20-632 (L)
Waterkeeper All., Inc., v. Salt
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION
TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS
GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S
LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH
THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY
CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT
REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit,
held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the
City of New York, on the 22nd day of August, two thousand twenty-two.
PRESENT:
GUIDO CALABRESI,
GERARD E. LYNCH,
RICHARD J. SULLIVAN,
Circuit Judges.
_____________________________________
WATERKEEPER ALLIANCE, INC.,
Plaintiff-Appellee, Nos. 20-632 (L), 20-3007 (Con),
21-2523 (Con), 21-2623 (Con),
v. 21-2684 (Con), 21-3042 (Con)
JEFFREY SALT,
Appellant. *
* The Clerk of Court is respectfully directed to amend the official case caption as set forth above.
FOR APPELLANT: JOSEPH A. VITA, The Law Office of
Joseph A. Vita, Port Chester, NY.
FOR PLAINTIFF-APPELLEE: JASON L. LIBOU, Wachtel Missry LLP,
New York, NY.
Consolidated appeals from orders of the United States District Court for the
Southern District of New York (Nelson S. Román, Judge).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the orders of the district court on appeal in
Nos. 20-632 and 21-2684 are AFFIRMED, and the appeals in Nos. 20-3007, 21-2523,
21-2623, and 21-3042 are DISMISSED for lack of appellate jurisdiction.
Appellant Jeffrey Salt appeals principally from an order of the district court
holding him in civil contempt of court and directing his imprisonment (the “Third
Contempt Order”). That order arises from an action commenced by
Plaintiff-Appellee Waterkeeper Alliance, Inc. (“Waterkeeper”) in February 2010
against Spirit of Utah Wilderness, Inc. (“SUW”) for trademark infringement,
breach of contract, and unfair competition under state and federal law. SUW is a
former member organization of Waterkeeper, a network of environmental
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organizations dedicated to protecting waterways worldwide; Salt is SUW’s
principal and officer.
On May 8, 2015, after SUW failed to respond to Waterkeeper’s motion for
summary judgment for over a year, the district court entered a default judgment
against SUW and enjoined SUW and Salt from using Waterkeeper’s marks
(the “Default Judgment”). SUW and Salt did not comply, and in the four years
after the entry of the Default Judgment, the district court twice held SUW and Salt
in contempt for disregarding the Default Judgment, first in October 2017
(the “First Contempt Order”), and again in April 2019 (the “Second Contempt
Order”). The First and Second Contempt Orders directed SUW and Salt to
comply with the Default Judgment, provide a list of all instances in which they
violated the Default Judgment, pay fines for their noncompliance, and respond to
Waterkeeper’s written interrogatories and document requests. SUW and Salt
continued to disregard the Default Judgment and the First and Second Contempt
Orders, prompting the district court to issue the Third Contempt Order directing
Salt to surrender to the custody of the United States Marshal for the Southern
District of New York on March 23, 2020, unless he purged himself of the contempt
by complying fully with the Default Judgment and the First and Second Contempt
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Orders. When Salt moved to alter or amend the Third Contempt Order under
Rule 59(e) of the Federal Rules of Civil Procedure, the district court denied the
motion as untimely and proceeded to consider the motion under Rule 60(b) and
find that it was without merit.
On October 22, 2021, after granting fourteen extensions of Salt’s surrender
date in light of the Covid-19 pandemic and Salt’s purported inability to travel due
to various medical ailments, the district court ordered Salt to show cause why it
should not issue a warrant for his arrest under 18 U.S.C. § 401. Salt responded
with a letter claiming that he had complied with the “primary” obligations set
forth in the district court’s prior orders by ceasing to infringe on Waterkeeper’s
marks, Dist. Ct. Doc. No. 248 at 2; he also submitted financial documents and
medical records purporting to demonstrate his indigency and various medical
conditions that prevented him from complying with the remaining obligations.
In November 2021, the district court found that Salt failed to establish good cause
for his persistent noncompliance with its orders and issued a warrant for Salt’s
arrest. The district court nevertheless stayed the execution of the arrest warrant,
with the most recent stay expiring on April 27, 2022. Salt also filed an emergency
motion in this Court to stay the execution of the arrest warrant, which we denied.
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On appeal, Salt challenges the district court’s orders (1) holding him in
contempt and directing his imprisonment, (2) denying his Rule 59(e) motion,
(3) issuing the arrest warrant, and (4) declining his requests to substitute counsel.
We review a district court’s contempt findings and denial of a motion to alter,
amend, or be relieved from a judgment for abuse of discretion, although our
review of a finding of contempt is “more exacting than [the abuse-of-discretion]
standard typically connotes.” Chevron Corp. v. Donziger, 990 F.3d 191, 202 (2d Cir.
2021) (internal quotation marks omitted); see also Devlin v. Transp. Commc’ns Int’l
Union, 175 F.3d 121, 131–32 (2d Cir. 1999) (“We review a district court’s ruling on
motions under [Rules 59 and 60] for . . . abuse of discretion.”).
The district court did not abuse its discretion in imposing the Third
Contempt Order. To demonstrate civil contempt, “a movant must establish that
(1) the order the contemnor failed to comply with is clear and unambiguous,
(2) the proof of noncompliance is clear and convincing, and (3) the contemnor has
not diligently attempted to comply in a reasonable manner.” Next Invs., LLC v.
