Blurred Lines and Appellate Preservation

Gaye Family lead counsel Richard Busch (left) explains the surprising preservation issues.

The higher the stakes in the litigation, the more important it is to have an appellate nerd in your corner, because you can’t make your arguments to the appellate court if you haven’t preserved them at trial. Most folks who follow copyright law are aware that the Ninth Circuit late last month upheld the jury verdict in favor of Marvin Gaye’s family holding that the song Blurred Lines infringed the copyright in Marvin Gaye’s Got to Give it Up. See Williams v. Gaye, 885 F. 3d 1150 (9th Cir. 2018) [.pdf]. And while there are a lot of fascinating copyright issues there, even more important are the appellate preservation issues — the lawyers representing Thicke and Williams tanked large portions of their appeal before they even got there by failing to speak up at two important points at the trial: At the close of plaintiff’s evidence, and before the jury was dismissed after rendering its verdict.

Failure to make a Rule 50(a) Motion

In Federal Court, the rule that covers judgment as a matter of law (also sometimes called judgment notwithstanding the verdict or JNOV from the Latin judgment non obstante veredicto) requires that in a jury trial the Defendant must make a motion at the close of plaintiff’s evidence (Rule 50(a)) and then renew that motion at the end of the case (Rule 50(b)) in order to preserve a challenge to the sufficiency of the evidence. The Defendants were left with arguing that “a colloquy between their counsel and the district court regarding jury instructions and verdict forms qualifies as an “ambiguous or inartfully made” Rule 50(a) motion,” and should suffice for preservation purposes, but but the Court found that colloquy fell “far short” of even an inartful motion, and found sufficiency of the evidence unpreserved. Ouch. Williams v. Gaye, 885 F. 3d 1150, n.21 (9th Cir. 2018). In Florida, the equivalent requirement is for a motion for directed verdict.

Failure to Object to Jury’s Verdict

Defendant’s waived their objection to an alleged inconsistency in the jury’s verdict by failing to object before the jury was discharged. And this was not a controversial point — it was a pretty black letter rule that the court mentioned with citation to two older cases and moved on quickly. That objection must, must be made before the jury is discharged.

It can be very hard in the heat of battle — and trial can be a battle — to remember every possible preservation issue. That’s why we recommend you have an appellate specialist on your trial team. What you don’t want is to blur the lines of preservation.

Thank you to the panelists at the Florida Bar Business Law Section’s 9th Annual Intellectual Property Symposium for their fascinating presentations!

Dated versus Filed versus Entered

In federal court, several important (and jurisdictional) post-trial deadlines are keyed off of the “entry of judgment.” For example, a motion for a new trial “must be filed no later than 28 days after the entry of judgment,” as must a motion to alter or amend a judgment. See Fed. R. Civ. P. 59. And a notice of appeal “must be filed with the district clerk within 30 days after the judgment or order appealed from is entered.” See Fed. R. App. P. 4. Even though Fed. R. App. P. 4 and Fed. R. Civ. P. 58 go out of their way to explain what it means for an item to be “entered,” there can still be confusion when an order granting summary judgment is dated differently from the separate document entering judgment — or worse, when the the docket reflects that the item is “signed” one day, “filed” another day, and the docket entry was made on yet a third day.

The Judgment is a Separate Document

Three important practice tips. First, it is the entry of the separate judgment, not the date of the memorandum or order, that controls “entry of judgment” where the order is one that requires a separate document under rule 58. In re Southeast Bank Corp., 97 F.3d 476, 478 (11th Cir. 1996). In Southeast Bank, the judgment was entered on one date, and the opinion was docketed three days later. The Eleventh Circuit stated that the date of the entry of the final judgment – not the entry of a trial court’s memorandum opinion in support of summary judgment – was the operative date for determining the timeliness of a motion to alter or amend the judgment, and therefore held that the trial court did not have jurisdiction to entertain such a motion that was filed the appropriate number of days after the memorandum opinion was filed. So make sure you are looking at the right document when calculating your deadlines.

