[00:00:00] Speaker 03:
Is 21-1861, Halo Electronics versus Belfuse.

[00:00:05] Speaker 03:
Mr. Dragset, please proceed.

[00:00:07] Speaker 00:
May it please the court.

[00:00:08] Speaker 00:
Good morning.

[00:00:09] Speaker 00:
I have some concern that the chambers in reading the briefs may see this as one of those cases with two ships passing in the night.

[00:00:16] Speaker 00:
So I thought it might be helpful to the court to quickly frame what we think are the two issues the court needs to decide in order to resolve this case.

[00:00:24] Speaker 00:
So the first issue is whether the order and judgment of September 6, 2017 made this case

[00:00:32] Speaker 00:
final on September 6, 2017, whether it adjudicated the leftover interest issue.

[00:00:43] Speaker 00:
We think the answer to that is clearly no, based on a couple of cases from this court.

[00:00:49] Speaker 00:
And then the second issue, if it wasn't final on September 6, is there some way that it became final after September 6, 2017?

[00:00:57] Speaker 00:
We think the answer to that is no, based on cases from this court, based on the rules, and based on decisions from other courts.

[00:01:07] Speaker 00:
So issue number one, this court's prior decision in this very case, this litigation, holds or held that the remaining interest issues were the type that would block finality.

[00:01:21] Speaker 02:
I don't want to throw you off the presentation I'm making, but to get to the core here, is your position that absent

[00:01:37] Speaker 02:
You could have brought this proceeding five years, 10 years, or 20 years down the road, and you would be in exactly the same position you are today.

[00:01:49] Speaker 00:
I think if you say there was no final judgment on September 6th.

[00:01:53] Speaker 02:
But that's your position.

[00:01:54] Speaker 00:
It wasn't.

[00:01:55] Speaker 00:
Yeah.

[00:01:56] Speaker 00:
So if you accept that.

[00:01:57] Speaker 02:
Right.

[00:01:58] Speaker 00:
I think the case law and the rules support that the passage of time does not change that judgment to a final judgment.

[00:02:07] Speaker 00:
So I think the answer to your question, I think it's maybe far-fetched.

[00:02:11] Speaker 02:
Why is it far-fetched?

[00:02:12] Speaker 02:
This is three years.

[00:02:13] Speaker 02:
That's a very long period of time for a case to be in limbo.

[00:02:16] Speaker 00:
It is and it isn't.

[00:02:18] Speaker 00:
You know, we cited Penn West.

[00:02:20] Speaker 00:
We cited Lehman.

[00:02:21] Speaker 00:
Those were both three.

[00:02:22] Speaker 00:
This was under three.

[00:02:23] Speaker 00:
Those cases were both three years.

[00:02:25] Speaker 00:
And the First Circuit and the Third Circuit in those cases said we, essentially what this court said in Enzo Versi General, we have no choice but to reopen the case.

[00:02:36] Speaker 00:
I don't think you're going to have.

[00:02:37] Speaker 00:
We have weird facts in this case, obviously, in part because we had two different appeals crossing.

[00:02:43] Speaker 00:
We had an appeal that was aborted and came back at a different time and, I think, confused the district court or got it off guard.

[00:02:52] Speaker 02:
And then we have- So your position is that this is not, that you filed an appeal which you are now arguing was an improper appeal for which we have no jurisdiction.

[00:03:02] Speaker 00:
And we have an alternative argument, but yes.

[00:03:06] Speaker 02:
And the alternative, if you're right about that, then your remedy is mandamus, right?

[00:03:12] Speaker 00:
I think we are in the position of end zone versus gen probe.

[00:03:17] Speaker 00:
So there was an appeal, and it was not a proper appeal.

[00:03:21] Speaker 00:
Now it was from the party that wasn't asking for a remand.

[00:03:25] Speaker 00:
But I don't think that changes.

[00:03:28] Speaker 00:
In Enzo versus Gen Pro, you had a judge who thought he'd enter a final judgment.

[00:03:33] Speaker 00:
He entered a judgment.

[00:03:36] Speaker 00:
He told the clerk to close the case.

[00:03:39] Speaker 00:
He asked the parties, is there anything left for me to do?

[00:03:42] Speaker 00:
They said no.

[00:03:43] Speaker 00:
So we had a judgment.

[00:03:46] Speaker 00:
We had a closure of the case.

[00:03:48] Speaker 00:
There, we had a judge who not only made clear at the time that he thought he was making a final, but we had a party that said to the judge, no, you don't have anything else to do.

[00:03:58] Speaker 00:
And yet there, there was not a final judgment.

[00:04:01] Speaker 00:
And what this court did was it said, we don't have jurisdiction.

