Nutrition Distribution LLC v. Ironmag Labs, LLC

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

NUTRITION DISTRIBUTION LLC, an No. 19-55251

Arizona Limited Liability Company,

Plaintiff-Appellant, D.C. No.

2:15-cv-08233-

v. R-JC

IRONMAG LABS, LLC, a Nevada

Limited Liability Company; ROBERT OPINION

DIMAGGIO, an individual; IRON MAG

RESEARCH, a Nevada limited liability

company,

Defendants-Appellees.

Appeal from the United States District Court

for the Central District of California

Manuel L. Real, District Judge, Presiding

Submitted May 5, 2020 *

Pasadena, California

Filed August 25, 2020

Before: Milan D. Smith, Jr., Bridget S. Bade, and

Daniel A. Bress, Circuit Judges.

Opinion by Judge Bress

*

The panel unanimously concludes this case is suitable for decision

without oral argument. See Fed. R. App. P. 34(a)(2).

2 NUTRITION DISTRIBUTION V. IRONMAG LABS

SUMMARY **

Appellate Jurisdiction / Attorneys’ Fees

The panel dismissed as untimely plaintiff’s appeal from

the district court’s judgment and affirmed the district court’s

post-judgment denial of attorneys’ fees in an action under

the Lanham Act.

On November 16, 2018, on cross motions for summary

judgment, the district court rejected plaintiff’s claim for

monetary relief, issued an injunction in favor of plaintiff, and

denied plaintiff’s request for attorneys’ fees under the

Lanham Act. On December 13, 2018, the district court

issued findings of fact and conclusions of law and entered

judgment. On December 27, 2018, plaintiff moved for

attorneys’ fees under Federal Rule of Civil Procedure 54(d).

The district court denied the post-judgment fees motion on

January 30, 2019, and plaintiff filed a notice of appeal on

March 1, 2019, within 30 days of the ruling on the fees

motion.

Under Federal Rule of Appellate Procedure 4(a)(1)(A),

a notice of appeal must be filed within 30 days after entry of

the judgment or order appealed from. The panel held that

the notice of appeal was untimely as to the district court’s

judgment because the motion for attorneys’ fees did not

itself extend the time to appeal, and the district court did not

enter an order extending the time pursuant to Rule 58.

Further, agreeing with the Sixth Circuit, the panel held that

**

This summary constitutes no part of the opinion of the court. It

has been prepared by court staff for the convenience of the reader.

NUTRITION DISTRIBUTION V. IRONMAG LABS 3

the fees motion could not be recharacterized as a Rule 59

motion to alter or amend the judgment for purposes of

extending the time to appeal.

The panel held that the notice of appeal was timely as to

the district court’s later order denying attorneys’ fees. The

panel held that the district court properly exercised its

discretion in denying fees under the Lanham Act, which

allows an award of attorneys’ fees in exceptional cases.

COUNSEL

Robert Tauler, Tauler Smith LLP, Los Angeles, California,

for Plaintiff-Appellant.

Treg A. Julander, Ostergar Law Group PC, Irvine,

California, for Defendants-Appellees.

OPINION

BRESS, Circuit Judge:

Although appellant did not file this appeal to present the

question whether its notice of appeal was timely, that is now

the principal issue we must resolve. Generally, a notice of

appeal in a civil case must be filed “within 30 days after

entry of the judgment or order appealed from.” Fed. R. App.

P. 4(a)(1)(A). After the district court entered judgment in

this case, appellant could have filed a notice of appeal within

30 days but did not. Instead, appellant filed a post-judgment

motion for attorneys’ fees under Federal Rule of Civil

Procedure 54(d) and then filed a notice of appeal 30 days

after the district court denied that fees motion. The notice of

4 NUTRITION DISTRIBUTION V. IRONMAG LABS

appeal purported to appeal both the later denial of fees and

the underlying judgment, which by that point had been

entered 78 days prior.

We hold that the notice of appeal was untimely as to the

district court’s underlying judgment. The Federal Rules are

clear that “[o]rdinarily, the entry of judgment may not be

delayed, nor the time for appeal extended, in order to tax

costs or award fees.” Fed. R. Civ. P. 58(e). A motion for

attorneys’ fees does not extend the time to appeal the

underlying judgment unless the district court so orders under

Rule 58(e). In this case, appellant did not seek such an order,

nor did the district court enter one. Appellant’s attempt to

now save its untimely appeal of the underlying judgment by

recasting its fees motion as a Rule 59 motion to alter or

amend the judgment likewise fails. The 1993 amendments

to the Federal Rules and the Supreme Court precedent that

gave rise to them make clear that attorneys’ fees motions

cannot be recharacterized as Rule 59 motions to extend the

time to appeal an underlying judgment.

Because appellant did not file a notice of appeal within

30 days of the district court’s judgment or obtain a Rule

58(e) order extending the time to appeal, the notice of appeal

was untimely as to the district court’s underlying judgment.

The notice of appeal was timely as to the district court’s later

order denying attorneys’ fees. We affirm the denial of fees,

and otherwise dismiss the appeal for lack of jurisdiction.

