FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
OPTIONAL CAPITAL, INC., AKA No. 22-55832
Optional Ventures,
Claimant-Appellant, D.C. Nos.
2:04-cv-02788-
and PA-PLA
2:04-cv-03386-
UNITED STATES OF AMERICA, PA-PLA
2:05-cv-03910-
Plaintiff, PA-PLA
v.
ORDER
DAS CORPORATION,
Respondent-Appellee,
and
475 MARTIN LANE, BEVERLY
HILLS, CALIFORNIA, Real Property
Located at, et al.
Defendants.
Appeal from the United States District Court
for the Central District of California
Percy Anderson, District Judge, Presiding
2 OPTIONAL CAPITAL, INC. V. DAS CORPORATION
Submitted April 21, 2023*
Filed April 28, 2023
Before: Daniel P. Collins and Kenneth K. Lee, Circuit
Judges, and Gregory A. Presnell, ** District Judge.
SUMMARY ***
Fed. R. Civ. P. 60(a)
The panel granted DAS Corporation’s motion to
summarily affirm the district court’s decision, which
recognized that the latest relief sought by Optional Capital,
Inc., pursuant to a Fed. R. Civ. P. 60(a) motion to amend,
was directly contrary to this court’s prior rulings in this case.
In its prior decision, the panel rejected Optional’s
contention that DAS should be held in contempt for
allegedly failing to comply with the May 2013 final
judgment that was entered in these forfeiture proceedings.
After that decision became final, Optional filed a Fed. R.
Civ. P. 60(a) motion to amend the May 2013 judgment to
provide that (1) the $12.6 million that DAS had received “is
impressed with a constructive trust in favor of Optional” and
*
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
**
The Honorable Gregory A. Presnell, United States District Judge for
the Middle District of Florida, sitting by designation.
***
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
OPTIONAL CAPITAL, INC. V. DAS CORPORATION 3
that (2) “DAS is directed to return that $12,602,824.09, with
interest, to Optional’s counsel.” Optional argued that the
May 2013 judgment’s failure to specifically award the $12.6
million to Optional was a “scrivener’s error” that should be
corrected under Rule 60(a). The district court denied
Optional’s Rule 60(a) motion.
First, the panel denied Optional’s motion to strike DAS’s
papers, which alleged that DAS was not a proper party in
this matter. The panel held that this contention was
frivolous. The panel held that DAS had standing to object
to the proposed entry of a subsequent final judgment that in
its view did not correctly reflect the court’s earlier rulings
that finally disposed of the matter as to DAS. DAS therefore
properly filed an opposition to Optional’s Rule 60(a) motion
in the district court and is properly deemed to be an appellee
in this court.
The panel granted DAS’s motion for summary
affirmance. As the district court correctly recognized, this
court’s decision in the prior appeal does not permit the
amendment of the judgment that Optional requested in its
Rule 60(a) motion. Rule 60(a) is limited to the correction of
“blunders” in the drafting of the judgment, and it does not
provide an opportunity for the district court to change its
mind. In its prior decision, the panel held that it was “quite
clear that the district court at the 2013 trial did not have
before it, and did not undertake to decide, the competing
claims of DAS and Optional to the $12.6 million that DAS
had received from the Credit Suisse Account in 2011.” The
panel held that in view of the rulings it made in its prior
opinion, there was plainly no “oversight” in the May 2013
judgment, and there was nothing in that judgment to
“correct” under Rule 60(a). Optional has made arguments
that are directly contrary to, and squarely foreclosed by, the
4 OPTIONAL CAPITAL, INC. V. DAS CORPORATION
rulings in the prior opinion. Those rulings are the law of the
case, and the district court correctly held it was bound to
follow them.
Finally, the panel held that despite being warned in the
prior decision that its prior litigation maneuvers had gone too
far, Optional filed this utterly meritless appeal and filed a
frivolous motion contesting DAS’s right even to be heard in
this appeal. The panel filed a contemporaneous unpublished
order directing Optional’s counsel to show cause why they
should not be sanctioned under 28 U.S.C. §§ 1912, 1927
and/or Fed. R. App. P. 38.
COUNSEL
Mary Lee, Law Offices of Mary Lee, Los Angeles,
California; Ralph Rogari, Rogari Law, Los Angeles,
California; for Claimant-Appellant.
Prashanth Chennakesavan, Kevin B. Kelly, and Joedat H.