[00:04:07] Speaker 00:
Go back.

[00:04:08] Speaker 00:
And we haven't briefed for this part, but I think this would be the most efficient thing to do, is to hold the appeal.

[00:04:14] Speaker 00:
Say, go back, have the judge rule on docket 635 and the opposition to that, and the reply to that, to perfect the appeal, and then bring it back and merge it together.

[00:04:25] Speaker 03:
Now, I don't remember the specific facts of ENSO, so help me.

[00:04:29] Speaker 03:
It's my recollection, though, that what was at issue there is completely unaddressed counterclaims.

[00:04:36] Speaker 03:
Is that right?

[00:04:37] Speaker 00:
that the court had addressed the invalidity counterclaim and not address the inequitable conduct counterclaim.

[00:04:44] Speaker 03:
Right.

[00:04:45] Speaker 03:
And so when the court said, is there anything left for me to do?

[00:04:49] Speaker 03:
which party was it that said, nope, nothing left for you to do, the one who had the still pending counterclaims or the other one?

[00:04:57] Speaker 00:
I believe both parties did.

[00:04:59] Speaker 00:
Are you sure about that?

[00:05:00] Speaker 00:
I believe so.

[00:05:01] Speaker 00:
Now, there was a dispute on appeal on what did that mean?

[00:05:05] Speaker 00:
What did they intend by gen probe, the party that was trying to say there wasn't jurisdiction, so that would be the party in our position.

[00:05:12] Speaker 00:
What did gen probe mean when they said to the judge, you're done?

[00:05:14] Speaker 00:
And they said, well, all we meant was you're done with what was

[00:05:18] Speaker 00:
in the hearing that day, in validity.

[00:05:22] Speaker 00:
But here's what's critical.

[00:05:24] Speaker 00:
This court went through and gave the argument from Enzo.

[00:05:27] Speaker 00:
They gave the argument from Genpro.

[00:05:29] Speaker 00:
They were making all sorts of equitable arguments, fairness arguments about why this judgment should be considered final, even though it didn't adjudicate the claim.

[00:05:39] Speaker 00:
And this court, after laying out the party's arguments, set them aside and said, we have no choice.

[00:05:48] Speaker 00:
OK, I think the fair reading of Enzo versus Genprobe there is equitable issues do not play if there was not a final judgment on the day that it's alleged.

[00:06:01] Speaker 02:
Well, Penn West, although it sent the case back to the district court, said that the district court could decide whether this case should be disposed of

[00:06:13] Speaker 02:
based on latches or failure to prosecute under Rule 41B.

[00:06:19] Speaker 02:
So certainly, that case left it open, at least at the district court level, to dispose of the case for failure to act expeditiously by the appellant.

[00:06:31] Speaker 02:
Why isn't that the right disposition, or either that, or for us to decide that, in fact, latches applies to the alternative request for mandamus in this case?

[00:06:40] Speaker 00:
OK, Latches was not decided by the district court here.

[00:06:43] Speaker 00:
I think that's clear.

[00:06:44] Speaker 02:
Well, he didn't expressly use the term Latches, because nobody had said that next.

[00:06:49] Speaker 02:
But he said all the words that would be necessary to address the question of Latches.

[00:06:55] Speaker 02:
He emphasized that, number one, this had been a very long period of time, and number two, that there was prejudice to the non-appealing party.

[00:07:05] Speaker 02:
here, which is the two measures of lunches.

[00:07:11] Speaker 02:
Why isn't that the right way to look at this case in order to avoid our being in this impossible position of having a case that can be brought back to life after 20 years?

[00:07:25] Speaker 00:
Passage of time has been argued, and equities in that context, but latches has not been argued and was not ruled on by the district court in this case.

[00:07:33] Speaker 00:
So that's part one.

[00:07:34] Speaker 00:
I'll get to part two, because I know you're going to ask me about that.

[00:07:37] Speaker 00:
Part one is it hasn't been ruled on.

[00:07:38] Speaker 00:
The district court would have to rule on that at first.

[00:07:41] Speaker 00:
And our opponent never raised that issue.

[00:07:43] Speaker 00:
What the district court ruled on and what our opponent ruled on was there was a final judgment on September 6.

[00:07:51] Speaker 00:
Now, under Rule 60,

[00:07:53] Speaker 00:
does delay do the various equities allow us to undo that final judgment?

[00:08:00] Speaker 00:
And we bore a very heavy burden on that, if you assume that.

[00:08:03] Speaker 00:
We're not appealing that part of the case.

[00:08:06] Speaker 00:
So that's all that's been decided is that the delay does not overcome the heavy burden of finality.