I

Appellant Nutrition Distribution LLC filed over eighty

false advertising lawsuits between 2015 and 2018. This is

one of them. Here, Nutrition Distribution alleged that

Appellee IronMag Labs, LLC violated the Lanham Act,

15 U.S.C. §§ 1051–1141n, by falsely advertising IronMag’s

NUTRITION DISTRIBUTION V. IRONMAG LABS 5

nutritional supplements as having “no toxicity” or

“unwanted side effects.”

Following discovery, the parties cross moved for

summary judgment. On November 16, 2018, the district

court granted in part and denied in part the motions. The

district court rejected Nutrition Distribution’s claim for

monetary relief because there was “no genuine dispute of

fact regarding whether [Nutrition Distribution] ha[d] shown

any injury caused by” IronMag’s advertising. But the

district court issued an injunction because IronMag’s

statements were likely to deceive consumers. In the same

order, the district court denied Nutrition Distribution’s

request for attorneys’ fees, finding that the case was not

“exceptional,” as required for an award of fees under the

Lanham Act. See 15 U.S.C. § 1117(a).

On December 13, 2018, the district court issued findings

of fact and conclusions of law consistent with its November

16, 2018 order. The district court also entered judgment that

same day in a separate document. See Fed. R. Civ. P. 58(a).

Nutrition Distribution did not file a notice of appeal at this

time.

Instead, on December 27, 2018, Nutrition Distribution

filed a motion for attorneys’ fees under Federal Rule of Civil

Procedure 54(d). Like its prior fee request, Nutrition

Distribution argued that the case was “exceptional” under

the Lanham Act. The district court denied Nutrition

Distribution’s post-judgment fees motion on January 30,

2019.

Nutrition Distribution filed a notice of appeal on

March 1, 2019, within 30 days of the ruling on the fees

motion. The notice of appeal purported to appeal both the

district court’s underlying December 13, 2018 judgment and

6 NUTRITION DISTRIBUTION V. IRONMAG LABS

its January 30, 2019 denial of attorneys’ fees. In this court,

IronMag moved to dismiss the appeal as untimely. After a

motions panel denied that request without prejudice,

IronMag renewed the argument in its answering brief.

II

“A timely notice of appeal is a non-waivable

jurisdictional requirement.” Stephanie-Cardona LLC v.

Smith’s Food & Drug Ctrs., Inc., 476 F.3d 701, 703 (9th Cir.

2007). If the time to appeal ran from the December 13, 2018

entry of judgment, Nutrition Distribution’s appeal of that

judgment is untimely. If, however, the time to appeal was

extended until the district court disposed of Nutrition

Distribution’s motion for attorneys’ fees, its appeal of the

underlying judgment is timely.

We hold that Nutrition Distribution’s appeal of the

December 13, 2018 judgment is untimely and dismiss it for

lack of jurisdiction. We take this opportunity to address the

rules and precedents that compel this conclusion, for the

benefit of litigants who wish to ensure the timeliness of their

appeals in cases involving post-judgment motions for

attorneys’ fees.

A

The Federal Rules of Appellate and Civil Procedure

work in combination to set forth the rules governing when

notices of appeal must be filed. Typically, a notice of appeal

in a civil case “must be filed with the district clerk within

30 days after entry of the judgment or order appealed from.”

Fed. R. App. P. 4(a)(1)(A). The time to appeal generally

runs from the entry of judgment. Fed. R. App. P.

4(a)(7)(A)(ii); see Fed. R. Civ. P. 58(a).

NUTRITION DISTRIBUTION V. IRONMAG LABS 7

But rules often have exceptions. As relevant here,

Federal Rule of Appellate Procedure 4(a) specifies that the

time to file a notice of appeal is extended if a party timely

files certain qualifying motions in the district court:

(A) If a party files in the district court any of

the following motions under the Federal

Rules of Civil Procedure—and does so

within the time allowed by those rules—the

time to file an appeal runs for all parties from

the entry of the order disposing of the last

such remaining motion:

...

(iii) for attorney’s fees under Rule 54 if

the district court extends the time to

appeal under Rule 58; [or]

(iv) to alter or amend the judgment under

Rule 59;

....

Fed. R. App. P. 4(a)(4)(A).

Rule 4(a)(4)(A) lists various other qualifying motions,

but for ease of exposition we have quoted above the ones

that matter here. It is important to see that this Rule treats

motions for attorneys’ fees differently from other qualifying

motions, the filing of which extends the time to appeal: an

attorneys’ fees motion, unlike the other motions listed,

requires additional action by the district court. Specifically,

the time to file an appeal runs from the denial of an

attorneys’ fees motion “if the district court extends the time

to appeal under Rule 58.” Fed. R. App. P. 4(a)(4)(A)(iii)

8 NUTRITION DISTRIBUTION V. IRONMAG LABS

(emphasis added). That is a reference to Federal Rule of

Civil Procedure 58(e), which states:

Ordinarily, the entry of judgment may not be

delayed, nor the time for appeal extended, in

order to tax costs or award fees. But if a

timely motion for attorney’s fees is made

under Rule 54(d)(2), the court may act before

a notice of appeal has been filed and become

effective to order that the motion have the

same effect under Federal Rule of Appellate

Procedure 4(a)(4) as a timely motion under

Rule 59.