Tuffaha, LTL Attorneys LLP, Los Angeles, California, for
Respondent-Appellee.
OPTIONAL CAPITAL, INC. V. DAS CORPORATION 5
ORDER
This appeal by Optional Capital, Inc. (“Optional”) is the
latest chapter in bitterly contested litigation that has lasted
now for more than a dozen years. We grant the motion of
Appellee DAS Corporation (“DAS”) to summarily affirm
the district court’s decision, which correctly recognized that
the latest relief sought by Optional was directly contrary to
our prior rulings in this case. We also order Optional and its
counsel to show cause why they should not be sanctioned
under 28 U.S.C. §§ 1912, 1927 and/or Federal Rule of
Appellate Procedure 38.
I
We previously set forth this litigation’s complex history
in exhaustive detail in our opinion in the most recent prior
appeal. See United States v. DAS Corp., 18 F.4th 1032,
1034–39 (9th Cir. 2021). We will not repeat that history
here. It suffices for present purposes to provide the
following brief summary of the current appeal.
In our prior decision, we rejected Optional’s contention
that DAS should be held in contempt for allegedly failing to
comply with the May 2013 final judgment that was entered
in these forfeiture proceedings. DAS Corp., 18 F.4th at
1042–43. Specifically, Optional contended that the district
court’s 2013 judgment required DAS to deliver to Optional
approximately $12.6 million that DAS had obtained in 2011,
with the authorization of the Swiss Attorney General’s
Office, from a “Credit Suisse Account” that was a disputed
res in the forfeiture proceedings. Id. at 1036, 1039. We
rejected this contention, holding that “the May 2013
judgment did not address Optional’s and DAS’s competing
rights to the funds DAS had received from the Credit Suisse
6 OPTIONAL CAPITAL, INC. V. DAS CORPORATION
Account in 2011,” and that, as a result, “DAS did not violate
that judgment by failing to turn over those funds to
Optional.” Id. at 1042. As we explained, the record made
“quite clear that the district court at the 2013 trial”—which
occurred after DAS had already been dismissed from the
case—“did not have before it, and did not undertake to
decide, the competing claims of DAS and Optional to the
$12.6 million that DAS had received from the Credit Suisse
Account in 2011.” Id. Accordingly, when the May 2013
final judgment awarded Optional “all funds” from that
account, “the district court unmistakably was referring only
to the funds that were at issue at that point in the trial, which
did not include the $12.6 million that had previously been
transferred to DAS.” Id. Optional’s petition for rehearing
en banc was denied, with no judge of this court having
requested a vote on the matter. See United States v. DAS
Corp., 23 F.4th 1227, 1228 (9th Cir. 2022).
After our decision became final, Optional filed a motion
under Federal Rule of Civil Procedure 60(a) to amend the
May 2013 judgment to provide that (1) the $12.6 million that
DAS had received “is impressed with a constructive trust in
favor of Optional” and that (2) “DAS is directed to return
that $12,602,824.09, with interest, to Optional’s counsel,
Rogari Law Firm, forthwith.” According to Optional, its
rights to the $12.6 million were “already determined” in the
district court’s findings of fact and conclusions of law after
the 2013 trial (or, at the very least, those rights followed by
“necessary implication” from those findings). Therefore,
Optional argued, the May 2013 judgment’s failure to
specifically award the $12.6 million to Optional was a
“scrivener’s error” that should now be corrected under Rule
60(a). DAS opposed the motion, arguing, inter alia, that the
premise of Optional’s motion contravened this court’s most
OPTIONAL CAPITAL, INC. V. DAS CORPORATION 7
recent opinion in 2021. In reply, Optional asserted that,
because DAS had been dismissed from the forfeiture
proceedings in 2011, it lacked standing to object to the Rule
60(a) motion and its opposition should be stricken. The
district court denied Optional’s 60(a) motion, holding that
the arguments on which it was based “ignore[d] significant
portions” of this court’s 2021 opinion and that granting the
relief requested would “contravene[] the law of the case and
the rule of mandate.” This timely appeal followed.
After Optional filed its opening brief, DAS filed a
motion for summary affirmance, thereby suspending the
completion of further merits briefing. Optional opposed that
motion, and in its opposition, Optional moved to strike
DAS’s motion for lack of standing. DAS’s motion for
summary affirmance and Optional’s motion to strike DAS’s
papers have been fully briefed and are now before us for
decision.
