UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-30325
JAMES P. LOGAN, JR.,
Plaintiff,
versus
BURGERS OZARK COUNTRY CURED HAMS INC.; ET AL.,
Defendants.
JAMES P. LOGAN, JR.,
Plaintiff-Appellant,
versus
ORIGINAL HONEY BAKED HAM COMPANY OF GEORGIA, Etc.; ET AL.,
Defendants,
ORIGINAL HONEY BAKED HAM COMPANY OF GEORGIA, doing business as
Honeybaked Ham Co.; HONEYBAKED FOODS INC., doing business as
Honeybaked Ham Co.,
Defendants-Appellees.
Appeal from the United States District Court
for the Western District of Louisiana
(97-CV-1363)
March 12, 2003
Before GARWOOD, SMITH, and BARKSDALE, Circuit Judges.
PER CURIAM:*
This appeal is from the district court’s 29 January 2002
reentry of an order post-appellate mandate; it originally entered
the order in May 2000, shortly after the notice of appeal was
filed. At issue is whether a district court may amend an order of
dismissal, more than one year after it was entered, to state the
original dismissal was with prejudice, even though the new order
follows an appellate mandate, issued after, and based upon, the
appellate holding that the original dismissal was without
prejudice. The 29 January 2002 order at issue is VACATED.
I.
James P. Logan holds a method patent for spirally-slicing
meat. In July 1997, Logan filed a patent infringement action
against Original Honey Baked Ham Company of Georgia and Honeybaked
Foods, Inc. (collectively Honeybaked). To resolve the dispute,
Logan and Honeybaked entered into a licensing agreement, with
Honeybaked to pay royalties on spirally-sliced meat product sales.
Upon Logan's learning that Honeybaked discontinued these sales,
Logan reinstituted the patent infringement claim, adding breach-of-
contract, fraud, and Lanham Act claims.
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
2
Trial was bifurcated, with the non-patent claims tried first.
For those claims, a jury awarded damages against Honeybaked for
approximately $9 million.
Logan then moved to dismiss, with prejudice, his pending
patent claims. On 9 August 1999, those claims were dismissed; but,
the order did not specify whether the dismissal was with prejudice.
That same day, by separate order, the district court stated the
action was “dismissed in its entirety”. Logan v. Burgers Ozark
Country Cured Hams, Inc., No. 97-CV-1361 (W.D. La. 9 Aug. 1999)
(order denying as moot motions by Honeybaked for summary judgment
and by Logan to suppress). Following consideration of attorney's
fees, final judgment was entered in February 2000.
Later that month, Honeybaked requested judgment as a matter of
law (JMOL). Approximately two months later (19 April 2000), the
district court vacated all damages awarded against Honeybaked,
stating: “[Logan] has been returned to his original position
because he is able to file suit on his patent claim”. Logan, No.
97-CV-1361 (W.D. La. 19 Apr. 2000) (emphasis added; memorandum
ruling on Honeybaked’s JMOL motion). On 10 May 2000, without
citing a Federal Rule of Civil Procedure granting the district
court authority to do so, Honeybaked moved the court “to amend” the
19 April order to state that, the prior August, Logan’s patent
claims had been dismissed with prejudice and Logan had not been
“returned to [his] original position”.
3
Concerning the 19 April ruling granting JMOL to Honeybaked,
and while Honeybaked's 10 May motion was pending, and unsure
whether this circuit or the Federal Circuit had jurisdiction, Logan
filed an appeal with each on 16 May 2000, shortly before the time
to appeal lapsed. One day later, however, the district court
granted Honeybaked’s 10 May motion: “[T]he [19 April 1999]
Memorandum Ruling will be corrected to state that [Logan] had moved
to dismiss with prejudice his patent infringement action against
[Honeybaked] and the Court had granted that motion with prejudice”.
Logan, No. 97-CV-1361 (W.D. La. 17 May 2000) (emphasis added; order
amending 19 April 1999 memorandum ruling).
That December, the Federal Circuit, in ruling on Logan's
motion to dismiss his appeal, refused to do so, based on its having
jurisdiction. Logan v. The Original Honey Baked Ham Co. of
Georgia, Inc., No. 00-1389 (Fed. Cir. 20 Dec. 2000) (single-judge
order denying Logan’s motion to dismiss). Four months later, that
court stayed the appeal pending resolution of the parallel appeal
in our court. Logan, No. 00-1389 (Fed. Cir. 24 Apr. 2001) (order
granting Logan’s unopposed motion to stay).