[00:08:13] Speaker 00:
If you were to think that latches might play in here,

[00:08:16] Speaker 00:
First, it hasn't been argued yet.

[00:08:18] Speaker 00:
So I think it would be beyond the court's ability as a court of review to pick it up for the first time on appeal, because that's a different issue than whether we can overcome the heavy burden of Rule 60.

[00:08:31] Speaker 00:
But also, I don't think the record supports it.

[00:08:34] Speaker 00:
You mentioned reliance.

[00:08:36] Speaker 00:
We have attorney argument for reliance only.

[00:08:39] Speaker 00:
We actually have evidence in the record that cuts counter to that.

[00:08:43] Speaker 00:
If you look at the Woodford Declaration at appendix 1637, it indicates that the parties, Mr. Countryman and Mr. West here, were discussing after September 6 the issue of the remaining interest.

[00:09:00] Speaker 02:
September 6th of what year?

[00:09:01] Speaker 00:
September 6th of 2017.

[00:09:03] Speaker 02:
Right.

[00:09:03] Speaker 02:
That's three years back before the case was ultimately presented again to the district court.

[00:09:12] Speaker 00:
But the point to that is there is no reliance on them believing

[00:09:18] Speaker 00:
that this was a final judgment.

[00:09:20] Speaker 00:
They may be able to argue that the passage of time led to something.

[00:09:26] Speaker 00:
And we could argue back, well, there's a special situation here because our attorney disappeared.

[00:09:32] Speaker 00:
They say they don't know why he disappeared, but our attorney disappeared from the scene.

[00:09:36] Speaker 00:
And we could do all of that potentially.

[00:09:38] Speaker 02:
There were 11 attorneys in this case that entered an appearance.

[00:09:43] Speaker 02:
And one attorney disappearing isn't an explanation for this.

[00:09:48] Speaker 02:
remarkable failure to continue addressing the problem of the case.

[00:09:55] Speaker 02:
What happened to those other 10 attorneys?

[00:09:57] Speaker 00:
I think the discussion we're having here is the sort of discussion that could, if it was preserved and if it was presented properly with evidence, that we could have at the trial court.

[00:10:07] Speaker 00:
I don't think it's an appropriate issue for an appellate court to pick up in the first instance.

[00:10:13] Speaker 03:
I guess one thing I'm confused about.

[00:10:15] Speaker 03:
When the judge entered final judgment in 2017, having resolved the enhanced damages and attorney's fees motions, Halo had not raised with the judge anything about prejudgment interest still being on the table, despite our prior dismissal, which sent issues back.

[00:10:34] Speaker 03:
Halo never raised it at any point.

[00:10:38] Speaker 03:
Why isn't there?

[00:10:40] Speaker 03:
Why isn't it the case that Halo abandoned that issue, such that when the judge entered final judgment and closed the case, that was, in fact, final judgment which closed the case?

[00:10:51] Speaker 03:
And Halo has simply abandoned its rights to continue to pursue the prejudgment interest.

[00:10:57] Speaker 00:
So I think on that, I direct the court to Appendix 72, which is the docket.

[00:11:02] Speaker 00:
And it's very small, so I have to look closely.

[00:11:04] Speaker 00:
It's the conference from September 27, 2016.

[00:11:08] Speaker 00:
And they're discussing that very issue.

[00:11:15] Speaker 00:
And the court says, and this is after it had been briefed.

[00:11:18] Speaker 00:
Where are you?

[00:11:18] Speaker 00:
Oh, I'm sorry.

[00:11:19] Speaker 00:
I'm on Appendix 72.

[00:11:21] Speaker 00:
Appendix 72.

[00:11:22] Speaker 00:
About the middle there is docket entry 605.

[00:11:25] Speaker 00:
OK.

[00:11:29] Speaker 00:
And then if you go to about the middle of that docket entry,

[00:11:32] Speaker 00:
And for context, this is after the parties had briefed the interest issue.

[00:11:37] Speaker 00:
The court had what we call half ruled on it.

[00:11:41] Speaker 00:
The court had told the parties, go back and try to figure it out.

[00:11:44] Speaker 00:
And the parties came back and briefed it again, said, we couldn't figure it out.

[00:11:47] Speaker 00:
Please finish it for us.

[00:11:50] Speaker 00:
And it says there in the documentary, the court will take this issue under advisement and issue a written order.

[00:11:59] Speaker 00:
The ball was in the court's court.

[00:12:02] Speaker 03:
Yes, but that's in 2016.

[00:12:04] Speaker 03:
And then in 2017, the court issues an order addressing damages and attorney's fees and makes clear, it says, it is further ordered that the clerk of the court shall enter judgment accordingly and close this case.