II
Optional’s motion to strike DAS’s papers is denied.
Optional’s motion is based on the argument that, because
DAS was dismissed from the forfeiture proceedings with
prejudice in 2011, DAS is not a proper “party” to the matter
and is not an “appellee” in this court. This contention is
frivolous.
Prior to its dismissal in 2011, DAS was a formal party to
the forfeiture proceedings, and the district court’s November
2011 order dismissing DAS from those proceedings rested
squarely on the court’s ruling that it was “not going to order
DAS to surrender” the $12.6 million. See DAS Corp., 18
F.4th at 1037 (emphasis added); see also id. at 1041
(explaining that, in dismissing DAS in November 2011, the
district court “made clear that it was not going to decide”
8 OPTIONAL CAPITAL, INC. V. DAS CORPORATION
DAS’s and Optional’s “competing claims to the $12.6
million that had been transferred to DAS from the Credit
Suisse Account”). By its Rule 60(a) motion, and this appeal,
Optional seeks to amend the forfeiture proceedings’ final
judgment to explicitly order DAS deliver the $12.6 million,
with interest, to Optional. Optional thus seeks to have the
judgment amended “to do what the district court’s 2011
order explicitly refused to order DAS to do,” thereby
effectively “reversing” that 2011 ruling, by which “DAS had
obtained a significant victory against Optional.” Id. at 1033–
34. Because a final judgment in a matter should be
consistent with the “various orders” rendered throughout the
proceedings “that merge[] into” it, id. at 1042–43, DAS has
standing to object to the proposed entry of a subsequent final
judgment that in its view does not correctly reflect the
court’s earlier rulings that finally disposed of the matter as
to DAS. 1 DAS therefore properly filed an opposition to
Optional’s Rule 60(a) motion in the district court, and it is
properly deemed to be an appellee in this court.
III
DAS’s motion for summary affirmance is granted. We
have cautioned that “summary affirmances ‘should be
confined to appeals obviously controlled by precedent and
cases in which the insubstantiality [of the appeal] is manifest
from the face of appellant’s brief.’” In re Thomas, 508 F.3d
1225, 1227 (9th Cir. 2007) (quoting United States v. Hooton,
1
At the time of DAS’s dismissal from the forfeiture proceedings in
November 2011, the district court did not enter a partial judgment under
Federal Rule of Civil Procedure 54(b). Indeed, when Optional attempted
to file an appeal from the district court’s order dismissing DAS, we
dismissed that appeal “for lack of jurisdiction on the grounds that there
was no final judgment in the forfeiture proceedings.” DAS Corp., 18
F.4th at 1037.
OPTIONAL CAPITAL, INC. V. DAS CORPORATION 9
693 F.2d 857, 858 (9th Cir. 1982)) (alterations made by
Thomas). That high standard is met here. As the district
court correctly recognized, our decision in the prior appeal
does not permit the amendment of the judgment that
Optional requested in its Rule 60(a) motion.
Rule 60(a) provides that a court “may correct a clerical
mistake or a mistake arising from oversight or omission
whenever one is found in a judgment, order, or other part of
the record.” See FED. R. CIV. P. 60(a) (emphasis added). In
view of this narrow language—and in contrast to other
portions of Rule 60—Rule 60(a) authorizes only the
correction of a “subset of mistakes.” Kemp v. United States,
142 S. Ct. 1856, 1863 (2022) (simplified) (emphasis added).
As we have explained, Rule 60(a) is limited to the correction
of “blunders” in the drafting of the judgment—that is, the
rule is limited to ensuring that the final judgment correctly
captures the rulings that the district court actually made, and
it does not provide an opportunity for the district court to
“change[] its mind.” Tattersalls, Ltd. v. DeHaven, 745 F.3d
1294, 1297 (9th Cir. 2014) (emphasis omitted). Rule 60(a)
thus “allows a court to clarify a judgment in order to correct
a failure to memorialize part of its decision, to reflect the
necessary implications of the original order, to ensure that
the court’s purpose is fully implemented, or to permit
enforcement.” Id. at 1298 (quoting Garamendi v. Henin,
683 F.3d 1069, 1079 (9th Cir. 2012)). Optional contends
that this narrow standard is met here because a “necessary
implication” of the district court’s 2013 factual findings is
that the same constructive trust that the district court
recognized as to certain property in those findings extends to
the $12.6 million that DAS received from the Credit Suisse
Account. This contention is flatly foreclosed by our prior
opinion.