And, approximately four months after that ruling (September
2001), our court held it had jurisdiction; the JMOL was affirmed.
Regarding whether the dismissal had been with prejudice, our court
held:
[U]nder Federal Circuit precedent, the key
inquiry in this case is whether the dismissal
4
of [Logan's] patent claims was with or without
prejudice.... Because the district court was
without jurisdiction to enter the May 17th
order [(post-notice of appeal)]and because the
correction made therein was not clerical but
substantive, we find that the dismissal of the
patent claims was without prejudice.
Accordingly, the Federal Circuit’s precedent
holding that it lacks jurisdiction over non-
patent claims where patent claims are
dismissed without prejudice from complaints
containing multiple claims is applicable in
this case. Thus, we conclude that
jurisdiction is proper in this Court, not in
the Federal Circuit.
Logan v. Burgers Ozark Country Cured Hams, Inc., 263 F.3d 447, 453-
54 (5th Cir. 2001) (Logan I; emphasis added).
Following our court's decision, and while this second appeal
was pending here, the Federal Circuit, in August 2002, dismissed,
for lack of jurisdiction, Logan's original May 2000 appeal. Logan
v. The Original Baked Ham Co. of Georgia, Inc., No. 00-1389 (Fed.
Cir. 2 Aug. 2002) (unpublished order dismissing appeal). The
Federal Circuit held: its earlier single-judge order did not
create the law of the case; Logan I's holding our court had
jurisdiction in the parallel appeal was the law of the case; and
the Federal Circuit would follow that Logan I decision, because
there were no exceptional circumstances.
After our mandate for Logan I issued on 18 October 2001,
Honeybaked moved the district court to reenter the 17 May 2000
order which had stated the patent claims dismissal was with
prejudice. Once again, Honeybaked did not reference a Federal Rule
5
of Civil Procedure vesting the district court with authority to do
so.
The district court granted the motion, however, relying on
Standard Oil Co. of California v. United States, 429 U.S. 17
(1976). The district court concluded: it had an “inherent power
and discretion to act on its own after [the] mandate issued”; the
law-of-the-case doctrine did not apply because Logan I only held
the 17 May 2000 order ineffective because the district court lacked
jurisdiction; and, post-appeal, it had jurisdiction to reenter that
order. Logan, No. 97-CV-1361 (W.D. La. 29 Jan. 2002) (memorandum
ruling reentering 17 May 2000 order).
Logan again appealed to both our circuit and the Federal
Circuit. The Federal Circuit heard oral argument on 7 January
2003; approximately one month later, oral argument was held in our
court. As of the rendition of this opinion, the Federal Circuit
has not ruled.
II.
By reentering the 17 May 2000 order, the district court
violated the law of the case and, in the alternative, the Federal
Rules of Civil Procedure.
As noted, the district court, in reentering the May 2000
order, relied on its “inherent power” and referenced Standard Oil;
that opinion discusses Rule 60(b) motions. Although it did not do
6
so in district court, Honeybaked now claims Rule 60(b) grants such
authority.
Generally, Rule 60(b) rulings are reviewed only for abuse of
discretion. E.g., Edward H. Bohlin Co., Inc. v. Banning Co., Inc.,
6 F.3d 350, 353 (5th Cir. 1993). Here, however, we are not
reviewing the merits of the reentered May 2000 order; instead, we
are deciding whether the district court had authority, post-Logan
I, to take such action. This is a purely legal issue, reviewed de
novo. See, e.g., Carter v. Fenner, 136 F.3d 1000, 1005 (5th Cir.)
(decisions under Rule 60(b)(4) reviewed de novo because such
motions “leave no margin for consideration of the district court’s
discretion as the judgments themselves are by definition either
legal nullities or not”), cert. denied, 525 U.S. 1041 (1998).
A.
Logan contends: in Logan I, our court held the dismissal was
without prejudice; under the law of the case, the 17 May 2000
order, amending the dismissal to be with prejudice, could not be
reentered post-Logan I. Honeybaked responds: our court only held
the district court was without jurisdiction to enter the 17 May
2000 order after the first notice of appeal (16 May 2000); because
the district court reacquired jurisdiction after the Logan I
mandate issued in October 2001, the district court had authority to
reenter the order under Rule 60(b), pursuant to Standard Oil.
