FILED
NOT FOR PUBLICATION MAR 16 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
GAMETECH INTERNATIONAL INC., a No. 10-15626
Delaware corporation,
D.C. No. 2:01-cv-00540-ECV
Plaintiff-counter-defendant -
Appellee,
MEMORANDUM *
v.
TREND GAMING SYSTEMS, L.L.C., a
Texas limited liability company,
Defendant-counter-claimant -
Appellant.
Appeal from the United States District Court
for the District of Arizona
Edward C. Voss, Magistrate Judge, Presiding
Argued and Submitted February 16, 2011
San Francisco, California
Before: SCHROEDER and THOMAS, Circuit Judges, and CONTI, Senior District
Judge.**
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Samuel Conti, Senior District Judge for the United
States District Court for the Northern District of California, sitting by designation.
This is the second appeal in this action brought by GameTech International
Inc. to recover receipts allegedly due under its contract with Trend Gaming
Systems, L.L.C., to distribute GameTech’s gaming equipment. In the earlier
appeal, we reversed a judgment in favor of Trend and remanded for a new trial.
GameTech Intern. Inc. v. Trend Gaming Systems, LLC., 232 Fed. Appx. 676 (9th
Cir. 2007).
In this appeal, Trend seeks to challenge the district court’s order distributing
the monies collected by Trend and held in constructive trust pending the outcome
of the litigation. After the jury returned a verdict in favor of GameTech following
our remand, and after final judgment was entered, GameTech filed a motion
requesting the district court to release the funds in the constructive trust to
GameTech as partial satisfaction of the damages award against Trend. The day
after GameTech filed its motion for disbursement, Trend and its attorneys executed
a security agreement purporting to grant the attorneys a security interest in the
constructive trust to cover the attorneys’ fees owed by Trend. Trend then filed a
response opposing GameTech’s motion and cross-moved the district court to
distribute the funds to Trend. The district court entered an order granting
GameTech’s motion and directing the funds in the trust be disbursed to GameTech.
The funds were then released.
2
Litigation between GameTech and Trend has concluded, and nothing is
presently before the district court or this Court concerning the underlying dispute.
This Court is not in a position to direct the district court to fashion a remedy that
would enforce the security agreement between Trend and its lawyers; the funds in
which Trend’s attorneys allegedly now claim an interest have been disbursed to
GameTech. Accordingly, this appeal is moot. See Enyart v. Nat’l Conf. of Bar
Examiners, Inc., 630 F.3d 1153, 1159 (9th Cir. 2011) (“The test for mootness of an
appeal is whether the appellate court can give the appellant any effective relief in
the event that it decides the matter on the merits in his favor. If it can grant such
relief, the matter is not moot.” (quoting Garcia v. Lawn, 805 F.2d 1400, 1402 (9th
Cir. 1986))).
Trend did not move for reconsideration of the disbursement order, nor did it
apply for a stay before the trustee released all the funds to GameTech. “If an
appellant fails to obtain a stay after exhausting all appropriate remedies, that well
may be the end of [its] appeal.” In re Roberts Farms, Inc., 652 F.2d 793, 798 (9th
Cir. 1981).
The appeal is DISMISSED.
3