[00:12:18] Speaker 03:
So the court has now, in fact, issued a written order.

[00:12:23] Speaker 03:
Now, granted that written order didn't address prejudgment interest, but why

[00:12:27] Speaker 03:
Why doesn't HALO have an obligation to renew that question to the extent that there is potentially a deficit in the 2017 final judgment?

[00:12:38] Speaker 00:
And I think Enzel versus GenProbe answers that.

[00:12:41] Speaker 03:
Enzel versus GenProbe is a counterclaim issue.

[00:12:43] Speaker 03:
All claims and counterclaims have been fully resolved in this case.

[00:12:46] Speaker 03:
Prejudgment interest isn't a claim.

[00:12:48] Speaker 00:
I would say that claim has not been resolved.

[00:12:51] Speaker 00:
If that's true, then the prior appeal in this case should have come out differently.

[00:12:57] Speaker 00:
The claim we had was for patent infringement.

[00:13:00] Speaker 00:
And part of that claim, to finish off that claim, is to award us our interest.

[00:13:05] Speaker 00:
So there was a claim.

[00:13:06] Speaker 00:
There wasn't an entire claim remaining.

[00:13:08] Speaker 00:
But that's not what the final judgment rule requires.

[00:13:11] Speaker 00:
It requires that everything be taken care of except for acting on the judgment.

[00:13:17] Speaker 00:
And so the distinction of counterclaim versus interest, I don't think, makes a difference under the Catlin standard from the Supreme Court, under this court's previous decision in this case.

[00:13:30] Speaker 00:
And then, as a result of that, Enzo versus Jen probe applies.

[00:13:34] Speaker 00:
Because the decision was not actually, whether explicitly or implicitly, the interest issue, was not resolved in that 2017 order.

[00:13:44] Speaker 03:
Would you like to reserve your remaining rebuttal time?

[00:13:47] Speaker 00:
Thank you.

[00:13:49] Speaker 03:
Mr. Kish?

[00:13:50] Speaker 01:
Good morning, Your Honors, and may it please the Court.

[00:13:53] Speaker 01:
This Court should affirm the District Court's order in its entirety.

[00:13:57] Speaker 01:
The US Supreme Court carefully drafts and amends the federal rules in order to promote the fairness and the efficiency

[00:14:07] Speaker 01:
of litigation in the federal courts.

[00:14:09] Speaker 01:
They are designed to make things faster, fairer, and simpler, not longer and more difficult.

[00:14:15] Speaker 02:
So this order was, in your view, the 2017 order was final?

[00:14:21] Speaker 01:
Yes, Your Honor.

[00:14:22] Speaker 02:
And in your view, disposed of the interest issue?

[00:14:26] Speaker 01:
Yes, Your Honor.

[00:14:27] Speaker 01:
And to the extent it didn't, it may very well be a mistake.

[00:14:30] Speaker 01:
We can make that admission.

[00:14:31] Speaker 01:
But if it was a mistake, Rule 60B required it to be timely addressed.

[00:14:36] Speaker 02:
But Rule 60B requires that the order being challenged is final, right?

[00:14:43] Speaker 02:
Yes, Your Honor.

[00:14:43] Speaker 02:
Right.

[00:14:44] Speaker 02:
So you can't say that if it was a mistake that left the order unfinal that 60B was the way to remedy it.

[00:14:51] Speaker 01:
If 60B isn't a proper remedy because we maintain it was final.

[00:14:55] Speaker 02:
Right.

[00:14:55] Speaker 02:
But if it was not final because interest had not been acted on,

[00:15:01] Speaker 02:
then 60B has no application.

[00:15:03] Speaker 02:
Would you agree with that?

[00:15:05] Speaker 01:
Yes, Your Honor.

[00:15:05] Speaker 02:
And neither does 59E.

[00:15:08] Speaker 01:
Your Honor, 59E would allow the district court, and I think 60 to an extent, would allow the district court to reconsider its prior order.

[00:15:17] Speaker 01:
So it would still be appropriate.

[00:15:19] Speaker 02:
Only if it's final.

[00:15:20] Speaker 02:
59E requires finality.

[00:15:21] Speaker 02:
Agreed?

[00:15:24] Speaker 01:
Well.

[00:15:25] Speaker 01:
I believe so.

[00:15:25] Speaker 02:
The case is a pretty much standard Hornbeck law in that.

[00:15:30] Speaker 01:
Yes, Your Honor.

[00:15:31] Speaker 01:
And to that extent, then, if there's an order or a judgment pending, there's still an obligation to bring it to the court's attention.

