Appeal from the United States District Court for the Western District of Texas in No. 5:09-cv-00476-OLG, Judge Orlando L. Garcia.
LESLIE V. PAYNE, Heim, Payne & Chorush, LLP, Houston, TX, argued for plaintiff-appellee. Also represented by MICHAEL F. HEIM, MICAH JOHN HOWE, NATHAN J. DAVIS; MAX LALON TRIBBLE, JR., Susman Godfrey L.L.P., Houston, TX, RACHEL S. BLACK, IAN B. CROSBY, PARKER C. FOLSE, III, Seattle, WA.
CARTER GLASGOW PHILLIPS, Sidley Austin LLP, Washington, DC, argued for defendants-appellants. Also represented by CONSTANTINE L. TRELA, JR., RICHARD ALAN CEDEROTH, ROBERT N. HOCHMAN, NATHANIEL C. LOVE, Chicago, IL.
Before DYK, O'MALLEY, and WALLACH, Circuit Judges. OPINION filed by Circuit Judge O'MALLEY. Dissenting opinion filed by Circuit Judge DYK.
O'Malley, Circuit Judge.
Two-Way Media LLC (" TWM" ) brought this patent infringement suit against AT& T, Inc.; AT& T Corp.; AT& T Operations, Inc.; AT& T Services, Inc.; SBC Internet Services, Inc.; and Southwestern Bell Telephone Co. (collectively, " AT& T" ). The case proceeded to a jury trial in the United States District Court for the Western District of Texas, where the jury found that AT& T infringed the asserted claims of the patents at issue and awarded damages. The district court entered final judgment consistent with the jury's verdict on October 7, 2013. The district court thereafter denied all of AT& T's post-trial motions for judgment as a matter of law (" JMOL" ). Upon docketing those rulings, the time for AT& T to file an appeal began to run. AT& T, however, failed to file a timely notice of appeal. Because we conclude that the district court did not abuse its discretion or clearly err in refusing to extend or reopen the appeal period, we affirm.
TWM filed suit in the United States District Court for the Southern District of Texas on April 11, 2008, alleging, inter alia, infringement of certain claims of U.S. Patent Nos. 5,778,187 and 5,983,005. In June 2009, the Southern District of Texas transferred the case to the United States District Court for the Western District of Texas. The case proceeded to a jury trial, resulting in a verdict of infringement and a damages award to TWM. Final judgment reflecting the jury's verdict was entered on October 7, 2013.
On October 4, 2013, AT& T timely filed four motions for renewed JMOL or a new trial, regarding non-infringement, invalidity, and damages. These filings stayed the running of the time within which AT& T was required to file any notice of appeal from the final judgment. Because three of the four JMOL motions were confidential, AT& T moved to file those under seal. On November 22, 2013, the court denied all of AT& T's JMOL motions and granted TWM's request for costs, entering judgment against AT& T on all pending claims. When the court initially docketed the denials of AT& T's motions, it labeled the three orders addressing the confidential motions as orders granting the motions to seal, not indicating that the same orders denied the relief sought in the underlying motions. The parties (through counsel) received notice of electronic filings (" NEFs" ) for each of those orders labeled " ORDER GRANTING  Motion For Leave to File Sealed Document." Joint Appendix (" J.A." ) 13804. The underlying orders, which could be accessed by clicking on the hyperlink in the NEFs, clearly denied the merits of AT& T's JMOL motions, however. At the same time, the court docketed its order denying the fourth, non-confidential JMOL. And, the court docketed its order on TWM's Bill of Costs. Both of these were included and properly identified in the November 22 NEFs to the parties. On November 25, the court updated the description of the orders on the docket, but did not send new NEFs to the parties.
On January 15, 2014, after the appeal period had expired, AT& T asserts that it first discovered that the November orders actually denied all of its post-trial motions. The next day, AT& T filed a motion to extend or reopen the appeal period pursuant to Federal Rules of Appellate Procedure 4(a)(5) and (6). On February 6, 2014, the district court denied AT& T's motion.
A denial of a motion under Rule 4(a) is a final appealable order. See 28 U.S.C. § 1291; see also Eltayib v. United States, 294 F.3d 397, 399 (2d Cir. 2002). Because this is a patent infringement case, we have jurisdiction under 28 U.S.C. § 1295(a)(1).
Since a ruling on a motion for relief under Rule 4(a) is an issue not unique to patent law, we apply the law of the regional circuit--here, the Fifth Circuit. See Amgen Inc. v. Hoechst Marion Roussel, Inc., 25 F.App'x 923, 924 (Fed. Cir. 2001). Under Fifth Circuit law, we review the district court's ruling on a motion for relief under Rule 4(a)(5) and (6) for abuse of discretion. Stotter v. Univ. of Tex., 508 F.3d 812, 820 (5th Cir. 2007) (reviewing a motion for relief under Rule 4(a)(5) for abuse of discretion); In re Jones, 970 F.2d 36, 39 (5th Cir. 1992) (reviewing a motion for relief under Rule 4(a)(6) for abuse of discretion).
Rule 4(a) states in relevant part:
(5) Motion for Extension of Time.
(A) The district court may extend the time to file a notice of appeal if:
(i) a party so moves no later than 30 days after the time prescribed by this Rule 4(a) expires; and
(ii) regardless of whether its motion is filed before or during the 30 days after the time prescribed by this Rule 4(a) expires, that party shows excusable neglect or good cause.
. . . .
(6) Reopening the Time to File an Appeal. The district court may reopen the time to file an appeal for a period of 14 days after the date when its order to reopen is entered, but only if all the following conditions are satisfied:
(A) the court finds that the moving party did not receive notice under Federal Rule of Civil Procedure 77(d) of the entry of judgment or order sought to be appealed within 21 days after entry;
(B) the motion is filed within 180 days after the judgment or order is entered or within 14 days after the moving party receives notice under Federal Rule of Civil Procedure 77(d) of the entry, whichever is earlier; and
(C) the court finds that no party would be prejudiced.
Fed. R. App. P. 4(a).
In sum, to qualify for an extension of the appeal period, the moving party must show " excusable neglect or good cause." Fed. R. App. P. 4(a)(5). A court may reopen the appeal period, on the other hand, if, inter alia, " the court finds that the moving part did not receive notice" of the entry of the judgment or order at issue. Fed. R. App. P. 4(a)(6) (emphasis added). Both decisions are committed to the trial court's discretion. The question, accordingly, is not whether any panel member--or even all of them--would have granted AT& T's motion ...