Hutchinson v. Mary Pfeil

• Decision Date: 04 April 2000
• Docket Number: No. 98-5260,98-5260
• Citation: 211 F.3d 515
• Parties: (10th Cir. 2000) THOMAS R. HUTCHINSON, Plaintiff-Appellant, v. MARY JOAN PFEIL; ART SERVICES INTERNATIONAL, INC.; WILLIAM H. GERDTS; DAVID BERNARD DEARINGER; SOUTH CHINA PRINTING COMPANY; RICHARD B. PFEIL; SONA JOHNSTON, Defendants-Appellees
• Court: U.S. Court of Appeals — Tenth Circuit

Page 515

211 F.3d 515 (10th Cir. 2000)

THOMAS R. HUTCHINSON, Plaintiff-Appellant, v. MARY JOAN PFEIL; ART SERVICES INTERNATIONAL, INC.; WILLIAM H. GERDTS; DAVID BERNARD DEARINGER; SOUTH CHINA PRINTING COMPANY; RICHARD B. PFEIL; SONA JOHNSTON, Defendants-Appellees.

No. 98-5260

UNITED STATES COURT OF APPEALS TENTH CIRCUIT

April 4, 2000

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OKLAHOMA (D.C. No. 94-CV-711-E)

[Copyrighted Material Omitted]

Submitted on the briefs:

Glenn R. Beustring, Joan Godlove, and Todd Alexander, Tulsa, Oklahoma, for Plaintiffs-Appellants.

Lewis N. Carter of Doerner, Saunders, Daniel & Anderson, L.L.P., Tulsa, Oklahoma, for Defendants-Appellees.

Before EBEL, LUCERO, and MURPHY, Circuit Judges.

MURPHY, Circuit Judge.

Plaintiff Thomas R. Hutchinson appeals¹ from the dismissal of his suit under 43(a) of the Lanham Act, 15 U.S.C. 1125(a), for lack of standing. He also challenges certain procedural rulings issued in the course of the proceedings. Joining in his notice of appeal are Hope Cobb, whose motion to intervene in district court was denied, and several individuals whom Mr. Hutchinson proposed to add as plaintiffs when he unsuccessfully moved to amend his pleadings. For reasons stated below, we dismiss the appeals of Ms. Cobb and those proposed plaintiffs, deny their joint motion to intervene in the Hutchinson appeal, and affirm all of the rulings challenged by Mr. Hutchinson.

Cobb's Appeal from Denial of Intervention

The district court denied Hope Cobb's motion to intervene on February 27, 1998. She did not attempt to appeal that order until she joined Mr. Hutchinson's notice of appeal from the final judgment entered over eight months later.

"An order denying intervention is final and subject to immediate review if it prevents the applicant from becoming a party to an action." Coalition of Ariz./N.M. Counties for Stable Econ. Growth v. Department of the Interior, 100 F.3d 837, 839 (10th Cir. 1996). This is "because denial of intervention precludes the proposed intervenor's ability to appeal the later judgment (and at that time to challenge the earlier denial of intervention)." B.H. ex rel. Pierce v. Murphy, 984 F.2d 196, 199 (7th Cir. 1993). Thus, an appeal from the denial of intervention "cannot be kept in reserve; it must be taken within thirty days of the entry of the order, or not at all." Credit Francais Int'l, S.A. v. Bio-Vita, Ltd., 78 F.3d 698, 703 (1st Cir. 1996); see Hunter v. Department of the Air Force Agency, 846 F.2d 1314, 1316-17 (11th Cir. 1988) (distinguishing final order denying intervention from appealable interlocutory orders for which immediate review in lieu of appeal from final judgment is optional); see, e.g., B.H. ex rel. Pierce, 984 F.2d at 199; United States EPA v. City of Green Forest, 921 F.2d 1394, 1401 (8th Cir. 1990); Marks v. U.S. West Direct, No. 98-1043, 1998 WL 856139, at **1 (10th Cir. Dec. 11, 1998) (unpublished), cert. denied, 119 S. Ct. 1757 (1999). Ms. Cobb's appeal is therefore untimely and must be dismissed. See Budinich v. Becton Dickinson & Co., 486 U.S. 196, 203 (1988) ("the taking of an appeal within the prescribed time is mandatory and jurisdictional").

Proposed Plaintiffs' Appeal

After the case had been pending in district court for some time, Mr. Hutchinson filed a motion to amend his pleadings to, among other things, add several new plaintiffs under Fed. R. Civ. P. 21. The proposed plaintiffs did not themselves invoke the power of the court by, for example, moving to intervene under Fed. R. Civ. P. 24. Thus, they are not parties to the action nor have they affirmatively sought and been denied such status.