[00:15:38] Speaker 01:
Because at this point, the court was operating as if this was a final judgment on the merits.

[00:15:44] Speaker 01:
The court had said, enter judgment and close the case accordingly.

[00:15:48] Speaker 01:
The court entered judgment.

[00:15:50] Speaker 01:
That is a strong indicia of finality at the very least.

[00:15:54] Speaker 01:
And it should, at the very, very least,

[00:15:58] Speaker 01:
trigger something for the party to bring it to the court's attention.

[00:16:01] Speaker 01:
Because as we reference in the...

[00:16:06] Speaker 03:
we didn't require the parties bringing it to the court's attention.

[00:16:10] Speaker 03:
So why should we hear?

[00:16:12] Speaker 01:
Well, Enzo's distinguishable, as your honor properly noted, that that's a case that pertains to a pending counterclaim for indolidity, which is given particular regard in the law.

[00:16:25] Speaker 03:
But even there, in Enzo, if Mr. Dragstaff is right about the facts, and I don't have them completely familiar, so if you think he's wrong about the facts, please tell me.

[00:16:34] Speaker 03:
But if he's right about the facts and both parties purportedly told the judge that there's nothing further the judge needs to do, in that case, it's even more advantageous because such a statement could have been viewed as a waiver of the counterclaim by the party who later complained the counterclaim was not fully adjudicated.

[00:16:54] Speaker 03:
So we don't have anything here.

[00:16:56] Speaker 03:
We don't have Halo on the record saying, OK, this is a good final judgment.

[00:17:02] Speaker 03:
Two thumbs up.

[00:17:02] Speaker 03:
Go ahead and move forward.

[00:17:04] Speaker 01:
Your Honor, ENSO is distinguishable on two grounds.

[00:17:08] Speaker 01:
First, even if it was not a final judgment on the merits, the order was entered on July 28, 2004, and the appeal was filed on August 20, 2004.

[00:17:22] Speaker 01:
It acted timely and within the time prescribed for an ordinary appeal.

[00:17:27] Speaker 01:
They did address the issue in a timely fashion.

[00:17:29] Speaker 01:
That's not what happened here.

[00:17:31] Speaker 01:
Three years went by.

[00:17:33] Speaker 01:
without any action.

[00:17:35] Speaker 01:
And to the extent that that inaction was caused by the procedural posture of this being up on appeal and then coming back down, opposing counsel suggested today that we could reserve certain issues, remand it to the district court, allow a determination, bring it back up.

[00:17:50] Speaker 01:
That procedure is outlined by the rules.

[00:17:52] Speaker 01:
That's Federal Rule of Civil Procedure 62.1 for an indicative ruling.

[00:17:57] Speaker 01:
and Federal Rule of Appellate Procedure 12.1.

[00:18:00] Speaker 01:
That was available in 2016 when the issue of prejudgment interest was outstanding and on appeal.

[00:18:08] Speaker 01:
an indicative ruling at that time.

[00:18:10] Speaker 01:
And then we would have closed that loop in the appeal back in 2016.

[00:18:14] Speaker 01:
And the decision in 2017 would have addressed prejudgment interest.

[00:18:19] Speaker 01:
We wouldn't be here.

[00:18:21] Speaker 01:
Enzo is also distinguishable because in Ohio, Willow Wood Company, Federal Circuit Opinion 2011 by

[00:18:29] Speaker 01:
then Judge Moore, now Chief Judge Moore, this court recognized the importance placed on these invalidity counterclaims, citing Cardinal Company v. Morton International, a US Supreme Court case out of 1993.

[00:18:43] Speaker 01:
The court acknowledged that in Cardinal Chemical, the Supreme Court held the public interest was so high in determining the validity of

[00:18:55] Speaker 01:
in determining invalidity counterclaims, that the Federal Circuit must consider a validity determination on appeal, even if the court concludes that the defendant does not infringe the patent at issue.

[00:19:08] Speaker 01:
Even where historically these claims were being dismissed for mootness,

[00:19:13] Speaker 01:
The Supreme Court had said, no, you need to adjudicate the invalidity counterclaim.

[00:19:18] Speaker 01:
The Supreme Court has never had a similar public policy with regard to prejudgment interest.

[00:19:23] Speaker 03:
Prejudgment interest is or is not a form of damages?

[00:19:26] Speaker 01:
It is a component of damages.

[00:19:28] Speaker 03:
So prejudgment interest is a form of damages.

[00:19:31] Speaker 03:
Don't you think that when a party is adjudicated to be a responsible party and damages are on the table as necessary, the court is obligated to actually assess damages?