Fed. R. Civ. P. 58(e).

Together, Rule 58(e) and Federal Rule of Appellate

Procedure 4(a)(4)(A)(iii) give district courts the ability to

ensure that an attorneys’ fees request is treated like a Rule

59 motion for purposes of extending the time for filing a

notice of appeal. See, e.g., Ray Haluch Gravel Co. v. Cent.

Pension Fund of Int’l Union of Operating Eng’rs &

Participating Emps., 571 U.S. 177, 186–87 (2014); Moody

Nat’l Bank of Galveston v. GE Life & Annuity Assurance

Co., 383 F.3d 249, 252–53 (5th Cir. 2004). As noted above,

filing a Rule 59 motion extends the time for filing a notice

of appeal, so that the deadline to appeal runs from the order

disposing of the Rule 59 motion. See Fed. R. App.

P. 4(a)(4)(A)(iv).

Rule 58(e) was added to the Federal Rules in 1993. 1 As

the Advisory Committee explained, “[t]his revision permits,

1

The 1993 amendments housed this provision in Rule 58(c)(2), but

it was later relocated to Rule 58(e) by the 2007 amendments to the

NUTRITION DISTRIBUTION V. IRONMAG LABS 9

but does not require, the court to delay the finality of the

judgment for appellate purposes under revised Fed. R. App.

P. 4(a) until the fee dispute is decided.” Fed. R. Civ. P. 58,

adv. comm. note (1993). To obtain such an extension

“requires entry of an order by the district court before the

time a notice of appeal becomes effective for appellate

purposes.” Id. The upshot is that a motion for attorneys’

fees does not extend the time to appeal “unless a district

court, acting under Rule 58, enters an order extending the

time for appeal.” Fed. R. App. P. 4, adv. comm. note (1993);

see also Stephanie-Cardona, 476 F.3d at 705 (“The time to

appeal is not extended unless the district court, pursuant to

its authority under Fed. R. Civ. P. 58[(e)], orders that an

attorney’s fees motion has the effect of delaying the clock

for filing the notice of appeal.”); Moody, 383 F.3d at 252 (“In

1993, Appellate Rule 4(a)(4) was amended to include among

the motions that will toll the time for filing a notice of appeal

motions for attorney’s fees under Rule 54 if the district court

extends the time to appeal under Rule 58.”).

Once judgment is entered, and absent the filing of a

different qualifying motion that would extend the time for

filing a notice of appeal, a party who has moved for

attorneys’ fees has two main options for ensuring a timely

appeal of the underlying judgment:

First, [a party] may appeal the fee award as it

would any final judgment. . . . If the party

ha[s] also appealed the underlying merits

judgment—as is usually the case—the two

appeals would proceed independently, but

Federal Rules. See Heck v. Triche, 775 F.3d 265, 275 n.9 (5th Cir. 2014).

For ease of reference, we refer to the rule as Rule 58(e) throughout this

opinion.

10 NUTRITION DISTRIBUTION V. IRONMAG LABS

either party could petition for consolidation

[in the court of appeals]. Second, the party

could move under Fed. R. Civ. P. 58 to

enlarge the time to appeal the underlying

judgment until the fee judgment is rendered.

The party could then appeal the merits

judgment and the fee award together.

Cal. Med. Ass’n v. Shalala, 207 F.3d 575, 576 (9th Cir.

2000) (citations omitted). The first option requires two

notices of appeal, the second option just one.

Perhaps due to a healthy lawyerly paranoia for missing

deadlines, common experience indicates that many litigants

choose the first option. Consolidating the appeals in this

circumstance is straightforward, and there is no penalty for

timely (but separately) appealing a judgment and a later-

issued fee decision. See Fed. R. App. P. 4(a)(4)(B)(i). 2

2

Premature notices of appeal once created serious problems. Before

1993, the Federal Rules of Appellate Procedure provided that a notice of

appeal “shall have no effect” if it was filed before the district court ruled

on a qualifying post-judgment motion that extended the time to appeal.

Fed. R. App. P. 4(a)(4)(A) (1979). This created a “dire trap for the

unwary,” because a litigant who failed to file a new notice of appeal after

a post-judgment motion was adjudicated “lost [its] chance to appeal.”

16A Charles Alan Wright et al., Federal Practice & Procedure § 3950.4,

at 366 (5th ed. 2019) (“Wright & Miller”); see also Orr v. Plumb,

884 F.3d 923, 927 (9th Cir. 2018) (explaining that confusion over a

judgment’s finality “could have harsh consequences, particularly with

the rule then in effect that a premature notice of appeal was ineffectual

if certain post-decision motions were also filed”). The 1993 amendments

to the Federal Rules cured this problem by allowing a previously-filed

notice of appeal to become effective after the district court’s adjudication

of a qualifying post-judgment motion. See Fed. R. App. P. 4(a)(4)(B)(i);

Fed. R. App. P. 4(a)(2); Wright & Miller § 3950.4, at 366–67. As

NUTRITION DISTRIBUTION V. IRONMAG LABS 11

B

Nutrition Distribution did not file a notice of appeal

within 30 days of the district court’s December 13, 2018

judgment. Nutrition Distribution also did not file a motion

under Rule 58(e) seeking an order that the time to appeal

should run from the disposition of its post-judgment

attorneys’ fees motion. Nor did the district court enter such

an order. This leaves Nutrition Distribution in the

unenviable position of asking that its motion for attorneys’

fees—which was clearly styled as such and requested fees

under Rule 54(d)—be recharacterized as a motion to alter or

amend the judgment under Rule 59.

