Gilda Marx, Inc. v. Wildwood Exercise, Inc.

• Citation: 39 USPQ2d 1043,85 F.3d 675
• Decision Date: 11 June 1996
• Docket Number: Nos. 88-7237,95-7267 and 95-7269,s. 88-7237
• Parties: , 64 USLW 2803, 39 U.S.P.Q.2d 1043 GILDA MARX, INCORPORATED; Body Design by Gilda, Inc.; Body Design by Gilda Studios, Inc., Appellants/Cross-Appellees, v. WILDWOOD EXERCISE, INC., et al., Appellees/Cross-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

Page 675

85 F.3d 675

318 U.S.App.D.C. 109, 64 USLW 2803,

39 U.S.P.Q.2d 1043

GILDA MARX, INCORPORATED; Body Design by Gilda, Inc.; Body

Design by Gilda Studios, Inc., Appellants/Cross-Appellees, v. WILDWOOD EXERCISE, INC., et al., Appellees/Cross-Appellants.

Nos. 88-7237, 95-7267 and 95-7269.

United States Court of Appeals, District of Columbia Circuit.

June 11, 1996.

Appeal from the United States District Court for the District of Columbia (No. 86cv01171).

Herbert Cohen, Washington, DC, Wigman, Cohen, Leitner & Myers, for appellants.

Burton A. Schwalb, Washington, DC, Schwalb, Donnenfeld, Bray & Silbert, for appellees.

Before WALD, WILLIAMS, and ROGERS, Circuit Judges.

Opinion for the Court filed PER CURIAM.

On Motions to Consolidate and to Dismiss

PER CURIAM:

The district court entered judgment for the defendants and ruled that they were entitled to reimbursement of attorney's fees they expended in defending against some, but not all, of plaintiffs' claims. The district court has not yet fixed the amount of the fee award. The plaintiffs appealed from the adverse judgment and from the finding of liability for attorney's fees, while the defendants cross-appealed from the limitation placed on the fee award. Both parties now move to consolidate the appeal and the cross-appeal. Because the district court's attorney's fee order is not final insofar as the amount of the award has not been determined, we decline to exercise pendent jurisdiction over the appeal and cross-appeal from that portion of the order.

I.

The parties to this ten-year-old dispute are Body Design by Gilda, Inc. ("Gilda Marx") and Wildwood Exercise, Inc. ("Wildwood"), two organizations formerly operating exercise studios in the Washington, D.C. area. Gilda Marx sued Wildwood for trademark infringement, unfair competition, deceptive trade practices, violations of employment contracts, and violations of the Racketeer Influenced and Corrupt Organizations ("RICO") provisions of the Organized Crime Control Act of 1970, 18 U.S.C. §§ 1961-1968 (1982). The district court entered judgment for Wildwood in 1988. Gilda Marx, Inc. v. Wildwood Exercise, Inc., No. 86-1171 (D.D.C. filed Aug. 26, 1988) (mem.). Gilda Marx filed Appeal No. 88-7237 from that judgment.

Shortly thereafter, Gilda Marx filed a motion to amend the judgment pursuant to Federal Rule of Civil Procedure 52(b), and Wildwood filed a motion for attorney's fees pursuant to Federal Rule of Civil Procedure 59(e). This court held the appeal in abeyance pending the district court's disposition of the post-judgment motions. Gilda Marx, Inc. v. Wildwood Exercise, Inc., No. 88-7237 (D.C.Cir. filed Dec. 20, 1988) (order). On September 29, 1995, the district court denied Gilda Marx's Rule 52(b) motion and granted, in part, Wildwood's motion for attorney's fees "as to attorney time expended in defending against the RICO claims." Gilda Marx, Inc. v. Wildwood Exercise, Inc., No. 86-1171 (D.D.C. filed Sept. 29, 1995). As permitted by Local Rule 215(b), ¹ the court deferred determining the amount of attorney's fees "pending the outcome of the appeal on the RICO claims."

Gilda Marx noted an appeal from the September 29, 1995, order, No. 95-7267, and repeated its request for review of the original 1988 judgment. In its statement of issues on appeal in No. 95-7267, Gilda Marx also disclosed its intention to challenge the 1995 finding that it was liable for attorney's fees. Wildwood filed a cross-appeal from the district court's limitation of the recovery of attorney's fees to those expended on the RICO claims. Appeal No. 95-7269. Pending now before this court are two motions concerning these three appeals: Gilda Marx's motion to consolidate the appeals and hold the consolidated appeal in abeyance until the district court determines the amount of attorney's fees, and Wildwood's motion to dismiss Gilda Marx's 1988 appeal and consolidate the 1995 appeal of Gilda Marx with Wildwood's cross- appeal. Although both parties favor consolidation, Wildwood opposes Gilda Marx's request to hold the consolidated appeal in abeyance.

II.

When certain post-judgment motions are pending in the district court, including motions to amend the judgment pursuant to Rule 52(b), "the time for appeal [of the judgment] for all parties runs from the entry of the order disposing of the last such motion outstanding." FED.R.APP.P. 4(a)(4). Therefore, Gilda Marx's notice of appeal filed on October 12, 1995, is a timely appeal from the district court's 1988 judgment, as well as from the September 29, 1995, denial of the Rule 52(b) motion. Moreover, Gilda Marx's 1995 appeal, No. 95-7267, subsumes the 1988 appeal, No. 88-7237. Consequently, we grant Wildwood's motion in part by dismissing No. 88-7237.

