Two-Way Media LLC v. AT & T, Inc.

Citation782 F.3d 1311,113 U.S.P.Q.2d 1147
Decision Date19 March 2015
Docket NumberNo. 2014–1302.,2014–1302.
PartiesTWO–WAY MEDIA LLC, Plaintiff–Appellee v. AT & T, Inc., AT & T Corp., Defendants AT & T Operations, Inc., AT & T Services, Inc., SBC Internet Services, Inc., Southwestern Bell Telephone Company, Defendants–Appellants.
CourtUnited States Courts of Appeals. United States Court of Appeals for the Federal Circuit

Leslie V. Payne, Heim, Payne & Chorush, LLP, Houston, TX, argued for plaintiff-appellee. Also represented by Michael F. Heim, Micah John Howe, Nathan J. Davis ; Max Lalon Tribble, Jr., Susman Godfrey L.L.P., Houston, TX, Rachel S. Black, Ian B. Crosby, Parker C. Folse, III, Seattle, WA.Carter Glasgow Phillips, Sidley Austin LLP, Washington, DC, argued for defendants-appellants. Also represented by Constantine L. Trela, Jr., Richard Alan Cederoth, Robert N. Hochman, Nathaniel C. Love, Chicago, IL.

Before DYK, O'MALLEY, and WALLACH, Circuit Judges.

Opinion

Opinion for the court filed by Circuit Judge O'MALLEY.

Dissenting opinion filed by Circuit Judge DYK.

O'MALLEY, Circuit Judge.

Two–Way Media LLC (TWM) brought this patent infringement suit against AT & T, Inc.; AT & T Corp.; AT & T Operations, Inc.; AT & T Services, Inc.; SBC Internet Services, Inc.; and Southwestern Bell Telephone Co. (collectively, AT & T). The case proceeded to a jury trial in the United States District Court for the Western District of Texas, where the jury found that AT & T infringed the asserted claims of the patents at issue and awarded damages. The district court entered final judgment consistent with the jury's verdict on October 7, 2013. The district court thereafter denied all of AT & T's post-trial motions for judgment as a matter of law (“JMOL”). Upon docketing those rulings, the time for AT & T to file an appeal began to run. AT & T, however, failed to file a timely notice of appeal. Because we conclude that the district court did not abuse its discretion or clearly err in refusing to extend or reopen the appeal period, we affirm.

I. Background

TWM filed suit in the United States District Court for the Southern District of Texas on April 11, 2008, alleging, inter alia, infringement of certain claims of U.S. Patent Nos. 5,778,187 and 5,983,005. In June 2009, the Southern District of Texas transferred the case to the United States District Court for the Western District of Texas. The case proceeded to a jury trial, resulting in a verdict of infringement and a damages award to TWM. Final judgment reflecting the jury's verdict was entered on October 7, 2013.

On October 4, 2013, AT & T timely filed four motions for renewed JMOL or a new trial, regarding non-infringement, invalidity, and damages. These filings stayed the running of the time within which AT & T was required to file any notice of appeal from the final judgment. Because three of the four JMOL motions were confidential, AT & T moved to file those under seal. On November 22, 2013, the court denied all of AT & T's JMOL motions and granted TWM's request for costs, entering judgment against AT & T on all pending claims. When the court initially docketed the denials of AT & T's motions, it labeled the three orders addressing the confidential motions as orders granting the motions to seal, not indicating that the same orders denied the relief sought in the underlying motions. The parties (through counsel) received notice of electronic filings (“NEFs”) for each of those orders labeled “ORDER GRANTING [ ] Motion For Leave to File Sealed Document.” Joint Appendix (“J.A.”) 13804. The underlying orders, which could be accessed by clicking on the hyperlink in the NEFs, clearly denied the merits of AT & T's JMOL motions, however. At the same time, the court docketed its order denying the fourth, non-confidential JMOL. And, the court docketed its order on TWM's Bill of Costs. Both of these were included and properly identified in the November 22 NEFs to the parties. On November 25, the court updated the description of the orders on the docket, but did not send new NEFs to the parties.

On January 15, 2014, after the appeal period had expired, AT & T asserts that it first discovered that the November orders actually denied all of its post-trial motions. The next day, AT & T filed a motion to extend or reopen the appeal period pursuant to Federal Rules of Appellate Procedure 4(a)(5) and (6). On February 6, 2014, the district court denied AT & T's motion.

A denial of a motion under Rule 4(a) is a final appealable order. See 28 U.S.C. § 1291 ; see also Eltayib v. United States, 294 F.3d 397, 399 (2d Cir.2002). Because this is a patent infringement case, we have jurisdiction under 28 U.S.C. § 1295(a)(1).