Our cases allow us to reconstrue a motion filed in the

district court as part of ascertaining whether an appeal is

timely. See, e.g., United States ex rel. Hoggett v. Univ. of

Phx., 863 F.3d 1105, 1108 (9th Cir. 2017) (“A motion’s

‘nomenclature is not controlling.’ Instead, ‘we construe [the

motion], however styled, to be the type proper for the relief

requested.’”) (alteration in original) (quoting Miller v.

Transamerican Press, Inc., 709 F.2d 524, 527 (9th Cir.

1983)). And if Nutrition Distribution’s Rule 54(d) motion

for attorneys’ fees could be recharacterized as a Rule 59

motion, the appeal of the district court’s underlying

judgment would be timely, because a Rule 59 motion

extends the time for filing an appeal. Fed. R. App. P.

4(a)(4)(A)(iv).

It should be clear that Nutrition Distribution’s argument,

if accepted, would facilitate an end-run around Rule 58(e).

discussed below, several of the older precedents involving Rule 59 were

decided in the prior regime in which premature notices of appeal were

ineffective.

12 NUTRITION DISTRIBUTION V. IRONMAG LABS

Rather than having to seek the district court’s permission

that the time to file a notice of appeal run from the later

disposition of the post-judgment fees motion, see Fed. R.

Civ. P. 58(e), Nutrition Distribution would grant itself an

extension through the expedient of recharacterizing its own

motion for attorneys’ fees. The whole point of Rule 58(e) is

to allow—but not require—district courts to treat attorneys’

fees motions as having “the same effect” as a Rule 59 motion

for purposes of filing a notice of appeal. Ray Haluch Gravel

Co., 571 U.S. at 186–87. Nutrition Distribution would

instead make Rule 58(e)’s procedure advisory. It is hard to

imagine this is what the drafters of the 1993 amendments to

the Federal Rules had in mind.

But, as it happens, this is not what they had in mind: the

1993 amendments to the Federal Rules are based on

Supreme Court cases that make clear that attorneys’ fees

motions cannot be recharacterized as Rule 59 motions to

alter or amend the judgment. In White v. New Hampshire

Department of Employment Security, 455 U.S. 445 (1982),

the Supreme Court rejected the view that a post-judgment

motion for attorneys’ fees under 42 U.S.C. § 1988 was a

motion to alter or amend the judgment under Rule 59. The

Court held that “[a] motion for attorney’s fees is unlike a

motion to alter or amend a judgment” because “[i]t does not

imply a change in the judgment, but merely seeks what is

due because of the judgment.” Id. at 452 (quotations

omitted). For this reason, “the federal courts generally have

invoked Rule 59(e) only to support reconsideration of

matters properly encompassed in a decision on the merits.”

Id. at 451. Unlike a post-judgment motion on the merits, “a

request for attorney’s fees under § 1988 raises legal issues

collateral to the main cause of action—issues to which Rule

59(e) was never intended to apply.” Id.

NUTRITION DISTRIBUTION V. IRONMAG LABS 13

Several years later, in Buchanan v. Stanships, Inc.,

485 U.S. 265 (1988) (per curiam), the Supreme Court held

that a post-judgment motion for costs could not be treated as

a Rule 59 motion to alter or amend the judgment. Relying

on White, the Court explained that like fees, the

“[a]ssessment of such costs does not involve reconsideration

of any aspect of the decision on the merits.” Id. at 268. The

Supreme Court made clear that the Federal Rules reflected

“[a] sharp distinction between the judgment on the merits

and an award of costs under Rule 54(d),” reiterating that “a

request for costs raises issues wholly collateral to the

judgment in the main cause of action.” Id. at 268–69.

Building further on White, the Supreme Court made this

same point again in Budinich v. Becton Dickinson & Co.,

486 U.S. 196 (1988), holding that a post-judgment motion

for attorneys’ fees did not prevent a judgment from

becoming final. It is “indisputable,” the Court explained,

“that a claim for attorney’s fees is not part of the merits of

the action to which the fees pertain.” Id. at 200. For that

reason, “[c]ourts and litigants are best served by the bright-

line rule, which accords with traditional understanding, that

a decision on the merits is a ‘final decision’ for purposes of

[28 U.S.C.] § 1291 whether or not there remains for

adjudication a request for attorney’s fees attributable to the

case.” Id. at 202–03.

Our precedents are in accord, recognizing “Budinich’s

emphasis on the need for a bright-line rule” based on the

overarching principle that attorneys’ fees “associated with

the litigation at hand are indeed always collateral.” U.S. for

Use & Benefit of Familian Nw., Inc. v. RG & B Contractors,

Inc., 21 F.3d 952, 955 (9th Cir. 1994) (emphasis added).

Indeed, we had reached substantially the same conclusion

even before Budinich was decided.