10 OPTIONAL CAPITAL, INC. V. DAS CORPORATION
In our prior decision, we exhaustively reviewed the
record of these proceedings, and we held that it was “quite
clear that the district court at the 2013 trial did not have
before it, and did not undertake to decide, the competing
claims of DAS and Optional to the $12.6 million that DAS
had received from the Credit Suisse Account in 2011.” DAS
Corp., 18 F.4th at 1042 (emphasis added). The “record” of
the district court proceedings, we concluded, made
“unambiguously clear that the district court did not
undertake to decide the parties’ competing ownership
interests in the $12.6 million.” Id. at 1041. Because we held
that the competing rights of DAS and Optional to the $12.6
million were not among the matters to be resolved at that
trial, nothing about the evidence presented at that trial or the
district court’s subsequent findings can properly be
construed as having decided, by necessary implication or
otherwise, those competing rights. And given that, under our
opinion, the district court “unambiguously” did not resolve
such matters, it is obvious that the failure of the May 2013
judgment to provide for an award of the $12.6 million
correctly reflected the district court’s rulings, including, in
particular, its November 2011 order dismissing DAS. See
id. at 1033–34. In view of the rulings we made in our prior
opinion, there was plainly no “oversight” in the May 2013
judgment, and there is nothing in that judgment to “correct”
under Rule 60(a). See FED. R. CIV. P. 60(a). 2
2
Moreover, as we also explained in our prior decision, DAS was not a
participant in the 2013 trial, having been dismissed from the case
precisely because the remaining proceedings (including any trial) would
not resolve the competing claims of DAS and Optional to the $12.6
million but only claims concerning the remaining property at issue. DAS
Corp., 18 F.4th at 1037, 1041–42. Accordingly, we held that any attempt
to bind DAS to the results of that trial would “raise[] serious due process
OPTIONAL CAPITAL, INC. V. DAS CORPORATION 11
In claiming that the 2013 court trial, by necessary
implication, actually decided the very issue that we
explicitly held the district court did not decide, Optional has
made arguments that are directly contrary to, and squarely
foreclosed by, the rulings in our opinion. Those rulings are
the law of the case, and the district court correctly held that
it was bound to follow them. See, e.g., United States v.
Garcia-Beltran, 443 F.3d 1126, 1130 (9th Cir. 2006) (stating
that, under the law of the case doctrine, a district court must
follow this court’s decisions as to any “issues actually
addressed and explicitly or implicitly decided upon in the
court’s previous disposition”). Optional has provided no
non-frivolous ground for departing from those rulings.
Based on our prior controlling decision, we summarily
affirm the district court’s order denying Optional’s Rule
60(a) motion.
IV
In our earlier decision, we also warned Optional that its
prior “litigation maneuvers” in this vigorously contested
case had already gone “too far.” DAS Corp., 18 F.4th at
1033. However, we noted, in mitigation, that DAS had also
“behave[d] very badly.” Id. Despite that admonition,
Optional proceeded to make arguments in the district court
that flatly defied our prior rulings, prompting the district
court to add an additional warning that “any further efforts
to relitigate these issues, which have been previously
resolved, may be subject to the imposition of sanctions for
unreasonably and vexatiously multiplying these
proceedings.” Nonetheless, Optional filed and pursued this
utterly meritless appeal and filed a frivolous motion
concerns” and that any judgment purporting to do so would be of
doubtful “validity and enforceability.” Id. at 1042.
12 OPTIONAL CAPITAL, INC. V. DAS CORPORATION
contesting DAS’s right even to be heard in this appeal.
Accordingly, by separate order filed contemporaneously
herewith, Optional and its counsel are ordered to show cause
why they should not be sanctioned under 28 U.S.C. §§ 1912,
1927 and/or Federal Rule of Appellate Procedure 38. See
McConnell v. Critchlow, 661 F.2d 116, 118–19 (9th Cir.
1981).
OPTIONAL’S MOTION TO STRIKE DAS’S
PAPERS IS DENIED; DAS’S MOTION FOR
SUMMARY AFFIRMANCE IS GRANTED; ORDER
TO SHOW CAUSE IS ISSUED BY SEPARATE
ORDER.