[00:19:43] Speaker 01:
Your Honor, I would agree with that.

[00:19:45] Speaker 03:
So it seems like damages feels, to me, awfully important, kind of like validity.

[00:19:51] Speaker 03:
In a situation here, you've got a scenario where guilt was adjudicated.

[00:19:55] Speaker 03:
Damages were entitled.

[00:19:58] Speaker 03:
In fact, they raised a motion for prejudgment damages.

[00:20:01] Speaker 03:
The court says in the docket entry it intends to issue an order.

[00:20:05] Speaker 03:
There actually doesn't seem to be any dispute among the parties that prejudgment interest was something they were, in fact, entitled to.

[00:20:12] Speaker 01:
Yes, Your Honor.

[00:20:12] Speaker 03:
As a component of damages.

[00:20:13] Speaker 01:
Yes, Your Honor.

[00:20:14] Speaker 03:
And yet they somehow just didn't get it.

[00:20:16] Speaker 03:
Yes, Your Honor.

[00:20:18] Speaker 03:
So I think that...

[00:20:20] Speaker 03:
I'm not sure that I find a lot of room between this case and Enzo, but I am wondering whether or not the room, meaning I don't find any room in your argument that somehow this issue is less important than the issue was in Enzo or in Ohio Willow or any other case.

[00:20:38] Speaker 03:
But I guess what I'm wondering is about what about failure to prosecute or latches, and do we have

[00:20:45] Speaker 03:
resolution below that is sufficiently ripe on appeal for us to make a determination that the three-year delay here is so long as their ability to continue to demand so

[00:21:03] Speaker 01:
I have two-part answer to that question, Your Honor.

[00:21:06] Speaker 01:
And first is directly to the question of latches.

[00:21:10] Speaker 01:
I believe this Court has enough in the record, and the problem has been preserved for the purposes of appeal, that this Court can determine that there is a failure to prosecute and latches.

[00:21:20] Speaker 01:
There was, as Your Honor indicated,

[00:21:23] Speaker 01:
status conference in September of 2016, and then no further mention.

[00:21:28] Speaker 01:
Under the District of Nevada's local rules, specifically local rule IA 7-1A,

[00:21:35] Speaker 01:
litigants can send a letter to the court after 90 days requesting it.

[00:21:40] Speaker 03:
Well, let me just tell you.

[00:21:40] Speaker 03:
You want me to resolve, in the first instance, a question that makes me interpret and understand Nevada rule, blah, blah, blah, 1A little i467.

[00:21:50] Speaker 03:
Does that not seem like something maybe I ought not to do?

[00:21:54] Speaker 03:
Especially a local rule can be waived by a district court judge, can it not?

[00:21:58] Speaker 01:
It certainly can, Your Honor.

[00:21:59] Speaker 03:
So given that Latches is an equitable question over what judges have enormous amounts of discretion,

[00:22:05] Speaker 03:
Doesn't it seem improvident at the least for an appellate court to dive into a court's local rules and to side lashes in the first instance?

[00:22:15] Speaker 01:
I can't agree to that, Your Honor, but if the court need not reach the local rule issue, because ultimately that just goes to whether or not they diligently prosecuted the issue of prejudgment interest.

[00:22:28] Speaker 01:
In terms of the finding below, Judge Gordon, as Judge

[00:22:32] Speaker 01:
Bryson, properly indicated, made all of the appropriate findings for latches, found that there was an inordinate passage of time, three years, found that there was prejudice because Pulse had been sold.

[00:22:45] Speaker 01:
The new owners took it with knowledge and understanding that the judgment was final.

[00:22:49] Speaker 01:
Time had passed.

[00:22:50] Speaker 01:
There was on the docket a separate line item saying, judgment.

[00:22:54] Speaker 01:
That is enough in the record to find latches

[00:22:58] Speaker 01:
And to the extent we know.

[00:23:00] Speaker 03:
Did he actually find prejudice, or did he just acknowledge the company was sold?

[00:23:05] Speaker 01:
Acknowledge that the company was sold and that they had a right to rely on the determination of finality, the appearance of finality at the very least, even if it wasn't.

[00:23:18] Speaker 03:
You're probably right.

[00:23:19] Speaker 03:
Just direct me to where in the opinion he said that.

[00:23:24] Speaker 01:
So if we don't.

[00:23:25] Speaker 02:
Appendix page 2 is the judge's order, the last paragraph of this.

[00:23:31] Speaker 02:
Yep.

[00:23:33] Speaker 02:
Thank you.

[00:23:33] Speaker 02:
The last sentence, in fact.

[00:23:35] Speaker 03:
Yeah, he actually goes so far as to say unfair, right?