14 NUTRITION DISTRIBUTION V. IRONMAG LABS

In Durham v. Kelly, 810 F.2d 1500 (9th Cir. 1987), a

district court entered final judgment on the merits and

simultaneously ordered the parties to bear their own costs.

Id. at 1502. The plaintiff then filed a post-judgment motion

for costs under Rules 54 and 59 and a notice of appeal, and

the district court ruled on the costs request. Id. As noted

above, ante at 10 n.2, at the time the Federal Rules provided

that if a party filed a Rule 59 motion, a notice of appeal filed

before a ruling on that motion “shall have no effect.” Fed.

R. App. P. 4(a)(4)(A) (1979). The question in Durham was

thus whether the plaintiff should have filed a second notice

of appeal because its costs motion was styled as a motion

under Rule 59.

Relying on White, we held that the costs motion was not

a Rule 59 motion. And we “adopt[ed] as the law of this

circuit the rule that a motion to alter or amend a judgment to

award costs does not come within Rule 59(e).” Durham,

810 F.2d at 1503. Of note, the Supreme Court in Buchanan

identified Durham as being on the prevailing side of the

circuit split that the Court addressed in that case. See

Buchanan, 485 U.S. at 267.

The Supreme Court precedent discussed above provides

the basis for the current state of the Federal Rules.

Following Budinich, the Federal Rules were amended in

1993 to codify Budinich’s bright-line rule. The addition of

Federal Rule of Civil Procedure 58(e) and related changes to

Federal Rule of Appellate Procedure 4(a)(4) make plain that

a motion for attorneys’ fees will not extend the time to appeal

unless the district court specifically says so. As the 1993

Advisory Committee Notes to Federal Rule of Appellate

Procedure 4(a)(4) explained, “[t]o conform to a recent

Supreme Court decision, however—Budinich v. Becton

Dickinson and Co., 486 U.S. 196 (1988)—the amendment

NUTRITION DISTRIBUTION V. IRONMAG LABS 15

excludes motions for attorney’s fees from the class of

motions that extend the filing time unless a district court,

acting under Rule 58, enters an order extending the time for

appeal.” Fed. R. App. P. 4, adv. comm. note (1993); see also

Fed. R. Civ. P. 58, adv. comm. note (1993) (citing Budinich

as the background to the addition of Rule 58(e)); Heck,

775 F.3d at 273 (“In 1993, Congress amended FRAP 4(a)(4)

to conform to Budinich.”).

Under this framework, Nutrition Distribution’s post-

judgment motion for attorneys’ fees cannot be treated as a

Rule 59 motion to alter or amend the judgment. The text of

the relevant rules distinguishes between motions for

attorneys’ fees under Rule 54 and motions under Rule 59.

See Fed. R. App. P. 4(a)(4)(A)(iii)–(iv); Fed. R. Civ. P.

58(e). And White, Buchanan, and Budinich establish that

Rule 59 does not extend to issues “collateral” to the merits

of a case, such as a post-judgment motion for attorneys’ fees.

See White, 455 U.S. at 451–52; Buchanan, 485 U.S. at 268;

Budinich, 486 U.S. at 200–03. Indeed, the Supreme Court

reiterated this core principle just this Term. See Banister v.

Davis, 140 S. Ct. 1698, 1703 (2020) (quoting White for the

proposition that Rule 59 generally has “only” been used to

reconsider “matters properly encompassed in a decision on

the merits” (quotations omitted)). The 1993 Amendments to

the Federal Rules and the Supreme Court precedent upon

which they were premised thus prohibit us from

recharacterizing Nutrition Distribution’s attorneys’ fees

motion as a motion under Rule 59.

C

Against all of this, Nutrition Distribution offers three

arguments for why, under the circumstances of this case, we

should construe its fees motion as one under Rule 59. None

of these arguments is persuasive.

16 NUTRITION DISTRIBUTION V. IRONMAG LABS

1

Nutrition Distribution first cites Whittaker v. Whittaker

Corp., 639 F.2d 516 (9th Cir. 1981), 3 and Munden v. Ultra-

Alaska Associates, 849 F.2d 383 (9th Cir. 1988), for the

proposition that a fees motion is a motion under Rule 59

when it substantively challenges whether fees should be

awarded “at all.” But Whittaker and Munden did not involve

fees motions and they both predated Rule 58(e). They are

also not easily squared with the Supreme Court decisions

discussed above.

Whittaker involved a judgment in which the district court

also “included [an] award of costs to the plaintiffs” “as the

prevailing party.” 639 F.2d at 520. After judgment was

entered, but before the time to appeal expired, the defendant

moved to have the parties bear their own costs, arguing that

it, and “not the plaintiffs, should be considered the prevailing

party.” Id. The district court denied the motion. Id. After

learning that the plaintiffs would argue that the time to

appeal ran from the date judgment was initially entered—

and not the date of the district court’s costs order—the

defendant asked the district court to “determin[e] that the

motion to retax costs had extended the time for filing a notice

of appeal since it was a Fed. R. Civ. P. 59(e) motion to alter

or amend the judgment.” Id. The district court did so and

ordered the defendant’s notice of appeal accepted for filing.

Id.