II. Discussion

Since a ruling on a motion for relief under Rule 4(a) is an issue not unique to patent law, we apply the law of the regional circuit—here, the Fifth Circuit. See Amgen Inc. v. Hoechst Marion Roussel, Inc., 25 Fed.Appx. 923, 924 (Fed.Cir.2001).1 Under Fifth Circuit law, we review the district court's ruling on a motion for relief under Rule 4(a)(5) and (6) for abuse of discretion. Stotter v. Univ. of Tex., 508 F.3d 812, 820 (5th Cir.2007) (reviewing a motion for relief under Rule 4(a)(5) for abuse of discretion); In re Jones, 970 F.2d 36, 39 (5th Cir.1992) (reviewing a motion for relief under Rule 4(a)(6) for abuse of discretion).

Rule 4(a) states in relevant part:

(5) Motion for Extension of Time.
(A) The district court may extend the time to file a notice of appeal if:
(i) a party so moves no later than 30 days after the time prescribed by this Rule 4(a) expires; and
(ii) regardless of whether its motion is filed before or during the 30 days after the time prescribed by this Rule 4(a) expires, that party shows excusable neglect or good cause.
....
(6) Reopening the Time to File an Appeal. The district court may reopen the time to file an appeal for a period of 14 days after the date when its order to reopen is entered, but only if all the following conditions are satisfied:
(A) the court finds that the moving party did not receive notice under Federal Rule of Civil Procedure 77(d) of the entry of judgment or order sought to be appealed within 21 days after entry;
(B) the motion is filed within 180 days after the judgment or order is entered or within 14 days after the moving party receives notice under Federal Rule of Civil Procedure 77(d) of the entry, whichever is earlier; and
(C) the court finds that no party would be prejudiced.

Fed. R.App. P. 4(a).

In sum, to qualify for an extension of the appeal period, the moving party must show “excusable neglect or good cause.” Fed. R.App. P. 4(a)(5). A court may reopen the appeal period, on the other hand, if, inter alia, “the court finds that the moving part did not receive notice of the entry of the judgment or order at issue. Fed. R.App. P. 4(a)(6) (emphasis added). Both decisions are committed to the trial court's discretion. The question, accordingly, is not whether any panel member—or even all of them—would have granted AT & T's motion under either Rule 4(a)(5) or (6) if acting as district court judges, but whether, under the circumstances, this district court abused its discretion when it chose not to do so.

a. Extension of the Appeal Period Pursuant to Rule 4(a)(5)

In considering AT & T's motion under Rule 4(a)(5), the court found that the AT & T had failed to show good cause or excusable neglect. Although the NEFs communicated an arguably incomplete description of the orders, the district court noted that even a total lack of notice would not be enough, standing alone, to justify extending the time for filing an appeal. The court concluded that it is the responsibility of every attorney to read the substance of each order received from the court and that it is not sufficient to rely on the email notifications received from the electronic filing system. The court explained that the NEFs were sent to 18 attorneys at the two firms representing AT & T. The court further noted that assistants at those firms actually downloaded copies of all of the orders onto the firms' internal systems. Finally, the court pointed to the fact that, on that same day, the court also issued orders denying the unsealed JMOL motion and entering a bill of costs—both of which produced accurately labeled NEFs. The district court therefore refused to extend the appeal period under Rule 4(a)(5).

AT & T argues that its delay should be excused because it received incomplete NEFs and the district court did not reissue new NEFs when it corrected the docket entries. In other words, AT & T argues that, because the initial NEF did not fully describe what the order entailed, the court should have found that the “excusable neglect or good cause” required under Rule 4(a)(5)(A)(ii) had been established. We disagree.

As the district court correctly noted, even a complete lack of notice would not qualify as excusable neglect under Rule 4(a)(5), without some additional showing. To allow Rule 4(a)(5) to be triggered so easily would render Federal Rule of Civil Procedure 77(d)(2) a nullity. Rule 77(d)(2) expressly provides that [l]ack of notice of the entry does not affect the time for appeal or relieve—or authorize the court to relieve —a party for failing to appeal within the time allowed, except as allowed by Federal Rule of Appellate Procedure (4)(a).” (emphasis added). Because AT & T would not be entitled to relief even if it had received no NEFs notifying it of the court's order, the district court was correct to require some additional evidence of excusable neglect or good cause.See Wilson v. Atwood Grp., 725 F.2d 255, 257 (5th Cir.1984) (en banc) (“The rule is strict, but its meaning and purpose are plain. We have consistently held that the simple failure of the clerk to mail notice of entry of judgment, without more, does not permit relief to a party who has failed to appeal within the prescribed time.”); see also Avolio v. Cnty. of Suffolk, 29 F.3d 50, 52 (2d Cir.1994) (Plaintiffs could not qualify for this kind of extension [under Rule 4(a)(5) ] because...

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