[00:23:39] Speaker 01:
Yes, Your Honor.

[00:23:39] Speaker 01:
So I believe that is sufficient for this Court to reach the issue of latches.

[00:23:43] Speaker 01:
But on a more fundamental level, the question of whether or not damages were fully resolved doesn't.

[00:23:51] Speaker 03:
Is there some?

[00:23:52] Speaker 03:
period during which questions like, because this has got to be a matter of regional circuit law, not federal circuit law, this question of at what point in time it becomes too late to revisit a final judgment that is somehow potentially deficient.

[00:24:09] Speaker 03:
So is there evidence that you have presented or cases that you have briefed regarding how long a period the regional circuit, in this case, District of Nevada,

[00:24:20] Speaker 03:
I don't even know what circuit that is.

[00:24:22] Speaker 03:
What circuit is that?

[00:24:23] Speaker 03:
9th.

[00:24:23] Speaker 03:
9th Circuit.

[00:24:23] Speaker 03:
OK.

[00:24:24] Speaker 03:
Does the district, does the 9th Circuit have cases on sort of a presumption of latches after x period of time or anything like that?

[00:24:33] Speaker 01:
Not to my knowledge.

[00:24:34] Speaker 01:
That portion of latches was not fully briefed.

[00:24:37] Speaker 01:
But I don't think the court needs to necessarily reach latches, because the issue of damages does not preclude finality.

[00:24:45] Speaker 02:
What would you say about the Penn West case from the 3rd Circuit?

[00:24:49] Speaker 02:
in which the majority said this case is not over and sent it back to the district court.

[00:24:57] Speaker 02:
Justice Alito then on the Court of Appeals dissented and said, please, this really should be treated as ended.

[00:25:05] Speaker 02:
But that was in dissent.

[00:25:07] Speaker 01:
So Penn West is distinguishable because that is a case in which the parties apprised to the district court that there had been a settlement when there had not been.

[00:25:17] Speaker 01:
The facts are entirely different there, because the court entered judgment close to the case believing a fact to be untrue, like believing that the parties had settled when no such agreement had been reached, whereas this one is the court making a conscious decision to adjudicate the claims and, in its estimation, end the litigation.

[00:25:36] Speaker 01:
The more apropos.

[00:25:38] Speaker 02:
It's very difficult, and I think you

[00:25:40] Speaker 02:
essentially acknowledged this earlier, that it's very difficult to conclude, given all the background in this case, that this judge decided sometime between the time he asked the parties to brief, he decided that prejudgment interest was appropriate.

[00:25:55] Speaker 02:
He asked the parties to get together and try to come up with a number.

[00:25:59] Speaker 02:
And if they couldn't, then to brief what the right number would be, and then suddenly decided later, no, the number is zero.

[00:26:06] Speaker 02:
That seems to me to say that this is a case in which he decided the right number zero.

[00:26:13] Speaker 02:
It seems to me to blink the facts.

[00:26:17] Speaker 02:
a reality in any event.

[00:26:19] Speaker 01:
So the district court is entitled to set the amount of prejudgment interest pursuant to 35 USC 284.

[00:26:29] Speaker 01:
Excuse me.

[00:26:30] Speaker 03:
Is your argument, like Judge Bryson just articulated, that you believe the 2017 order implicitly decides that $0 are awarded, or is your argument

[00:26:41] Speaker 03:
that the 2017 order may well have inadvertently left off an issue, i.e.

[00:26:47] Speaker 03:
prejudgment interest.

[00:26:48] Speaker 03:
But the opposing side let it go and never raised it like they should have.

[00:26:53] Speaker 01:
Your Honor, those are both of our arguments in the alternative.

[00:26:57] Speaker 03:
And I will- So you are arguing then that the 2017 order

[00:27:02] Speaker 03:
sub silencio decided that $0 of prejudgment interest were warranted.

[00:27:08] Speaker 01:
In this circumstance?

[00:27:10] Speaker 03:
In this circumstance where both of you agree prejudgment interest was, in fact, warranted at an above zero level, you think, nonetheless, the district court decided it was zero.

[00:27:21] Speaker 01:
And to that point, Your Honor, HALO or Pulse never agreed that prejudgment interest was warranted.

[00:27:27] Speaker 01:
HALO and Pulse.

[00:27:29] Speaker 01:
But the judge did.

[00:27:30] Speaker 02:
The judge did, yes, Your Honor.

[00:27:32] Speaker 02:
the numbers going to be between this and this, and go figure it out.

[00:27:36] Speaker 01:
Yes, Your Honor.

