rules for the Southern District of Texas:
Submission. Opposed motions will be submitted to the judge twenty days from filing without notice from the clerk and without appearance by counsel. 2
Responses to motions. Failure to respond will be taken as a representation of no opposition. Responses to motions:
1. Must be filed by the submission day [20 days from filing pursuant to Rule 6 D];
2. Must be written.... 3
Texas Bohlin seeks to excuse its failure by insisting that the district court had suspended local rules governing timing of responses to motions. Texas Bohlin also contends that at the TRO hearing the district court ordered Defendants to re-serve the subject motion and that the subject motion was argued and denied.
Defendants did not re-serve their original motion to dismiss. Ten days after the TRO hearing, however, they supplemented the subject motion with additional supporting affidavits, which were served on Texas Bohlin. On or about that same day Texas Bohlin served California Bohlin with written interrogatories. Approximately one month later, after the time for response to the subject motion had passed and shortly before that motion was granted by the court, Defendants responded to Texas Bohlin's discovery request. They did so with a Motion to Quash Interrogatories and for Protective Order, asserting that California Bohlin had not yet been served with process and that the subject motion was pending; which motion, if granted, would render any discovery unnecessary.
Forty-six days after the TRO hearing, the court granted the subject motion and dismissed Defendants for lack of personal jurisdiction. Under Rule 6 E of the Southern District of Texas, failure to respond to a motion is treated as a statement of no opposition. 4 The district court justified its dismissal order on (1) Texas Bohlin's failure to respond to the subject motion in a timely manner under the local rules and (2) the complete lack of record evidence of the court's personal jurisdiction over Defendants.
Within ten days, Texas Bohlin filed a Motion for Reconsideration and Alternately Motion for Relief from Judgment (Motion for Reconsideration). Texas Bohlin asserted that it had not responded to the subject motion because it was not yet required to respond: first, the sixty-day period established by the district court to conduct discovery had not elapsed; and second, Defendants had not re-served the subject motion. Texas Bohlin did not present any evidence of Defendants' amenability to jurisdiction, but asserted that it was in the process of discovering jurisdictional facts. When Texas Bohlin filed the Motion for Reconsideration, it also filed both a response to Defendants' Motion to Quash Interrogatories and for Protective Order and a motion to compel discovery. Defendants did not respond in federal court to Texas Bohlin's Motion for Reconsideration. Rather, Defendants inadvertently filed a response in the state court from which the case had been removed. Only after the district court's decision on Texas Bohlin's Motion for Reconsideration did Defendants file their response in federal court. The Motion for Reconsideration was denied and Texas Bohlin appeals its denial.
Texas Bohlin's Motion for Reconsideration is both a Rule 59(e) motion to alter or amend a judgment and a Rule 60(b) motion for relief from judgment. A motion for reconsideration filed within ten days of judgment is treated as a motion to alter or amend under Rule 59(e). 5 Under Rule 60(b), the court may relieve a party from final judgment on the basis of "(1) mistake, inadvertence, surprise, or excusable neglect; ... or (6) any other reason justifying relief from the operation of the judgment." We review the denial of either type motion under an abuse of discretion standard. 6 Under this standard, the court's decision need only be reasonable. 7
Texas Bohlin contends--and Defendants deny--that (1) Defendants were ordered to Moreover, at the time of the TRO hearing, a company called Regame was involved in a receivership proceeding. Regame, prior to being placed in receivership, had purportedly sold the right to use the Bohlin company name to Texas Bohlin. Thus the question of who had the right to use the company name could potentially have been decided in the receivership proceeding. That in turn could make appropriate the filing of a "motion to dismiss" 8 by Texas Bohlin on collateral estoppel grounds in the instant case. Additionally, the court--without naming a moving party--referred to another, different motion to dismiss, vaguely stating that dismissal may be appropriate if there is no cause of action.
re-serve the motion to dismiss, (2) the court had considered and denied the motion to dismiss at the TRO hearing, and (3) the court ruled that disposition of all motions would be delayed until the 60-day discovery period had elapsed. The dispute over these facts may be attributed in part to the existence of some confusion at the TRO hearing. The confusion initially stemmed from the fact that both the plaintiff and one of the defendants were named Edward H. Bohlin Co., Inc. Given the shared name, the court could only distinguish between these two corporations by their states of incorporation. Also confusing were the court's imprecise references to possible future motions to dismiss; in truth the court was referring not to Defendants as the potential movants but to Texas Bohlin.
Texas Bohlin cannot prevail on the disputes of any of these facts. First, the district court never stated that it would delay ruling on the subject motion until Defendants re-served it, and never ordered Defendants to re-serve the motion. During the TRO hearing, Defendants' attorney informed the court that Defendants had just filed a Motion to Dismiss--the subject motion--on grounds of lack of personal jurisdiction, and added that he did not know whether the motion had yet made it into the file. The court responded,
It has not. It has not. Certainly, service has not been effectuated. I suppose you're going to have to do that.
At most, the court's statements may be construed to order service, not re-service. The court was clearly unaware that the subject motion had already been served on Texas Bohlin by hand delivery to counsel. Both Texas Bohlin and Defendants were well aware that the motion had already been served. The court's comments do not render the prior service ineffective. Contrary to Texas Bohlin's construction of this statement by the court, it did not order re-service of the motion.
Second, Texas Bohlin's contention that Defendants had urged the subject motion...
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