"A nonparty does not have standing to appeal in the absence of most extraordinary circumstances." Coffey v. Whirlpool Corp., 591 F.2d 618, 619 (10th Cir. 1979) (insurer lacked standing to appeal where district court denied insured's motion to vacate dismissal to permit substitution of insurer as plaintiff). Such circumstances are clearly not present here. Indeed, two distinct considerations undercut the proposed plaintiffs' appellate standing. The first is their indirect, passive relationship to the proceedings conducted in district court. To paraphrase an apt, albeit non-precedential, statement of the Second Circuit, expressly relying on our Coffey decision in a similar case: the plaintiff--not the proposed plaintiffs--moved to amend his complaint, and he--not they--is the proper party to appeal the denial of that motion. See Kahn v. Chase Manhattan Bank, N.A., Nos. 97-7213, 97-7233, 1997 WL 734139, at **2 (2d Cir. Nov. 25, 1997) (unpublished). The second consideration relates to the proposed plaintiffs' lack of a substantive interest in the outcome. Because the action was dismissed based on Mr. Hutchinson's lack of standing and thus without any ruling on the merits, the proposed plaintiffs are in the same position as the non-party denied appellate standing in Coffey: "no requirement is imposed upon [the proposed plaintiffs] to do anything" to preserve their claims; the dismissal by the court was without prejudice to their interests. Coffey, 591 F.2d at 619.

Appellate Intervention

Ms. Cobb and the proposed plaintiffs also moved to intervene on appeal, in case their joinder in the notice of appeal filed by Mr. Hutchinson was ineffective. We deny the motion for reasons peculiar to each movant. As for Ms. Cobb, the motion is, in effect, an attempt to obtain appellate review lost by her failure to timely appeal the denial of her motion to intervene in district court. Appellate intervention is not a means to escape the consequences of noncompliance with traditional rules of appellate jurisdiction and procedure. See, e.g., United States v. Dorfman, 690 F.2d 1217, 1223 (7th Cir. 1982) (defendants who prematurely appealed suppression order "cannot circumvent the rule against . . . interlocutory appeal" by intervening in third-party appeal); United States v. Ahmad, 499 F.2d 851, 854 (3d Cir. 1974) (party who failed to file notice of appeal "cannot circumvent the requirements for taking an appeal in his own right by a later petition for intervention" in another's appeal).

The proposed plaintiffs lacked standing to obtain direct appellate review and, thus, do not seek intervention to excuse a failure to perfect a proper appeal. Their request, however, is undercut by a different omission. As noted above, they never moved to intervene in the district court. "'A court of appeals may, but only in an exceptional case for imperative reasons, permit intervention where none was sought in the district court.'" Hall v. Holder, 117 F.3d 1222, 1231 (11th Cir. 1997) (quoting McKenna v. Pan Am. Petroleum Corp., 303 F.2d 778, 779 (5th Cir. 1962)); see Bates v. Jones, 127 F.3d 870, 873 (9th Cir. 1997); Amalgamated Transit Union Int'l v. Donovan, 771 F.2d 1551, 1552 (D.C. Cir. 1985). Nothing stated in their conclusory motion or inherent in the surrounding circumstances suggests the requisite justification for the proposed plaintiffs' intervention on appeal.

Hutchinson's Standing to Sue

On summary judgment, the district court held that Mr. Hutchinson could not satisfy the requirements for standing under the Lanham Act set out by this court in Stanfield v. Osborne Industries, Inc., 52 F.3d 867 (10th Cir. 1995). On de novo review, see Wilson v. Glenwood Intermountain Properties, Inc., 98 F.3d 590, 593 (10th Cir. 1996), we reach the same conclusion. Further, we hold that the standing deficiencies implicate the limitations of Article III of the Constitution.

Plaintiffs bear the burden of proving standing with the manner and degree of evidence required at the particular stage of the litigation. In response to a summary judgment motion, the nonmovant must present specific facts by affidavit or other evidence, which will be taken as true for purposes of the motion. Summary judgment is then proper if there is no genuine issue of material fact so that the moving party is entitled to judgment as a matter of law.

Gilbert v. Shalala, 45 F.3d 1391, 1394 (10th Cir. 1995) (citations omitted); see Cache Valley Elec. Co. v. State of Utah Dep't of Transp., 149 F.3d 1119, 1124 (10th Cir. 1998) ("[a]t summary judgment, it is a plaintiff's burden to adduce evidence sufficient to establish necessary jurisdictional facts" and, thus, plaintiff "may not establish standing by merely hypothesizing"), cert. denied, 119 S. Ct. 1333 (1999).

Mr. Hutchinson is a descendant of nineteenth century American Impressionist artist Theodore Robinson, who painted a work owned by defendants Richard and Mary Joan Pfeil, entitled E.M.J. Betty.² Mr. Hutchinson contends that the Pfeils' painting is actually an unfinished version with a forged signature, and that he has an ownership interest in a finished "real" E.M.J. Betty, allegedly stolen after the artist died in 1896. The thrust of Mr. Hutchinson's Lanham Act claim is that by representing their painting as a finished version of the Robinson work in an exhibition catalogue, the Pfeils have "use[d] in commerce [a] . . . false designation of origin, false or misleading description of fact, or false or misleading representation of fact," in violation of 15 U.S.C. 1125(a)(1). The other defendants are the corporations which produced and printed the catalogue, and the art historians whose professional work was used for the E.M.J. Betty annotation therein.

"There are two distinct bases for liability under section 1125: (1) false representation in advertising concerning the qualities of goods (false advertising claims); and (2) false representations concerning the origin or endorsement of goods (false association or product infringement claims)." Stanfield, 52 F.3d at 873. Each requires an injury sufficient to confer standing, with the type of harm dependant on the focus of the claim. For a false advertising claim designed to prevent unfair competition, the plaintiff "must be a competitor of the...