Before deciding whether to consolidate the two remaining appeals, we first consider whether we have jurisdiction over either of them. This court generally has statutory jurisdiction of appeals from "final decisions" of the district court. 28 U.S.C. § 1291 (1994). The 1988 judgment and 1995 denial of Gilda Marx's Rule 52(b) motion constitute an appealable "final decision" on the merits, even though Wildwood's fee motion is still outstanding in the district court. Budinich v. Becton Dickinson & Co., 486 U.S. 196, 202-03, 108 S.Ct. 1717, 1721-22, 100 L.Ed.2d 178 (1988). We thus have jurisdiction over No. 95-7267, at least insofar as it challenges the 1988 judgment and the 1995 Rule 52(b) denial.

Jurisdiction over Wildwood's cross-appeal is less clear. Although the district court found Gilda Marx liable for attorney's fees, the amount of the award has not been established. In keeping with the principle that a finding of liability is not final until the court has specified the relief to be awarded, Liberty Mut. Ins. Co. v. Wetzel, 424 U.S. 737, 96 S.Ct. 1202, 47 L.Ed.2d 435 (1976), every circuit to address the question has held that an order finding liability for attorney's fees is not final until the amount has been determined. Century 21 Real Estate Corp. v. Century 21 Real Estate, Inc., 929 F.2d 827, 830 (1st Cir.1991); Echols v. Parker, 909 F.2d 795, 798 (5th Cir.1990); Phelps v. Washburn Univ. of Topeka, 807 F.2d 153, 154 (10th Cir.1986) (per curiam); Becton Dickinson & Co. v. District 65, United Auto., Aerospace and Agric. Implement Workers of Amer., 799 F.2d 57, 61 (3d Cir.1986); Morgan v. Union Metal Mfg., 757 F.2d 792, 795 (6th Cir.1985); see also Crowley v. Shultz, 704 F.2d 1269, 1272 (D.C.Cir.1983). We would therefore dismiss No. 95-7269 for lack of jurisdiction if it were the only appeal before us.

The question, then, is whether to assume jurisdiction over Wildwood's cross-appeal (No. 95-7269) by consolidating it with Gilda Marx's 1995 appeal (No. 95-7267), over which, at least in part, our jurisdiction is unquestionable. Our sister circuits are split on the question whether we even have the power to do so. Three circuits have held or suggested that an otherwise unappealable fee liability order can be appended to the appeal of a final judgment on the merits. Andrews v. Employees' Retirement Plan of First Ala. Bancshares, Inc., 938 F.2d 1245, 1247-48 (11th Cir.1991); Bittner v. Sadoff & Rudoy Ind., 728 F.2d 820, 826-27 (7th Cir.1984); Morgan, 757 F.2d at 795-96 (6th Cir.) (dicta). On the other side, two circuits have flatly rejected that position, Southern Travel Club v. Carnival Air Lines, Inc., 986 F.2d 125, 131 (5th Cir.1993); Phelps, 807 F.2d at 155 (10th Cir.), and another has at least expressed skepticism toward it. Becton Dickinson, 799 F.2d at 61-62 (3d Cir.); but see Pennsylvania v. Flaherty, 983 F.2d 1267, 1276-77 (3d Cir.1993). The question is undecided in this circuit. ²

A circuit court exercises pendent jurisdiction when, in the course of reviewing an order from which an appeal is within its jurisdiction, it hears an appeal from another order that, while part of the same case or controversy, would not otherwise be within its statutory jurisdiction. Cf. United Mine Workers of Amer. v. Gibbs, 383 U.S. 715, 721-29, 86 S.Ct. 1130, 1136-41, 16 L.Ed.2d 218 (1966). All of the above-cited authorities on both sides of the question presented here predate Swint v. Chambers County Comm'n, --- U.S. ----, 115 S.Ct. 1203, 131 L.Ed.2d 60 (1995), in which the Supreme Court took a relatively restrictive position on the circuit courts' power to exercise pendent appellate jurisdiction. Nonetheless, Swint left open the questions "whether or when it may be proper for a court of appeals with jurisdiction over one ruling to review, conjunctively, related rulings that are not themselves appealable." Id. at ----, 115 S.Ct. at 1212. The Court has on a number of occasions approved the exercise of pendent appellate jurisdiction. E.g., Thornburgh v. American College of Obstetricians and Gynecologists, 476 U.S. 747, 755-57, 106 S.Ct. 2169, 2175-77, 90 L.Ed.2d 779 (1986), overruled in part on other grounds, Planned Parenthood of S.E. Penn. v. Casey, 505 U.S. 833, 882, 112 S.Ct. 2791, 2823, 120 L.Ed.2d 674 (1992) (plurality); Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 172, 94 S.Ct. 2140, 2150, 40 L.Ed.2d 732 (1974); Deckert v. Independence Shares Corp., 311 U.S. 282, 286-87, 61 S.Ct. 229, 232-33, 85 L.Ed. 189 (1940). Moreover, while it is not clear from the opinion in Swint which, if any, of these facts were dispositive, that case involved a number of factors militating against pendent appellate jurisdiction that are not present here: the pendent appeal involved a separate cause of action from the one giving rise to the appealable order, rather than an ancillary matter; the appealable order was itself interlocutory, suggesting a greater threat to orderly procedure when the appeals court broadly intervened before the district court had an opportunity to render a final judgment on any of the claims in the case; and the court of appeals complicated the appeal by bringing in "pendent parties," i.e., parties who were not involved in the...