7
Standard Oil, which concerned a Rule 60(b) motion based on
alleged misconduct by the Government's counsel and a material
witness, 429 U.S. at 17, only decided whether, post-appellate
mandate, a district court must request leave from the appeal court
before ruling on a Rule 60(b) motion. The Supreme Court held it
did not.
Like the original district court judgment, the
appellate mandate relates to the record and
issues then before the court, and does not
purport to deal with possible later events.
Hence, the district judge is not flouting the
mandate by acting on the motion.
Id. at 18 (emphasis added).
This holding follows the contours of the law-of-the-case
doctrine.
While the “law of the case” doctrine is not an
inexorable command, a decision of a legal
issue or issues by an appellate court
establishes the “law of the case” and must be
followed in all subsequent proceedings in the
same case in the trial court or on later
appeal in the appellate court, unless the
evidence on a subsequent trial was
substantially different, controlling authority
has since made a contrary decision of the law
applicable to such issues, or the decision was
clearly erroneous and would work manifest
injustice.
White v. Murtha, 377 F.2d 428, 431-32 (5th Cir. 1967) (footnotes
omitted). See Arizona v. California, 460 U.S. 605, 618-19 (1983)
(under law-of-case doctrine, when court decides rule of law, that
decision continues to govern same issue, but jurisdiction retained
“to accommodate changed circumstances”, citing White v. Murtha).
8
In other words, the district court cannot disturb the mandate,
which “relates to ... issues then before the [appellate] court”; on
the other hand, the district court may, of course, “deal with ...
later events”. Along this line, the district court is bound by
“things decided by necessary implication as well as those decided
explicitly”. Terrell v. Household Goods Carriers’ Bureau, 494 F.2d
16, 19 (5th Cir.), cert. denied, 419 U.S. 987 (1974).
Reentry of the 17 May 2000 order concerned an issue decided in
Logan I. That opinion held the district court’s dismissal was
without prejudice. 263 F.3d at 454. This became the law of the
case; the district court could not subsequently reenter an order
contradicting that mandate. Further, there was no new,
substantially different evidence; intervening, contrary,
controlling law; or a clearly erroneous decision in Logan I.
B.
In the alternative, the district court did not have authority
under the Federal Rules of Civil Procedure to reenter the order.
Post-mandate, neither Honeybaked’s motions nor the district court’s
order addressed which Rule provided authority to reenter the 17 May
2000 order. As noted, the district court did refer to Standard
Oil, which discussed Rule 60(b). On appeal, Honeybaked contends
the district court had authority to reenter the order based on
Rules 60(b)(1) and 60(b)(6). In this instance, however, Rule 60(b)
proscribes the district court's reentering the order.
9
1.
Under Rule 60(b)(1), and upon motion, the district court may
relieve a party from a final order as a means of correcting
“mistake, inadvertence, surprise, or excusable neglect”. The
motion, however, must be made “not more than one year after the ...
order”. FED. R. CIV. P. 60(b). On 30 November 2001, Honeybaked
moved to reenter the 17 May 2000 order, amending the 9 August 1999
and 19 April 2000 orders. The motion was more than a year after
these orders, and the appeal did not toll the one-year period.
E.g., Newball v. Offshore Logistics Int'l, 803 F.2d 821, 827, n.4
(5th Cir. 1986).
2.
Rule 60(b)(6) allows amendment for “any other reason
justifying relief from the operation of the judgment”. The rule
only requires the motion be made in a reasonable time. Subpart
(b)(6), however, may not be used to circumvent the one-year
limitation period, where, as here, the reason for relief is
embraced in subpart (b)(1). Newball, 803 F.2d at 827; Gulf Coast
Building and Supply Co. v. Int'l Brotherhood of Electrical Workers,
Local No. 480, AFL-CIO, 460 F.2d 105, 108 (5th Cir. 1972).
III.
For the foregoing reasons, and pursuant to Logan I, the
dismissal of Logan’s patent claims remains without prejudice.
10
Accordingly, the district court’s reentry of the 17 May 2000 order
is
VACATED.
11