United Artists Corp. v. La Cage Aux Folles, Inc.

• Citation: 771 F.2d 1265
• Decision Date: 17 September 1985
• Docket Number: No. 83-6234,83-6234
• Parties: UNITED ARTISTS CORP. & L.P.A.A., Plaintiffs, Marcello Danon, Plaintiff-Appellant, v. LA CAGE AUX FOLLES, INC., et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1265

771 F.2d 1265

2 Fed.R.Serv.3d 769

UNITED ARTISTS CORP. & L.P.A.A., Plaintiffs, Marcello Danon, Plaintiff-Appellant, v. LA CAGE AUX FOLLES, INC., et al., Defendants-Appellees.

No. 83-6234.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Dec. 5, 1984.

Decided Sept. 17, 1985.

Robert F. Marshall, Los Angeles, Cal., for plaintiff-appellant.

Barbara C. Fasiska, Clifford Schaffer, Stephen A. Lax, Los Angeles, Cal., for defendants-appellees.

Appeal from the United States District Court for the Central District of California.

Before WALLACE, BOOCHEVER and HALL, Circuit Judges.

CYNTHIA HOLCOMB HALL, Circuit Judge:

Danon appeals from the district court's dismissal of his action with prejudice pursuant to Rule 37(b)(2)(C), Fed.R.Civ.P., for failing to comply with a discovery order compelling answers to interrogatories from one of the defendants, La Cage Aux Folles, Inc. (La Cage). He also appeals from the district court's denial of his motion under Rule 60(b), Fed.R.Civ.P., for relief from that dismissal. We affirm.

I. FACTS.

Danon produced and owns rights in the motion pictures "La Cage Aux Folles" and "La Cage Aux Folles II." Both films depict a nightclub featuring female impersonators. This action arose in 1981 when defendant Paciocco opened a nightclub in Los Angeles known as "La Cage Aux Folles." The club's featured entertainment includes a floor show by female impersonators. Danon, along with two corporations not parties to this appeal, brought suit against Paciocco, La Cage and a subsequently dismissed individual, contending that they violated federal and state unfair competition, trademark, and copyright laws by copying the name, characters, and distinctive features of the films.

On February 3, 1983, La Cage served Danon with its first set of interrogatories. Responses were due on March 8. On that date, Danon's counsel sent a letter requesting an extension. Although the letter was received after responses were due, Danon was granted an extension until April 11.

Danon failed to respond by the extended due date, and on April 15, 1983, La Cage filed a motion to compel answers to interrogatories or, alternatively, "to dismiss the complaint." At the April 27 hearing, the motion to compel was granted and monetary sanctions were imposed against Danon. In addition, Danon's counsel was warned that Danon's action would be dismissed if answers were not in strict compliance with the court's order.

Danon paid the $2,000 fine levied by Judge Hill, and on May 4, responded to the interrogatories and produced requested documents. La Cage found deficiencies in the responses and brought a second motion, this time requesting the court "to dismiss with prejudice plaintiffs' complaint" or, alternatively, to compel further answers to interrogatories and further production of documents. At the May 31, 1983 hearing, the court dismissed Danon's action with prejudice. Danon then retained new counsel, and on June 29, 1983, filed both a request for extension of time to file a notice of appeal pursuant to Rule 4(a)(5), Fed.R.App.P., and a motion for reconsideration of and relief from the order of dismissal pursuant to Rule 60(b), Fed.R.Civ.P.

Due to a potential conflict of interest involving Danon's new counsel, the case was reassigned from Judge Hill to Judge Marshall. On June 29, the same day the request was filed, Judge Marshall granted a 60-day extension of time within which to file a notice of appeal. The extension was suggested by Judge Marshall because of conflicts in her schedule. On August 22, Judge Marshall denied the Rule 60(b) motion. The court entered the denial on August 29, 1983, and granted a 10-day extension for the filing of an appeal from the dismissal. On September 6, Danon appealed from Judge Hill's order of dismissal. On September 28, Danon appealed from Judge Marshall's denial of his Rule 60(b) motion.

II. TIMELINESS OF APPEAL.

La Cage did not raise the issue of whether Danon's notice of appeal from the Rule 37(b) dismissal was timely but we are required to consider this issue sua sponte. See Rodgers v. Watt, 722 F.2d 456, 457-58 (9th Cir.1983) (en banc). Timely filing requirements for appeals are ordinarily mandatory and jurisdictional. Id. However, the Supreme Court has established a limited exception so that "[u]nder certain unique circumstances, an appellate tribunal may have jurisdiction to hear an appeal that was not filed within the prescribed time limits." Hernandez-Rivera v. INS, 630 F.2d 1352, 1354 (9th Cir.1980) (Hernandez ). See Curacao Drydock Co. v. M/V Akritas, 710 F.2d 204, 206-07 (5th Cir.1983); 9 J. Moore, Moore's Federal Practice, 557p 204.02 n. 17 & 204.02 (2d ed. 1985).