Bank of China, 12 F.4th 119, 128 (2d Cir. 2021). All three elements are undoubtedly
met here. The Default Judgment and the First and Second Contempt Orders
clearly and unambiguously identified the exact steps required of Salt. For
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instance, the First and Second Contempt Orders directed Salt to provide
Waterkeeper and the district court “with a complete list identifying with
specificity all instances in which . . . Salt has used [Waterkeeper’s trademarks] after
May 8, 2015,” Dist. Ct. Doc. No. 135 at 9, as well as “answers to any . . .
interrogatories and responsive documents” with respect to Salt’s personal finances
and compliance with the district court’s orders, Dist. Ct. Doc. No. 160 at 10. Salt
admits that he “has not complied to date” with either of these two obligations.
Appellant’s Br. at 13. Instead, he insists that the Covid-19 pandemic and his
medical conditions excused his noncompliance. But the Default Judgment and
the First and Second Contempt Orders were all imposed well before the outbreak
of the Covid-19 pandemic in 2020, and before Salt developed the ailments that
allegedly hospitalized him in 2021. Moreover, Salt has failed to submit any
evidence demonstrating that his alleged medical conditions – such as “cough,”
“shortness of breath,” “fever,” “fatigue,” and “dizziness,” Appellant’s Br. at 14 –
were so severe that it was “factually impossible” for him to comply with the
district court’s orders in the five-year span between the entry of the Default
Judgment and the imposition of the Third Contempt Order, Badgley v. Santacroce,
800 F.2d 33, 36 (2d Cir. 1986) (quoting United States v. Rylander, 460 U.S. 752, 757
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(1983)). The district court therefore did not abuse its discretion in imposing the
Third Contempt Order.
Nor did the district court abuse its discretion by denying Salt’s Rule 59(e)
motion. Rule 59(e) provides that “[a] motion to alter or amend a judgment must
be filed no later than 28 days after the entry of the judgment.” Fed. R. Civ.
P. 59(e). Rule 6(b)(2) further prohibits a court from extending the time to act
under Rule 59(e). See Fed. R. Civ. P. 6(b)(2). Here, Salt did not file his Rule 59(e)
motion until February 20, 2020 – twenty-nine days after the district court issued
the Third Contempt Order. And while “[a]n untimely motion for reconsideration
is treated as a Rule 60(b) motion,” Lora v. O’Heaney, 602 F.3d 106, 111 (2d Cir. 2010),
a request under Rule 60(b) may be granted only in “exceptional circumstances,”
Motorola Credit Corp. v. Uzan, 561 F.3d 123, 126 (2d Cir. 2009).
Salt argues that the district court’s denial of his motion construed as a
Rule 60(b) request was an abuse of discretion because the district court (1) failed
to consider the additional authorities and arguments presented by Salt’s
court-appointed counsel, and (2) erroneously ruled that a nonparty like Salt could
be imprisoned for contempt of court. We disagree. Rule 60(c)(1) provides that
“[a] motion under Rule 60(b) must be made within a reasonable time.” Fed. R.
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Civ. P. 60(c)(1). Salt, through his counsel, attempted to submit additional
authorities and arguments on October 15, 2021, more than twenty months after the
district court entered the Third Contempt Order on January 22, 2020, and more
than eighteen months after counsel was first appointed to represent him in the
civil contempt proceeding on March 24, 2020. On this record, we cannot say that
the district court’s refusal to consider the untimely supplement was an abuse of
discretion. As to Salt’s argument that the district court erred in imposing
imprisonment on a nonparty for contempt of court, that argument had already
been raised by Salt, decided by the district court, and rejected by us on appeal.
See Waterkeeper All., Inc. v. Salt, 829 F. App’x 541, 543 n.2 (2d Cir. 2020) (“Salt argues
in passing that the district court did not have the power to hold him in civil
contempt as a non-party. This is not the case.”).
As for the appeals raised in Nos. 20-3007, 21-2523, 21-2623, and 21-3042, we
dismiss them for lack of appellate jurisdiction. Put simply, none of the orders
challenged in those appeals constitutes a final decision under 28 U.S.C. § 1291; an
appealable interlocutory order under 28 U.S.C. § 1292; or a collateral order subject
to the collateral order doctrine, see Funk v. Belneftekhim, 861 F.3d 354, 362 (2d Cir.
2017). Moreover, because we can “conclusively decide” Salt’s challenge to the
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Third Contempt Order and denial of his Rule 59(e) motion without considering
the other appeals, we decline to exercise pendent appellate jurisdiction to review
the otherwise “non-appealable issue[s].” Blue Ridge Invs., L.L.C. v. Republic of
Argentina, 735 F.3d 72, 83 (2d Cir. 2013).
We have considered Salt’s remaining arguments and find them to be
without merit. Accordingly, we AFFIRM the orders of the district court on
appeal in Nos. 20-632 and 21-2684, and DISMISS the appeals in Nos. 20-3007,
21-2523, 21-2623, and 21-3042 for lack of appellate jurisdiction.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk of Court
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