On appeal, we held that the defendant’s costs motion

extended the time to appeal and could be construed as a

motion under Rule 59. Whittaker explained that “[f]or

3

Whittaker was abrogated on grounds not relevant here in Credit

Suisse Securities (USA) LLC v. Simmonds, 566 U.S. 221 (2012).

NUTRITION DISTRIBUTION V. IRONMAG LABS 17

substantive challenges as to the appropriateness of awarding

costs at all, especially where such challenge involves a

redetermination of who was the prevailing party, Rule 59(e)

may be appropriate.” Id. at 521. Because the defendant’s

motion “went to the heart of how the judgment was to be

characterized”—and the district court was “surely in a

position to understand the ramifications of the motion”—we

held that the defendant’s motion to re-tax costs was

“correctly construed as a Rule 59(e) motion” and thus

“extended the time for filing the notice of appeal.” Id.

Munden reflected a similar analysis. The plaintiff in

Munden recovered damages in a judgment that also awarded

“prejudgment interest from the date of injury.” 849 F.2d at

384–85. After judgment was entered, the defendants moved

to “deny [the plaintiff] prejudgment interest that had accrued

after the expiration of an offer of judgment” and also “to

amend the court’s findings of fact and judgment.” Id. at 385.

The district court rejected the defendants’ prejudgment

interest argument, but “modified its damages calculation,

incorporated new conclusions, and amended its findings.”

Id. The district court thereafter entered an amended

judgment. Id.

In response, the defendants filed a further “Motion to

Amend Form of Judgment,” again asking the district court

“to delete those costs awarded . . . that were incurred after

the offer of judgment” and to award defendants their post-

offer costs. Id. While the defendants’ motion was pending,

the plaintiff filed a notice of appeal. Id. After the appeal

was filed, the district court granted the defendants’ renewed

motion in an order titled “Order (Motion to Amend

Judgment Granted),” deleting costs accrued after the

defendants’ settlement offer and “award[ing] certain costs to

18 NUTRITION DISTRIBUTION V. IRONMAG LABS

the defendants.” Id. The plaintiff did not file a renewed

notice of appeal.

We held that we lacked jurisdiction because the

plaintiff’s notice of appeal was premature and thus

ineffective under the then-governing Federal Rules. Id.

at 386–87; see also ante at 10 n.2. Because we construed the

defendant’s motion as a Rule 59 motion, the plaintiff’s

earlier notice of appeal was filed too early and was therefore

void. Munden, 849 F.2d at 386–87. In reaching this

conclusion, we relied on Whittaker, explaining that “the

defendants challenged costs previously awarded on a

substantive basis.” Id. at 387. Because the request at issue

involved “substantive, not merely ministerial or clerical,

relief,” Munden held that the defendants’ motion was

effectively a motion under Rule 59 and was treated as such

by the district court. Id.

It should be clear by this point in our discussion that the

substantive-clerical distinction in Whittaker and Munden is

not easily reconciled with Supreme Court precedent. The

entire point of the trio of Supreme Court cases discussed

above was to fashion a straightforward rule that “looks

solely to the character of the issue that remains open after the

court has otherwise ruled on the merits of the case.” See Ray

Haluch Gravel Co., 571 U.S. at 188. Whittaker and Munden

treated motions for costs as cognizable under Rule 59. The

Supreme Court has made clear, however, that motions for

costs and attorneys’ fees raise issues collateral to the

judgment—“issues to which Rule 59(e) was never intended

to apply.” See White, 455 U.S. at 451–52; Buchanan,

485 U.S. at 268–69; Budinich, 486 U.S. at 200–03.

Whittaker was decided before the relevant Supreme

Court decisions in this area. But Munden was decided after

them and understandably has been criticized for failing to

NUTRITION DISTRIBUTION V. IRONMAG LABS 19

mention White, Buchanan, or Budinich. See Lentomyynti Oy

v. Medivac, Inc., 997 F.2d 364, 367 (7th Cir. 1993) (“The

[Munden] court did not discuss any of the relevant Supreme

Court cases.”). Munden also tried to distinguish our prior

decision in Durham as a “narrow” case “seeking reallocation

of costs requiring only clerical changes.” 849 F.2d at 387.

But we question whether that was a fair reading of Durham,

810 F.2d at 1503, a decision that was in accord with White,

Buchanan, and Budinich, as well as other pre-existing circuit

precedent. See Int’l Ass’n of Bridge, Structural,

Ornamental, & Reinforcing Ironworkers’ Local Union 75 v.

Madison Indus., Inc., 733 F.2d 656, 658–59 (9th Cir. 1984)

(adopting “bright-line rule” and rejecting “case-by-case

approach” to whether “judgments finally disposing of the

merits are final and appealable even though questions

relating to attorney’s fees are unresolved”).

Although Whittaker and Munden are in obvious tension

with Supreme Court precedent, this case does not require us

to pronounce their ultimate fate. Whittaker and Munden,

which involved costs motions, were decided before the 1993

amendments to the Federal Rules, see Fed. R. Civ. P. 58(e);

Fed. R. App. P. 4(a)(4)(A)(iii), which lay out the specific

rules for the timing of notices of appeal in the context of

motions for attorneys’ fees. Whittaker and Munden had no

occasion to consider a motion for attorneys’ fees, much less

Rule 58(e) or the related amendments to Federal Rule of

Appellate Procedure 4(a)(4)(A). Today, it is those Rules that

dictate when a fees motion can extend the time to appeal.

