Submitted August 18, 2017 [*] San Francisco, California
from the United States District Court for the Central
District of California D.C. No. 2:14-cv-08985-R-FFM Manuel L.
Real, District Judge, Presiding
Benjamin Woodhouse, Pismo Beach, California, for
S. Twomey, Gibson Dunn & Crutcher LLP, Irvine,
California; Austin Schwing, Gibson Dunn & Crutcher LLP,
San Francisco, California; for Defendant-Appellee.
Before: Johnnie B. Rawlinson and Jacqueline H. Nguyen,
Circuit Judges, and Sarah S. Vance, [**] District Judge.
Appeal / Fed.R.Civ.P. 11 Sanctions
panel dismissed for lack of jurisdiction plaintiff's
appeal of the sanctions imposed under 28 U.S.C. § 1927,
the vexatious litigant order, the denial of plaintiff's
motion to strike, the denial of plaintiff's application
for default, and the dismissal of the amended complaint; and
affirmed the district court's order imposing fees as
sanctions under Fed.R.Civ.P. 11.
panel dismissed plaintiffs' appeal as to the sanctions
imposed under § 1927, the vexatious litigant order, the
denial of plaintiff's motion to strike and the denial of
plaintiff's application for default because those matters
were not included in the notice of appeal. See Fed.
R. App. P. 3(c)(1)(B).
district court did not enter a separate judgment after it
dismissed plaintiff's amended complaint on February 18,
2015, and judgment was deemed entered on July 15, 2015,
pursuant to Fed.R.Civ.P. 58 and Fed. R. App. P.
4(a)(7)(A)(ii). Plaintiff filed the notice of appeal on
October 15, 2015. One day after the district court dismissed
the amended complaint, plaintiff filed a motion for
panel dismissed the amended complaint because the notice of
appeal was untimely. The panel concluded that plaintiff's
premature filing of a post-judgment motion did not extend the
otherwise applicable appeal period.
panel deferred to the district court's factual findings
as to whether plaintiff's filings were sufficiently
frivolous or abusive such that Rule 11 sanctions were
appropriate, and affirmed the sanctions order because the
findings were amply supported by the record.
RAWLINSON, CIRCUIT JUDGE.
appeal is the latest in an ongoing and bizarre dispute
between Havensight Capital LLC (Havensight) and Nike, Inc.
(Nike). Throughout these proceedings, Havensight has
portrayed its action as a battle between David and Goliath.
In reality, however, it is more akin to Don Quixote's
tilting at windmills.
action from which this appeal was brought concerns allegedly
wrongful conduct by Nike against Havensight (the tortious
interference action). The tortious interference action was
filed after Havensight's prior action against Nike,
alleging infringement upon a soccer brand owned by Havensight
(the infringement action), was dismissed with prejudice.
the prior action is not before us on appeal, the two cases
are somewhat intertwined. Havensight's infringement
action was dismissed with prejudice on November 19, 2014. The
following day, Havensight filed the tortious interference
action, and six days later filed its Amended
Complaint. Attached to the Amended Complaint was an
affidavit purportedly reflecting an interview of a sporting
goods retailer who reported that Nike used its market
strength to force retailers to purchase its goods, thereby
excluding competitors like Havensight. After the tortious
interference action was reassigned to the same judge who
presided over the infringement action, Nike filed a motion to
dismiss under Federal Rule of Civil Procedure (FRCP)
juncture, Havensight departed sharply from ordinary
procedure, filing multiple motions for default on the basis
that Nike's motion to dismiss was untimely. Before the
district court could rule on the motions, Havensight filed a
writ of execution with the Clerk of the Court, claiming a
default judgment in excess of $600 million. Of course,
because Nike had timely filed its motion in lieu of an
answer, no default judgment was warranted, and the district
court ordered the writ of execution stricken.
subsequently filed a Motion for Relief Regarding
[Havensight's counsel's] Ethical Violations.
Undeterred, Havensight moved to recuse the assigned judge
from the tortious interference action and from the
(dismissed) infringement action. The judge assigned to
Havensight's recusal motions denied both. Nike
subsequently sought sanctions under Rule 11 of the Federal
Rules of Civil Procedure (Rule 11) due to Havensight's
false and frivolous filings.
February 18, 2015, the district court granted Nike's
motion to dismiss the Amended Complaint without leave to
amend, and imposed sanctions under Rule 11 against
Havensight's counsel in the form of attorneys' fees
and expenses. No separate judgment was entered for this
order. The following day, Havensight filed a motion to vacate
the dismissal and the Rule 11 sanctions (motion for
reconsideration). Included in Havensight's motion was yet
another motion to recuse the judge who decided the earlier
recusal motions. Although the judge had previously requested
that Havensight refrain from filing further recusal motions,
Havensight decided to Just Do It. Understandably, the court
did not look favorably upon Havensight's audacity, and
denied the motion on April 22, 2015, while issuing an order
to show cause why additional sanctions should not be imposed
under Rule 11 and 28 U.S.C. § 1927. These sanctions
were imposed on March 31, 2015.
district court entered a separate order declaring Havensight
to be a vexatious litigant, and Nike moved for attorneys'
fees and costs pursuant to the Rule 11 sanctions imposed in
the February 18 order. The district court granted Nike's
motion in full in an order entered on September 22, 2015.
filed its Notice of Appeal on October 15, 2015. In its
notice, Havensight referenced only the dismissal of the
Amended Complaint and the granting of the Rule 11 sanctions.
Havensight now seeks to expand the scope of rulings of its
appeal to include the additional sanctions imposed under 28
U.S.C. § 1927, the vexatious litigant order, the denial
of Havensight's motion to strike "Nike's alleged
illegal deposition and felonious entry of a ...