Entry is the Key

Second, the date of entry of the judgment is controlling — not the date it is file stamped, listed as filed, or signed. Jones v. Gann, 703 F.2d 513 (11th Cir. 1983)(“The time for filing a notice of appeal begins to run not on the date that the judgment is filed but on the date the judgment is actually entered on the docket.”)(emphasis added). As the Southern District of Florida has explained, “an entry is not effective until it is actually placed on the docket sheet.” National Sav. Bank of Albany v. Jefferson Bank, 127 F.R.D. 218 (S.D. Fla. 1989). While ideally “the entry date would always coincide with the file stamp date, thereby automatically notifying the parties of the entry date and obviating the need for the parties to inquire as to the entry date,” that is not always the case. Thus, for purposes of calculating deadlines, “an order is ‘entered’ not when it is signed by the judge, nor when it is ‘filed’ (i.e., file stamped), but rather when it is actually recorded on the docket sheet.” Id.

No mailing days

Third, the operative phrase is “entry of judgment,” not service. It doesn’t matter if you were never served the judgment, many courts will charge you with knowledge of the docket. And because it is “entry”, not “service” the deadlines are not affected by the three day grace period for actions “within a specified time after service” allowe by Fed. R. Civ. P. 6(d).

The moral of the story is that one must calculate post trial deadlines very, very carefully. When in doubt, file early.

For Whom the Waiver Tolls

A footnote in recent 11th Circuit opinion tries to bring some order to the jurisdictional morass that is post trial motions, the time for filing an notice of appeal, and the difference between a claims processing rule (which can be waived) and subject matter jurisdiction (which cannot). It may only be a footnote, but I am going to take some time to unpack it here, as these post trial issues can be very confusing.

Is Your Post Trial Motion Timely?

A timely motion filed pursuant to Fed. R. Civ. P. 50(b) or 59(a) or (e) tolls the time for appealing a judgment pursuant to Fed. R. App. P. 4(a)(4)(A). In this case, the appellant did file post trial motions, but they were late. The court held that because they were not filed within 10 days, they did not toll the time for appealing the underlying judgment. And because the post trial motions did not have a tolling effect, the notice of appeal directed to the underlying judgment was likewise untimely. And there is no way around it — the timely filing of a notice of appeal is a jurisdictional requirement. This is because

“[t]he time limits in Appellate Rule 4(a) are based on the statutory time limits for filing a notice of appeal found in 28 U.S.C. § 2107″

citing Green v. DEA, 606 F.3d 1296, 1301 (11th Cir. 2010).

Did the Appellee Waive the Timeliness Issue?

So if the appeal of the underlying judgment was waived, why are we reading a 22 page opinion with the jurisdictional issue relegated to a page-long footnote? This is where claims processing versus jurisdiction comes in. Yes, the appellant waived jurisdiction over appeal of the underlying order by failing to file timely post-trial motions and waiting more than 30 days to file a notice of appeal. But the trial court attempted to give the appellant more time to file those post trial motions, even though such attempts are forbidden by Federal Rule of Civil Procedure 6(b)(2). While the trial court technically wasn’t allowed to give the two extra days to file the post trial motions that it gave, the Appellee failed to preserve an objection to that issue. The Eleventh Circuit treated Rule 6(b)(2) as a claims processing rule rather than an jurisdictional rule, and held that the Appellee waived objection to the fact that the trial court entertained entertained the post trial motions.

A Timely Notice of Appealing Untimley Post Trial Motions

The Eleventh Circuit concluded that while the trial court didn’t have authority to extend the time to file post trial motions, the court did have the authority to substantively rule on the motions since the Appellee didn’t preserve objection to that issue. The Appellant filed its notice of appeal of the order denying the post trial motions within 30 days of the trial court’s entry of that order. The court therefore held it had jurisdiction to review the order on the post trial motions.

Why it Matters

Hence the 22 page opinion in Advanced Bodycare Solutions, LLC v. Thione Int’l, Inc., No. 09-13151 at n. 15, __ F.3d __ (11th Cir. Aug. 25, 2010)[.pdf]. All of which, by the way, ended up in the appellate court upholding the verdict in an event. But the Appellant likely waived some of its grounds for appeal by missing jurisdiction for review of the underlying final judgment. Whether that would have mattered in this case is unclear. But in any event, it’s a shame to waste precious word count on jurisdictional issues, when the whole situation can be avoided by careful application of the rules.


An important footnote from me on this footnote holding: The calculation of time in this case appears to have been made under the old calculation rules, wherein you excluded weekends and holidays for short periods of time. Don’t forget that nowadays, Days are Days.