A. "Unique Circumstances" Doctrine.

The "unique circumstances" doctrine was articulated by the Supreme Court in three decisions. See Wolfsohn v. Hankin, 376 U.S. 203, 84 S.Ct. 699, 11 L.Ed.2d 636 (1964) (per curiam); Thompson v. INS, 375 U.S. 384, 84 S.Ct. 397, 11 L.Ed.2d 404 (1964) (per curiam); Harris Truck Lines v. Cherry Meat Packers, Inc., 371 U.S. 215, 83 S.Ct. 283, 9 L.Ed.2d 261 (1962) (per curiam). Thompson and Wolfsohn are most relevant to the present case. In Thompson, the appellant filed motions for factual amendments and a new trial twelve days after entry of judgment mistakenly believing that the motions were timely filed. At a hearing two days later, the trial court declared that the motion for new trial had been made "in ample time." Thompson, 375 U.S. at 386, 84 S.Ct. at 398. In fact, the post-trial motions were untimely and therefore did not toll the running of the time for appeal. In reliance on the trial court's misstatement, however, the appellant believed the time for taking appeal had been tolled and he failed to file his notice of appeal within the applicable time limit from the entry of judgment. The Supreme Court nonetheless permitted the appeal to be filed after the disposition of the untimely motions and beyond the applicable appeal period because of the "unique circumstances" involving the appellant's reliance on the trial court's misstatement. Id. at 387, 84 S.Ct. at 399.

In Wolfsohn, four days after the district court granted summary judgment against appellant, appellant moved for an extension of time within which to file a motion for rehearing under Rule 59, Fed.R.Civ.P. Wolfsohn v. Hankin, 321 F.2d 393, 394 (D.C.Cir.1963) (per curiam). The district court overlooked Rule 6(b), Fed.R.Civ.P. (prohibiting extensions of time beyond the 10-day period of Rule 59(b)), and granted the extension. Id. Appellant filed the Rule 59 motion within the extension period. After the motion was denied, she filed a notice of appeal within thirty days. The appellate court dismissed the appeal after concluding that the 10-day time for filing a Rule 59 motion "may not be enlarged by the court." Id. Because no Rule 59 motion was filed within the 10-day period, the appellate court held that the time for filing the appeal was not tolled and that the time expired before appellant filed her notice of appeal. Id. The Supreme Court reversed citing Harris and Thompson. Wolfsohn, 376 U.S. at 203, 84 S.Ct. at 699.

Two circuits recently held the "unique circumstances" doctrine applicable to permit appeals that were otherwise untimely under Rule 4(a), Fed.R.App.P. See Willis v. Newsome, 747 F.2d 605, 606-07 (11th Cir.1984) (per curiam); Aviation Enterprises, Inc. v. Orr, 716 F.2d 1403, 1406 n. 25 (D.C.Cir.1983) (per curiam). The court in Willis succinctly summarized the appropriate circumstances for applying the "unique circumstances" doctrine:

Courts will permit an appellant to maintain an otherwise untimely appeal in unique circumstances in which the appellant reasonably and in good faith relied upon judicial action that indicated to the appellant that his assertion of his right to appeal would be timely, so long as the judicial action occurred prior to the expiration of the official time period such that the appellant could have given timely notice had he not been lulled into inactivity.

Willis, 747 F.2d at 606. At least three other circuits have expressed their willingness to apply the "unique circumstances" doctrine upon a sufficient showing of reasonable reliance. See Marane, Inc. v. McDonald's Corp., 755 F.2d 106, 111 n. 2 (7th Cir.1985) (doctrine inapplicable on facts); Myers v. Stephenson, 748 F.2d 202, 205-06 (4th Cir.1984) (dicta); Alvestad v. Monsanto Co., 671 F.2d 908, 911 (5th Cir.) (doctrine inapplicable on facts), cert. denied, 459 U.S. 1070, 103 S.Ct. 489, 74 L.Ed.2d 632 (1982). With this background, we turn to whether authority from our circuit permits application of the "unique circumstances" doctrine in the present case.

B. Ninth Circuit Authority.

We are initially confronted by two of our decisions which appear to reach conflicting results. Compare Selph v. Council of the City of Los Angeles, 593 F.2d 881 (9th Cir.1979), with In re Estate of Butler's Tire & Battery Co., 592 F.2d 1028 (9th Cir.1979) (Butler's Tire ). Upon further examination, however, we conclude that Selph is distinguishable and that Butler's Tire is controlling.

In Selph, a motion for extension of time for filing a notice of appeal was filed within the 30-day extension period permitted by the then applicable version of Rule 4(a)(5), Fed.R.App.P. However, Selph's attorney noticed the motion for a date after the expiration of the 30-day extension period. Selph, 593 F.2d at 882. As we noted, the motion could have been noticed for a date prior to the expiration of the 30-day extension period. Id. at 883. Although the district court subsequently granted the extension motion, we dismissed the appeal as untimely. We held in Selph that once the 30-day extension period expired as a result of the appellant's actions, the district court no longer possessed authority to grant an extension of time. ¹ Selph is distinguishable from the present case where the district court's action caused the delay in filing...