[00:27:37] Speaker 01:
And in 2016, when Judge Gordon made that determination, HALO had already, or PULSE, excuse me, had already objected to the timeliness issue.

[00:27:47] Speaker 01:
pre-judgment interest should have been brought as a matter of Ninth Circuit law, as a Rule 59e motion, within 28 days of the judgment.

[00:27:55] Speaker 01:
And that didn't happen.

[00:27:56] Speaker 01:
So that pre-judgment interest wasn't appropriate.

[00:27:58] Speaker 01:
Judge Gordon may very well have implicitly or at sub silencio made that determination.

[00:28:05] Speaker 01:
But even if it was a mistake, even if it was a mistake that rose the level of voiding the judgment,

[00:28:11] Speaker 01:
Rule 59E and 60B required a timely motion to amend that.

[00:28:16] Speaker 01:
And the interest of damages on prejudgment interest does not avoid finality.

[00:28:23] Speaker 01:
Because if you look at the red brief at page 25, we cite Brigham versus the secretary of the Department of Health and Human Services.

[00:28:33] Speaker 01:
This court's decision in 95.

[00:28:35] Speaker 01:
where the omission of pain and suffering damages to which a party was entitled did not preclude finality.

[00:28:45] Speaker 01:
The decision in Pandrol is similarly instructive.

[00:28:50] Speaker 01:
Thank you, Your Honor.

[00:28:55] Speaker 03:
Mr. Dragseth, you have some rebuttal time?

[00:28:58] Speaker 00:
Yes, thank you.

[00:28:59] Speaker 00:
I think the panel pretty well understands the issues here.

[00:29:02] Speaker 00:
Let's get a few points.

[00:29:04] Speaker 00:
I heard radium.

[00:29:04] Speaker 00:
I don't see a radium in the brief.

[00:29:07] Speaker 00:
There's a lot going on today that hasn't gone on until today in this case.

[00:29:11] Speaker 00:
Latches was never argued by them, never decided at the court.

[00:29:16] Speaker 00:
Any fact findings the court made

[00:29:18] Speaker 00:
We're in the context of saying, does HALO meet the heavy burden of overcoming a final judgment?

[00:29:26] Speaker 00:
If you flip it around and say there was no final judgment, the weighing is completely different.

[00:29:30] Speaker 00:
This is not something that should be done on appeal.

[00:29:33] Speaker 00:
Other things that were new, Federal Rule of Procedure 12.1, indicative rulings, I don't think that's in their brief.

[00:29:39] Speaker 00:
Ohio Willow, no, there's nothing about that in their brief.

[00:29:42] Speaker 00:
Local Rule IA7IA, that's not in their brief.

[00:29:48] Speaker 00:
Let me see.

[00:29:51] Speaker 00:
The sub silencio ruling of the court on September 6, that's not in the brief, even though in our blue brief, we spent about six pages talking about why the judge did not implicitly find.

[00:30:02] Speaker 00:
If you remember, we gave little pictures of the order and said the order was focused only on enhancement, nothing about interest.

[00:30:09] Speaker 00:
And as the panel, I think, understands, there's no way he could have silently ruled when he already said we should get some interest and then silently not afford us any.

[00:30:19] Speaker 00:
Penn West, brand new distinction over Penn West.

[00:30:24] Speaker 00:
And then finally, Your Honor, on Enzo, I do have the factual question you have on Enzo quickly.

[00:30:34] Speaker 00:
The court says,

[00:30:37] Speaker 00:
At page 1378, and this is in regard to the summary judgment argument, I'll clean up quickly.

[00:30:43] Speaker 00:
Both counsel responded, this is at the summary judgment argument, that the court had covered all the issues raised, and Enzo's counsel indicated that it would appeal the decision.

[00:30:53] Speaker 00:
Now our position is that when this court got Enzo, it said, well, I recognize all this kind of blame game going on in Enzo.

[00:31:02] Speaker 00:
But then the court says, it doesn't really matter.

[00:31:05] Speaker 00:
It said.

[00:31:06] Speaker 00:
We know that that leaves a trial judge with the impression that no claim remain in this case.

[00:31:12] Speaker 00:
But we have no choice but to take cognizance of the nonfinality created by the unquestioned existence of that counterclaim.

[00:31:21] Speaker 00:
Our claim unquestionably still existed, as this court held in the previous appeal.

[00:31:27] Speaker 00:
We heard a distinction.

[00:31:29] Speaker 00:
Thank you.

[00:31:30] Speaker 03:
OK, Mr. McSeth, I've waited for you to take a breath.

[00:31:31] Speaker 03:
But apparently, you can go on for a very long time without breathing.

[00:31:34] Speaker 03:
Thank you