ClearOne v. Chiang

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT July 9, 2021
_________________________________
Christopher M. Wolpert
Clerk of Court
CLEARONE, INC., formerly ClearOne
Communications, Inc., a Utah corporation,

Plaintiff - Appellee,

v. Nos. 20-4105 & 20-4108
(D.C. No. 2:07-CV-00037-DN)
ANDREW CHIANG, an individual; (D. Utah)
JUN YANG, an individual; WIDEBAND
SOLUTIONS, a Massachusetts
corporation; BIAMP SYSTEMS,
an Oregon corporation; LONNY
BOWERS, an individual; VERSATILE
DSP, a Massachusetts corporation,

Defendants.

------------------------------

DONALD BOWERS,

Interested Party - Appellant,

DialHD,

Interested Party,

and

DAVID SULLIVAN,

Intervenor.
_________________________________

ORDER AND JUDGMENT*

*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
 _________________________________

Before TYMKOVICH, Chief Judge, BRISCOE and BACHARACH, Circuit Judges.
_________________________________

Donald Bowers appeals the district court’s renewal of a judgment against him

(No. 20-4105), and, through a separate notice of appeal, a district court order

compelling him to produce postjudgment discovery (No. 20-4108). We consolidated

these appeals for procedural purposes. We affirm the renewal of judgment and

dismiss Bowers’s challenge to the postjudgment discovery order for lack of

jurisdiction.

I. APPEAL NO. 20-4108

The background required to understand No. 20-4108 sets the stage for No.

20-4105, so we will address No. 20-4108 first.

A. Background & Procedural History

1. Early Proceedings & Bowers’s Contempt

Appellee ClearOne, Inc., is a Utah company in the business of tele- and

videoconferencing technology. The origins of its dispute with Bowers reach back to

the year 2000, when ClearOne purchased the assets of a Massachusetts company

developing similar technology. Some of the Massachusetts company’s principals and

engineers went on to form a new company to compete with ClearOne using assets

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
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they had sold to ClearOne, leading to a trade-secret lawsuit filed in Utah (and

removed to Utah federal district court) in 2007. The case went to trial the next year

and a jury found for ClearOne, awarding substantial damages. The district court then

permanently enjoined the defendants from the infringing conduct. We affirmed in all

respects. See ClearOne Commc’ns, Inc. v. Bowers, 643 F.3d 735 (10th Cir. 2011).

The “Bowers” named in ClearOne’s original lawsuit was Lonny Bowers, son

of the appellant here, Donald Bowers. ClearOne eventually discovered that Donald

Bowers was helping some of the named defendants to continue profiting from

ClearOne’s trade secrets. After various orders to show cause and associated

hearings, the district court expanded the permanent injunction to include Donald

Bowers, found him (and other defendants) in contempt, ordered him to pay

ClearOne’s attorneys’ fees incurred in pursuing contempt proceedings, required him

to demonstrate that he had purged himself of the contempt by a date certain, and

threatened incarceration as a punishment for failure to do so. When he did not timely

demonstrate that he had purged the contempt, the district court issued a bench

warrant for his arrest, leading to another appeal. We again affirmed in all respects.

See ClearOne Commc’ns, Inc. v. Bowers, 651 F.3d 1200 (10th Cir. 2011).

Meanwhile, Bowers managed to avoid arrest for a few years on his civil

contempt warrant because he lives in Georgia and the Federal Rules of Civil

Procedure generally do not allow civil contempt orders in diversity-jurisdiction cases

to be served outside of the state where issued. See Fed. R. Civ. P. 4.1(b). But the

United States eventually brought a criminal contempt prosecution and arrested

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Bowers on that charge in Georgia in 2013. He was convicted, served a prison

sentence, served additional time under the civil contempt warrant, and was finally

released in 2017 on condition that he submit to the District of Utah’s civil contempt

jurisdiction regardless of his residence. His release conditions further stated that he

“shall provide information about his financial status and until the judgments are

satisfied,” “shall respond to any written discovery or sit for a deposition as to his

financial condition at any time, and at ClearOne’s discretion,” and “shall not shield

or hide his income from ClearOne, or create any entities to avoid ClearOne’s

collection efforts.” R. at 430, ¶ 5. “Any violations of these listed conditions may

result in further contempt proceedings and incarceration.” R. at 431, ¶ 6.

