Tuesday, December 11, 2012

CAFC tackles "mootness" in Nissim v. ClearPlay

Nissim v. ClearPlay

Of background law:

The concept of “mootness” derives from the case or controversy requirement of Article III of the Constitution. See Allen v. Wright, 468 U.S. 737, 750 (1984). “Mootness is a jurisdictional question because the Court is not empowered to decide moot questions or abstract proposi- tions[.]’” North Carolina v. Rice, 404 U.S. 244, 246 (1971) (internal quotation marks omitted). To avoid mootness, “[t]he controversy must be definite and concrete, touching the legal relations of parties having adverse legal inter- ests.” Aetna Life Ins. Co. of Hartford, Conn. v. Haworth, 300 U.S. 227, 240-41 (1937). The case must be real and substantial, “admitting of specific relief through a decree of a conclusive character, as distinguished from an opin- ion advising what the law would be upon a hypothetical state of facts.” Id. at 241. “[T]o avoid dismissal for moot- ness, an actual controversy must remain at all stages, not merely at the time the complaint is filed.” Gerdau Amer- isteel Corp. v. United States, 519 F.3d 1336, 1340 (Fed. Cir. 2008) (citing Steffel v. Thompson, 415 U.S. 452, 460 n.10 (1974)). “Whether an actual controversy exists to support subject matter jurisdiction is a question of law subject to de novo review.” Highway Equip. Co., Inc. v. FECO, Ltd., 469 F.3d 1027, 1031-32 (Fed. Cir. 2006).
The district court dismissed this case as moot “for the reasons discussed in open court.” J.A. 6219. But a review of the transcript of the hearing reveals little more than that the court was exasperated with the parties.

Footnote 4 states:

The excessive hyperbole in the briefs makes them difficult to take seriously and unpleasant to read, and strips both parties of their credibility. Nissim charac- terizes ClearPlay’s arguments as “moan[ing],” “excuse[s],” and “absurd”; it describes one of ClearPlay’s communica- tions with the special master as “bias-inducing screed.”

ClearPlay’s briefs are no better; disparaging Nissim’s suit as “unnecessarily time-consuming and expensive,” “ill- conceived,” “wast[ing] the time and resources of ClearPlay and the [c]ourt,” and a “massive waste of judicial time and resources,” and referring to Nissim’s arguments “inexpli- cable,” “strange,” and “baffling.” The record reveals the parties’ behavior in the district court proceedings to be even worse. The parties would be well-advised to take the advice of Justice Scalia and Bryan Garner: “Cultivate a tone of civility, showing that you are not blinded by passion. . . . A straightforward recital of the facts will arouse whatever animosity the appellate court is capable of entertaining, without detracting from the appearance of calm and equanimity that you want to project.” Antonin Scalia & Bryan A. Garner, Making Your Case: The Art of Persuading Judges 34-35 (2008).
The parties’ poor judgment extends beyond their choice of words. For example, Nissim stated that “the district court stuck Nissim with ClearPlay’s trivial ges- ture” and that the court’s decision “mock[ed] justice.” These statements were at best unprofessional. See ABA Model Rules of Professional Conduct Rules 3.5, 8.4(d). ClearPlay’s statements throughout its brief that Nissim had requested only prospective relief were obvious mis- representations that cannot easily be explained away as mistakes. See id. Rule 3.3(a).

Of the reasoning by the district court:

In light of our review of the transcript of the hearing, we understand the legal basis of the court’s decision to be its belief that ClearPlay’s concessions regarding the eight filters left it with no remaining issues to resolve. This belief was incorrect for at least two reasons. First, Nissim sought more than just an order requiring Clear- Play to use the specification in making its filters. In its original motion, Nissim sought to enjoin the sale of ClearPlay’s players and to enjoin the sale and distribution of ClearPlay’s filters.


To the extent that the court may have interpreted our opinion in Nissim I to preclude it from an employing a representative sampling to determine compliance for the entire set of filters, that was also error. Although Nissim I emphasized the need for the fact finder to address each movie on a case-by-case basis, it does not follow that the fact finder was required to examine each of the 2000 movies individually. Nissim I held only that the “artistic judgment” language of section 1.4 did not create a blanket exception to compliance with the Specifications. 374 F. App’x at 993


Finally, because we read the court’s order as relin- quishing jurisdiction only over future disputes—not over the current dispute in the instant case—we do not decide under what circumstances it would be an abuse of discre- tion for the district court to limit or relinquish the juris- diction it retained over the settlement agreement in its original order dismissing the patent case, and which it has exercised for the past six years. See Kokkonen v. Guardian Life Ins. Co. of Am., 375 U.S. 375, 380-81 (1994) (holding that a federal district court has the discretion to retain ancillary jurisdiction to enforce a settlement agreement).

Judge Moore dissented:

The district court was never, and is not now, obligated to retain jurisdiction to enforce the settlement agreement. This is particularly true here because the court deter- mined that continuing to assert jurisdiction would not foster judicial economy. See Kokkonen, 511 U.S. at 380. Far from furthering judicial economy, the majority va- cates the district court’s ruling but authorizes it to do on remand precisely what it already did: exercise its discre- tion to “withdraw[] its prior retention of jurisdiction to enforce the settlement and license agreement.” J.A. 6. I see no reason to require the district court to engage in this pointless exercise. Because the district court did not err by withdrawing jurisdiction over the 1,992 filters and dismissing the case as moot with regard to the eight filters that ClearPlay agreed not to sell, I would affirm. Nevertheless, since my colleagues do not agree that the district court clearly withdrew its jurisdiction over the 1,992 filters, the court on remand merely needs to restate its decision to relinquish jurisdiction in the clearest possi- ble terms and this case should be at an end. Of course, nothing prevents the plaintiff from bringing a new action on the 1,992 filters or pursuing enforcement under section 4.6 of the settlement agreement.


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