Wood v. Santa Barbara Chamber of Commerce, Inc.

• Decision Date: 20 May 1983
• Docket Number: No. 81-5422,81-5562.,81-5422
• Citation: 705 F.2d 1515
• Parties: Michael R. WOOD, individually and dba National Photo Services, Plaintiff-Appellant, v. SANTA BARBARA CHAMBER OF COMMERCE, INC., aka All Year Association, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

705 F.2d 1515

Michael R. WOOD, individually and dba National Photo Services, Plaintiff-Appellant, v. SANTA BARBARA CHAMBER OF COMMERCE, INC., aka All Year Association, et al., Defendants-Appellees.

Nos. 81-5422, 81-5562.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted July 8, 1982.

Decided May 20, 1983.

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Michael R. Wood, in pro. per.

Paul Giannini, Los Angeles, Cal., argued, for Santa Barbara; Myers & Widders, Ventura, Cal., McKay, Byrne & Udkovich, Michael A. Byrne, Los Angeles, Cal., Harold A. Donegan, Jr., Scottsdale, Ariz., on brief.

Before ANDERSON and NELSON, Circuit Judges, and PRICE^*, District Judge.

NELSON, Circuit Judge:

This consolidated appeal has two parts. In No. 81-5422, Wood appeals from a district court summary judgment dismissing all his claims against all defendants. In No. 81-5562, Wood appeals from the grant of a permanent injunction prohibiting him from bringing any similar suit in any court. We uphold the dismissal in No. 81-5422 as to all claims. We uphold the injunction in No. 81-5562 insofar as it blocked the filing of contemporaneous parallel lawsuits and provided a future reinforcement for collateral estoppel.

BACKGROUND

This appeal is the latest installment of ten years of litigation concerning photographs that were taken by the appellant in 1968 and that have been used in promotional advertisements for the City of Santa Barbara.¹ Wood filed the present action in the District of Nevada. His complaint made 18 claims, sounding in copyright, antitrust, fraud and conspiracy. He named 253 defendants, including the Santa Barbara Chamber of Commerce and every newspaper, magazine and publishing company carrying any advertising containing photographs taken by Wood for the Chamber of Commerce.

On December 15, 1980, the district court, 507 F.Supp. 1128, sua sponte dismissed all of Wood's claims against all 253 defendants. The district court relied primarily on the running of the statute of limitations and on its lack of in personam jurisdiction over most of the defendants.² The district court issued an amended version of its opinion on April 24, 1981.

On May 4, 1981 Wood submitted what he entitled "Plaintiff's Amended Motion Rules 59(e) and 60(b) to Alter or Amend Judgment and for leave to Amend Complaint Rule 15(a)." This motion contained several arguments but focused on elaborating Wood's claim that reproduction by microfilm companies hired by the publisher defendants was a continuous infringement sufficient to toll the statute of limitations. On June 1, the district court entered an order denying a variety of motions by Wood, including those contained in the May 4 document. On that same date, the district court also partially granted a motion by certain defendants for permanent injunctive relief from further legal action by Wood.

Wood initiated appeal No. 81-5422, his appeal from the April 24 amended judgment that dismissed his lawsuit, by filing a notice of appeal on May 26. Wood initiated appeal No. 81-5562, his appeal from the permanent injunction, by filing an amended notice of appeal on July 1.

TIMELINESS OF APPEAL FROM SUA SPONTE DISMISSAL

In a civil action where neither the United States nor its officer or agent is a party, Federal Rule of Appellate Procedure 4(a) requires that notice of appeal be filed within 30 days after entry of judgment. Appellant Wood did not file his notice of appeal until May 26, 32 days after the amended judgment was entered on April 24. Nevertheless, because the final day of this 30-day appeals period fell on a Sunday and the next day was Memorial Day, Wood's appeal from the summary judgment dismissing his claims is timely. Fed.R.Civ.P. 6. We now turn to the merits of Wood's appeal.

SUMMARY JUDGMENT

A trial court properly enters summary judgment if, viewing the evidence in the light most favorable to the adverse party, it finds "that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). Summary judgment is therefore subject to de novo review by this panel. Dosier v. Miami Valley Broadcasting Corp., 656 F.2d 1295 (9th Cir.1981).

Appellant raises ten objections to the grant of summary judgment and to related rulings by the district court. The exact scope of each of these objections is unclear due to the style of appellant's briefs.³ Nevertheless, we believe we can define the claims on appeal sufficiently to identify those meriting our consideration. These claims fall into three catagories: procedural defects in the issuance of summary judgment, misapplication of the statute of limitations, and improper finding of no in personam jurisdiction.