2. Discovery Requests

The events leading to this most recent appeal began with an October 2019

letter from ClearOne to Bowers requesting that Bowers disclose, among other things,

documents showing all sources of income for himself and his wife. Bowers

responded with a letter of his own asserting that he had discharged his obligations to

ClearOne, or, if he had not, then any further collection proceedings must take place

in Georgia.

Given Bowers’s response letter, ClearOne moved for an order to show cause

why he should not be held in contempt of his release conditions. Bowers opposed,

but separately filed a notice with the district court stating that he had now answered

ClearOne’s discovery requests and produced everything in his power to produce. He

further stated that his only income was his Social Security benefit.

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 The district court held a hearing during which ClearOne withdrew its motion

in light of Bowers’s recent production. ClearOne instead requested that the district

court admonish Bowers. The district court ordered ClearOne to submit a

supplemental brief about that request.

ClearOne submitted a supplemental brief with a proposed order, which the

district court adopted. The order is captioned an “order of admonishment,” R. at 656

(capitalization normalized), and affirms that Bowers’s civil release conditions (such

as cooperating with ClearOne’s discovery requests) remain in force until the

judgments against him expire or are satisfied. It also warns that “if [Bowers]

commits any future violations of the orders of this Court, he may be found in

contempt and incarcerated, and the Court may refer any future misconduct or

contempt to the United States Attorney for criminal prosecution.” R. at 660, ¶ 18

(emphasis omitted).

The final paragraph of the admonishment order departs from general

admonishment and compels certain discovery: “[T]he Court orders Donald Bowers to

produce to ClearOne all statements from January 1, 2017, to the present, for any

account into which any of his social security benefits have been deposited from

January 1, 2017, to the present.” Id. ¶ 19 (emphasis omitted). A footnote explains

that, despite Bowers’s claim that his Social Security benefit is his only income, “he

has not provided statements for the account(s) into which his social security benefits

are deposited.” Id. ¶ 19 n.14.

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 Bowers timely appealed from this order. He also sought a stay pending appeal

from the district court, asserting that his Social Security benefit is deposited into his

wife’s bank account, which “is not a joint account,” and he “does not have, and never

had, access to [that] account.” Suppl. R. at 92. The district court denied the motion,

reasoning as follows:

Bowers asserts that he is threatened with irreparable harm
in being ordered to produce, under threat of incarceration,
banking records belonging to a third party. That is true.
But Bowers represents that he has placed his only asset
(Social Security funds) in the account of a third party, so it
is not unreasonable to require him to produce the records
associated with that account, particularly since the third
party is his wife.

Id. at 98.

B. Analysis

Bowers argues that the admonishment order contains numerous flaws,

including its requirement that he produce records to which (he says) he does not have

access. ClearOne asserts, however, that this court does not have jurisdiction to

review that order because the district court has not held Bowers in contempt for

disobeying.

The admonishment order is, in effect, an order compelling postjudgment

discovery under Federal Rule of Civil Procedure 69(a)(2). Our circuit has no

published authority answering whether the compelled party may immediately appeal

such an order. The consensus among our sister circuits is that the order is not

appealable until the district court finds the compelled party in contempt for

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disobedience. See Cent. States, Se. & Sw. Areas Pension Fund v. Express Freight

Lines, Inc., 971 F.2d 5, 6 (7th Cir. 1992); Richmark Corp. v. Timber Falling

Consultants, Inc., 937 F.2d 1444, 1449 (9th Cir. 1991); Rouse Constr. Int’l, Inc. v.

Rouse Constr. Corp., 680 F.2d 743, 745–46 (11th Cir. 1982); Childs v. Kaplan,

467 F.2d 628, 629–30 (8th Cir. 1972); United States v. Fabric Garment Co., 383 F.2d

984, 984 (2d Cir. 1967). These decisions persuade us, so we agree with ClearOne

that we lack jurisdiction over Bowers’s appeal of the admonishment order.