See Ray Haluch Gravel Co., 571 U.S. at 186–87; Stephanie-

Cardona, 476 F.3d at 705; Moody, 383 F.3d at 252–53; Cal.

Med. Ass’n, 207 F.3d at 576.

Nutrition Distribution made no effort under Rule 58(e)

to obtain—and did not obtain—an extension of the time to

20 NUTRITION DISTRIBUTION V. IRONMAG LABS

appeal due to its filing of an attorneys’ fees motion. Its

notice of appeal was therefore untimely as to the underlying

judgment. See Stephanie-Cardona, 476 F.3d at 705.

Although we question how Whittaker and Munden can

remain good law, see Buchanan, 485 U.S. at 268–69,

because this case involves a fees motion and not a costs

motion, whether Whittaker and Munden can still govern

motions for costs is a question for another day. It is enough

here to hold that, under the 1993 amendments to the Federal

Rules, an attorneys’ fees motion will not extend the time to

appeal unless the district court orders that result under Rule

58(e). Stephanie-Cardona, 476 F.3d at 705.

2

Nutrition Distribution next argues that its attorneys’ fees

motion can be reconstrued as a Rule 59 motion because the

district court had previously rejected Nutrition

Distribution’s fee request in its summary judgment decision.

The suggestion is that although an attorneys’ fees motion

usually cannot be recharacterized as a Rule 59 motion, it can

be where there is an extant order denying fees. This theory

again fails under the 1993 amendments to the Federal Rules

and the decisions in White, Buchanan, and Budinich, which

gave rise to them.

That the district court denied fees when ruling on

summary judgment did not transform its initial fees ruling

into part of the “judgment” to which a Rule 59 motion could

apply. The earlier attorneys’ fees ruling once again “raise[d]

legal issues collateral to the main cause of action—issues to

which Rule 59(e) was never intended to apply.” White,

455 U.S. at 451.

Other circuits confronting similar situations as here—

i.e., an initial decision denying fees and a post-judgment

NUTRITION DISTRIBUTION V. IRONMAG LABS 21

motion renewing the request for fees—have likewise held

that the time to appeal the original judgment was not based

on the denial of the later fees motion. See Yost v. Stout,

607 F.3d 1239, 1243 (10th Cir. 2010) (“[The] ‘Motion to

Alter or Amend Judgment’ did not challenge the district

court’s judgment on the merits, but only challenged the

court’s denial of fees. We therefore conclude that the motion

concerned only a collateral issue—attorney’s fees—and was

properly construed as a motion brought pursuant to Rule

54(d) rather than Rule 59(e).”); Moody, 383 F.3d at 253

(“[R]eading (4)(a)(4) and the rule it refers to—Rule 58—

together, it is clear to us that any post-judgment motion

addressing costs or attorney’s fees must be considered a

collateral issue even when costs or attorney’s fees are

included in a final judgment.”). These authorities as well

confirm that under the Federal Rules, it is the character of a

motion for attorneys’ fees, rather than its timing, that

prevents us from recharacterizing Nutrition Distribution’s

motion as a Rule 59 motion. See Ray Haluch Gravel Co.,

571 U.S. at 188; Budinich, 486 U.S. at 200–03.

3

Finally, Nutrition Distribution argues that by challenging

the district court’s finding that the case was not

“exceptional” under the Lanham Act, its post-judgment

attorneys’ fees motion addressed “substantive” issues

already adjudicated in the case. This, according to Nutrition

Distribution, brings its motion for attorneys’ fees under the

umbrella of Rule 59.

Nutrition Distribution’s argument on this point relies on

Hairline Creations, Inc. v. Kefalas, 664 F.2d 652 (7th Cir.

1981). In that case, the Seventh Circuit held that a post-

judgment motions for attorneys’ fees under the Lanham Act

should be treated as a Rule 59 motion, explaining that:

22 NUTRITION DISTRIBUTION V. IRONMAG LABS

whether a trademark case is “exceptional”

cannot be separated from whether trademark

rights have been violated or abused. This

identity of issues weds the determination of

attorneys’ fees to the final judgment. It is

because of this bond that a motion for fees

after judgment is necessarily a Rule 59(e)

motion to alter or amend the judgment.

Id. at 659.

The Seventh Circuit believed that because any finding

that the case was “exceptional” would conflict with the

district court’s previous rulings in that case, “the attorneys’

fees motion thus would have required reexamination of

factual findings and legal conclusions in the judgment.” Id.

This meant the motion was really a motion to alter or amend

the judgment under Rule 59. Id.

Hairline is not easily reconciled with the Supreme

Court’s later decisions in White, Buchanan, and Budinich.

Those cases underscored the distinction between the

judgment and an award of fees or costs under Rule 54(d).

See White, 455 U.S. at 451–52; Buchanan, 485 U.S. at 268;

Budinich, 486 U.S. at 200. In fact, Hairline relied on the

First Circuit’s decision in White, which the Supreme Court

later overruled. White, 455 U.S. at 451–52.