1. Alleged procedural defects in grant of summary judgment.

Objecting to the procedures by which the district court issued its summary judgment, appellant points to two documents that the court below refused to consider: an affidavit in opposition to summary judgment and a motion to amend the complaint. We find that, given the tardiness with which each of these documents was submitted, the district court acted within its discretion in rejecting both.

Wood submitted his affidavit in opposition to the motion for dismissal on the day that motion was to be heard. This was a violation of Fed.R.Civ.P. 6(d), which provides that "opposing affidavits may be served not later than one day before the hearing, unless the court permits them to be served at some other time." Rule 6(b) allows for enlargement of time "upon motion" and for "excusable neglect." The record shows no motion below and no showing of excusable neglect, and appellant's briefs to this panel similarly give no excuse for the untimeliness. The district court therefore acted properly in striking Wood's affidavits. See, e.g., Farina v. Mission Investment Trust, 615 F.2d 1068, 1076 (5th Cir.1980); Beaufort Concrete Co. v. Atlantic States Construction Co., 352 F.2d 460, 462 (5th Cir.), cert. denied, 384 U.S. 1004, 86 S.Ct. 1908, 16 L.Ed.2d 1018 (1965).

In addition to submitting an untimely affidavit, Wood also submitted an untimely motion that he characterizes on appeal as a motion to amend the complaint. Wood submitted this motion on May 4, 1981, almost five months after the district court issued its first opinion dismissing each of Wood's eighteen claims.

If the May 4 motion had been Wood's first motion to amend his pleadings, and if the motion was made prior to a responsive pleading, then the motion to amend should have been granted "as a matter of course." Fed.R.Civ.P. 15(a). This right of amendment can survive dismissal of a complaint if such dismissal precedes the defendant's answer. Solenoid Devices, Inc. v. Ledex, Inc., 375 F.2d 444 (9th Cir.1967). However, the docket sheet in this case records three answers filed before Wood made his May 4 motion to amend. One answer, that of Kern-Tribune Corp., was filed February 22. Two more were filed on February 26.

Since Wood was not entitled to amend "as a matter of course," amendment would have been by leave of court, "with leave to be freely given when justice so requires." Fed.R.Civ.P. 15(a). Denial of a late motion to amend is generally predicated upon prejudice to the opposing party. Wyshak v. City National Bank, 607 F.2d 824, 826 (9th Cir.1979). Other relevant factors include undue delay, bad faith, and the futility of the proposed amendment. Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 230, 9 L.Ed.2d 222 (1962); Howey v. United States, 481 F.2d 1187, 1190 (9th Cir.1973). This court reviews the denial of a motion to amend for abuse of discretion. Waits v. Weller, 653 F.2d 1288, 1291 (9th Cir.1981); PSG Co. v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 417 F.2d 659, 664 (9th Cir.), cert. denied, 397 U.S. 918, 90 S.Ct. 924, 25 L.Ed.2d 924 (1969). Under this standard, there was ample support for the district court's denial of the motion to amend.

The May 4 motion would have caused undue prejudice to the publisher defendants. It was offered by Wood more than two years after he filed his original complaint and would have inverted the legal theory under which the defendants were to be charged with liability.⁴ By itself, the last-minute changes in trial preparation this would have required might not have been unduly prejudicial. But cf. A. Cherney Disposal Co. v. Chicago & Suburban Refuse Disposal Corp., 68 F.R.D. 383, 385 (N.D.Ill.1975) (motion to amend denied where it added new claims and new parties and would have required extensive new discovery). However, there was sufficient prejudice to deny the motion to amend in light of the futility of the motion and the apparent bad faith with which it was offered.

The bad faith of Wood in offering his motion to amend can be inferred from two facts clearly established in the record. First, repetitious motions to amend are a favorite tactic of Wood, as is demonstrated by a similar motion filed in this case in January 1981 and by a series of amended complaints in a prior related lawsuit, Wood v. McEwen, 644 F.2d 797 (9th Cir.1981), cert. denied, 455 U.S. 942, 102 S.Ct. 1437, 71 L.Ed.2d 654 (1982). Second, the May 4 motion would merely have imported into this case claims and defendants that were already present in the consolidated multi-district litigation then pending before Judge Foley.

This second fact also shows the futility of the May 4 motion. At the time it was offered, the amended complaint would have provided Wood with no practical benefits: it would not have expanded upon the issues and claims already present in a parallel, pending action. See Flintkote Co. v. Diener, 185 F.Supp. 509, 510 (D.Puerto Rico 1960). In this context, therefore, we hold that the district court did not abuse its discretion in denying the May 4 motion to amend the complaint.

2. Rejection of fraudulent concealment defense.

In addition to the May 4 motion to amend his complaint, appellant sought to...