Bowers counters, however, that the admonishment order might as well be a

contempt order because it “is simply a trap for contempt awaiting failure of an

impossible task.” Aplt. Reply Br. at 5. It is not clear this changes the jurisdictional

calculus. Regardless, “[a] district court has broad discretion in using its contempt

power to require adherence to court orders.” United States v. Riewe, 676 F.2d 418,

421 (10th Cir. 1982). We will not assume ex ante that the district court will exercise

that broad discretion in any particular manner.

Bowers offers us no other jurisdictional basis for his attacks on the

admonishment order. Accordingly, we dismiss No. 20-4108 for lack of jurisdiction.

II. APPEAL NO. 20-4105

As the parties litigated the issues leading to the admonishment order, they

simultaneously litigated a separate matter regarding renewal of judgment. That

matter is before us in No. 20-4105.

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 A. Background & Procedural History

As noted above, the district court entered judgment against Bowers to

compensate ClearOne for the attorneys’ fees it incurred in contempt proceedings.

The district court entered that judgment on April 21, 2010, and awarded ClearOne

approximately $57,000. Bowers appealed the April 2010 judgment and we affirmed.

See ClearOne, 643 F.3d at 778–81.

On December 8, 2011, the district court entered judgment for additional

contempt-related fees. The December 2011 judgment awarded ClearOne $22,743.88

against Bowers individually and $184,506.52 against Bowers and his co-contemnors

jointly and severally. Bowers appealed the judgment and we also affirmed. See

ClearOne Commc’ns, Inc. v. Bowers, 509 F. App’x 798, 803 (10th Cir. 2013).

In Utah, money judgments generally remain enforceable for eight years. Utah

Code Ann. § 78B-5-202(1); see also Fed. R. Civ. P. 69(a)(1) (“The procedure on

execution [of a money judgment]—and in proceedings supplementary to and in aid of

judgment or execution—must accord with the procedure of the state where the court

is located . . . .”). But Utah law also allows a judgment to be renewed for eight more

years if the judgment creditor files a motion to that effect before the original eight

years expires. See Utah Code Ann. §§ 78B-6-1802(2), 78B-6-1804.

Apparently ClearOne let its April 2010 judgment expire. But shortly before

the eight-year anniversary of its December 2011 judgment, ClearOne moved for an

additional eight years on that judgment. The renewal motion included a description

of moneys recovered so far on its various judgments, not just the December 2011

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judgment. As relevant to the arguments we must address below, ClearOne

represented as follows:

1. In February 2012, it settled with defendant Andrew Chiang for less than

the total of the individual judgments against him, so no amount of that

settlement had been applied to any joint and several judgment.

2. In April 2012, it received $6,095.30 from the bankruptcy trustee in a

bankruptcy matter Bowers filed in the middle of contempt proceedings.

ClearOne applied that amount to the April 2010 judgment.

3. Between April 2018 and August 2019, it received various smaller

payments from Bowers personally, totaling $1,400. It applied those

payments to the portion of the December 2011 judgment running against

Bowers individually.

4. No payment had been made on the joint and several portion of the

December 2011 judgment.

ClearOne accordingly requested that the renewed December 2011 judgment subtract

$1,400 from the individual award against Bowers, and that the joint and several

award be renewed in full against all co-contemnors except Chiang (given his

settlement).

Over Bowers’s opposition, the district court granted ClearOne’s motion and

renewed the judgment on the terms requested. Bowers filed a Federal Rule of Civil

Procedure 59(e) motion to reconsider. The district court denied that motion, and

Bowers filed a notice of appeal.

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 B. Analysis

1. Joint and Several Liability vs. Proportionate Fault

Bowers asserts that Utah has abolished joint and several liability and now

requires proportionate fault, so the joint and several portion of the renewed judgment

must be vacated and apportioned among Bowers and his co-contemnors. We rejected

this argument in Bowers’s original appeal from the December 2011 judgment: “Utah

law does not apply—the contempt award was grounded in the district court’s inherent

power to enforce its orders, not in Utah law.” ClearOne, 509 F. App’x at 803. The

district court did not err in rejecting this argument again. Indeed, it would have been

error to rule otherwise. See Huffman v. Saul Holdings Ltd. P’ship, 262 F.3d 1128,

1132 (10th Cir. 2001) (“[T]he mandate rule[] provides that a district court must

comply strictly with the mandate rendered by the reviewing court.” (internal

quotation marks omitted)).