For these reasons, the Seventh Circuit has itself

questioned whether Hairline survives the Supreme Court’s

decisions in this area, calling Hairline an “outlier” and

distinguishing it when possible. See Bittner v. Sadoff &

Rudoy Indus., 728 F.2d 820, 827 (7th Cir. 1984), overruled

on other grounds by McCarter v. Ret. Plan for Dist.

Managers of Am. Fam. Ins. Grp., 540 F.3d 649 (7th Cir.

2008); Exch. Nat’l Bank of Chi. v. Daniels, 763 F.2d 286,

NUTRITION DISTRIBUTION V. IRONMAG LABS 23

293–94 (7th Cir.), amended on reh’g in part, 768 F.2d 140

(7th Cir. 1985) (explaining that the circuit has “distinguished

Hairline on razor-thin grounds,” referred to it an “outlier,”

and “questioned whether it survived White”).

Other courts have also recognized that Hairline is

inconsistent with later Supreme Court decisions. See SGS-

Thomson Microelectronics, Inc. v. Int’l Rectifier Corp.,

31 F.3d 1177 (Table) (Fed. Cir. 1994) (“Hairline was

decided by the Seventh Circuit before Budinich and White

and hence has little precedential value.”); Specht v. Google,

Inc., 805 F. Supp. 2d 551, 556 (N.D. Ill. 2011) (“While

Hairline Creations may technically still be viable, it appears

relegated to the back corner of a locked closet, with the

Seventh Circuit disregarding it.”).

Hairline’s endeavor to identify attorneys’ fees

provisions that touch on the “substance” or “merits” of a case

is inconsistent with the “bright-line” rule that attorneys’ fees

issues are not part of the judgment. Budinich, 486 U.S.

at 202. The Supreme Court in Budinich squarely rejected an

approach “that requires the merits or nonmerits status of

each attorney’s fee provision to be clearly established before

the time to appeal can be clearly known.” Id. And we cannot

revive a framework for assessing fee requests that conflicts

with the 1993 amendments to the Federal Rules and the

decision in Budinich on which those amendments were

based.

Our decision in this regard aligns with Gnesys, Inc. v.

Greene, 437 F.3d 482 (6th Cir. 2005), another Lanham Act

case. In Gnesys, the notice of appeal was filed within

30 days of the district court’s order granting attorneys’ fees

under the Act’s “exceptional case” provision. Id. at 485. But

the notice of appeal was filed more than 30 days after two

other relevant orders in the case (for contempt and damages).

24 NUTRITION DISTRIBUTION V. IRONMAG LABS

Id. In holding the appeal was untimely as to the contempt

judgment and damages award, the Sixth Circuit relied on the

“clear message of Budinich” to “reaffirm” that “a decision

awarding attorney’s fees is not part of the merits for purposes

of determining if the lower court issued a ‘final decision.’”

Id. at 487. This was the result commanded by Budinich,

“even if the attorney’s fees” at issue “are authorized by

statute,” as they are under the Lanham Act. Id.

Gnesys, and not Hairline, is the more faithful application

of Supreme Court precedent in the context of notices of

appeal involving the Lanham’s Act “exceptional case”

provision for attorneys’ fees.

III

Although its notice of appeal was untimely as to the

district court’s December 13, 2018 judgment, the notice of

appeal was timely filed within 30 days of the district court’s

January 30, 2019 denial of attorneys’ fees. Fed. R. App.

P. 4(a)(1)(A). We thus have jurisdiction to review the latter

order. 4

As noted, the Lanham Act allows an award of attorneys’

fees in “exceptional cases.” 15 U.S.C. § 1117(a). A denial

of attorneys’ fees under this Act is reviewed for abuse of

discretion. SunEarth, Inc. v. Sun Earth Solar Power Co.,

839 F.3d 1179, 1180–81 (9th Cir. 2016) (en banc) (per

curiam). We have held that because the Lanham Act

“permits, but does not mandate, an award of attorneys’ fees”

in “exceptional” circumstances, “[a] party alleging that the

district court erred by failing to award attorneys’ fees under

4

Nutrition Distribution’s unopposed motion for judicial notice is

granted.

NUTRITION DISTRIBUTION V. IRONMAG LABS 25

§ 1117 faces an uphill battle.” Gracie v. Gracie, 217 F.3d

1060, 1071 (9th Cir. 2000).

The district court did not abuse its discretion in denying

fees. The district court found that Nutrition Distribution’s

post-judgment motion for attorneys’ fees violated certain

local rules. The district court also based its denial of fees on

the fact that Nutrition Distribution had failed to show injury

or damage resulting from IronMag’s advertising, or proof

that IronMag had engaged in litigation misconduct or

violated the district court’s injunction. These facts—

combined with Nutrition Distribution’s decision to file over

80 similar lawsuits in a three-year span—do not make this

case “stand[] out from others” as “exceptional.” See

SunEarth, 839 F.3d at 1180.

* * *

We affirm the district court’s denial of attorneys’ fees.

We otherwise dismiss the appeal for lack of jurisdiction.

DISMISSED IN PART AND AFFIRMED IN PART.