2. Credit for Amounts Recovered

Bowers argues that, in at least two instances, ClearOne misapplied amounts it

had recovered from him.

First, as to the $6,095.30 ClearOne recovered from Bowers’s bankruptcy

proceeding, Bowers insists that ClearOne should have applied only 21% of it to the

April 2010 judgment, with the remaining 79% going to other judgments against him.

Bowers derives his 21% figure from the fact that the April 2010 judgment comprised

about 21% of ClearOne’s approved claim in the bankruptcy proceeding.

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 Second, as to the settlement monies recovered from Chiang, Bowers says that

“a proportionate accounting of the [Chiang settlement] funds would be required [by

law],” Aplt. Opening Br. at 27, apparently meaning that some amount of the Chiang

settlement should reduce the joint and several portion of the December 2011

judgment.

Bowers cites no authority supporting either argument. Even more importantly,

he first advanced these theories in his reply in support of his Rule 59(e) motion.

“[W]hen a litigant fails to raise an issue below in a timely fashion and the court

below does not address the merits of the issue, the litigant has not preserved the issue

for appellate review.” FDIC v. Noel, 177 F.3d 911, 915 (10th Cir. 1999). Bowers

therefore waived these arguments and we do not consider them. See id. at 915–16

(holding that appellant had waived an argument advanced for the first time in a reply

brief in support of a motion to reconsider).1

3. Alleged Failure to Consider the Rule 59(e) Motion

Bowers’s final attack on renewal of judgment is an assertion that the district

court abused its discretion because it “never considered” the arguments advanced in

his Rule 59(e) motion. Aplt. Opening Br. at 28. We have reviewed the district

court’s Rule 59(e) order and find that it addresses all of Bowers’s arguments.

Bowers’s contention to the contrary is meritless.

1
In his appellate reply brief, Bowers advances a third argument that the
renewed judgment fails to account for all monies received from him. That argument
is waived because it does not appear in the opening brief. In re Motor Fuel
Temperature Sales Practices Litig., 872 F.3d 1094, 1112 n.5 (10th Cir. 2017).
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III. RECUSAL

Lastly, Bowers claims that the district judge should have recused himself

because his rulings show evidence of bias and favoritism. Bowers says he moved for

recusal in May 2014 and the district judge denied that motion in June 2014.

Apparently recognizing that the time to appeal from that denial has long since

expired, Bowers says that “[r]ecusal attempts . . . have proven to be futile and were

already exhausted.” Aplt. Opening Br. at 6. He further argues that the district

judge’s rulings since 2014 reinforce his claim of bias and favoritism.

We have no jurisdiction to review the district judge’s June 2014 order and

Bowers provides no authority (nor are we aware of any) holding that one recusal

motion is enough to preserve the issue in perpetuity. Moreover, to the extent Bowers

believes the district judge should have recused sua sponte sometime after June 2014,

we review only for plain error. See United States v. Kimball, 73 F.3d 269, 273

(10th Cir. 1995) (“Defense counsel neither filed a pleading nor moved for recusal

during trial. Therefore, we decide under a plain error standard whether the district

judge was so biased or reasonably appeared to be so biased that we should order

retrial with a different judge.”). But Bowers “fail[s] to argue for plain error and its

application on appeal,” which “surely marks the end of the road” for this argument.

Richison v. Ernest Grp., Inc., 634 F.3d 1123, 1131 (10th Cir. 2011). For these

reasons, we do not reach Bowers’s claim that the district judge should have recused

himself.

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IV. CONCLUSION

We affirm No. 20-4105 and dismiss No. 20-4108 for lack of appellate

jurisdiction. We deny Bowers’s motion to supplement the record and his motion to

strike the court’s sua sponte supplementation of the record.

Entered for the Court

Timothy M. Tymkovich
Chief Judge

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