Reply Brief — WFMJ Television, Inc. v. Bosley (No. 07-716)

FILED

: FEB 23 2908

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In The

Supreme Court of the Anited States

WFMJ TELEVISION, INC.,

Petitioner,

Vv.

CATHERINE BOSLEY, et al.,

Respondents.

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Sixth Circuit

REPLY BRIEF FOR THE PETITIONER

Davip L. MARBURGER

Counsel of Record

MATTHEW J. CAVANAGH

BAKER & HostTeTLER LLP

3200 NATIONAL CiTy CENTER

1900 East NINTH STREET

CLEVELAND, OHIO 44114

(216) 621-0200

Counsel for Petitioner

February 22, 2008

Becker Gallagher - Cincinnati, OH - Washington, D.C. + 800.890.5001

i

TABLE OF CONTENTS

"Tee OF PAMBEINOPIIIOS gn occ 5k ox hn cee neevds il

I. The questions presented have national

and potentially permanent impact on the

evolving power of federal district courts

to compel civil parties to settle. .......... 1

II. WFM4J’s petition is accurate. ............ 2

Iii. The Court should resolve the important

disagreement between the Seventh and

Sixth circuit courts of appeals. ........... 3

IV. WFEMJ raised its challenge to post-

dismissal Kokkonen jurisdiction below. ... 7

V. Bosley did not refile her notice

withdrawing the settlement motion as a

"MAOEIOR AO WREENONE, oo oo a ces. 8

VI. The uncontroverted record shows that

the district court’s assumed jurisdiction

to grant Bosley’s motion to enforce

settlement ended on January 19, 2006..... 9

Vil. The Sixth Circuit’s Article III mootness

ruling and the Federal Circuit’s contrary

ruling in Earth Island Institute v.

Albright are irreconcilable. ............ 14

ee Ee ORT ne PPE Ge eS 17

il

TABLE OF AUTHORITIES

Cases

Bosley v. WFMZJ,

BT Wis samo OF *2 ow. cee 9,13

DuPuy v. McEwen,

495 F.3d 807 (7th Cir. 2007) ............... 5

Earth Island v. Daley,

48 ¥ Supp.2d 1064 (1999) ................ 16

Earth Island Inst. v. Albright,

147 F.3d 1352 (Fed. Cir. 1998) ...... 14, 15, 16

Hammond v. Verdini,

377 F.Supp. 2d 296 (D. Mass 2005) ........ 13

In re VMS Securities Litig. v. Prudential Securities,

Inc.,

103 F.3d 1317 (7th Cir. 1996) .............. 4

Jessup v. Luther,

ert © oe wae (ren Cit. 2002) ... 2. cs 5

Kokkonen v. Guardina Life Inc. Co.,

REE Sy Ce passim

Lynch, Inc. v. SamataMason, Inc.,

279 F.3d 487 (7" Cir. 2002) ................ 5

MedImmune, Inc. v. Genetech, Inc.,

8 Tt Gs | 8

ill

Montgomery v. Aetna Piywood, Inc.,

231 F.3d 399 (7th Cir. 2000) ............... 4

Re/Max Internat’l, Inc. v. Realty One, Inc.,

271 F.3d 633 (6th Cir. 2001), cert. denied,

ee Re ee CE oh wae ea ee 3, 4, 7

Shapo v. Engle,

463 F.3d 641 (7th Cir. 2006) .......... 5, 6, 16

Standard Indus., Inc. v. Tigrett Indus., Inc.,

Bre Se RR 6 ke ok ee ek OE ARS, 8

United States v. Williams,

4 BR FD: | a re 8

Other Authorities

Parness, J. & Walker, M., Enforcing Settlements

in Federal Civil Actions, 36 Indiana L. Rev.

eT Sc 6 Kae oe 6

Resnik, J., Procedure as Contract, 80 Notre Dame

Rs, BOOM. He COR nbn os eh eo eh ae ee Khoa 6

1

Petitioner WFMJ’s reply in support

of petition for writ of certiorari

E, The questions presented have national and

potentially permanent impact on the

evolving power of federal district courts to

compel civil parties to settle.

Respondent Bosley has offered nothing to diminish

the importance of the questions presented here.

She does not deny, as no one can, the increasing

pressure in federal district courts to settle civil cases.

Nor does she dispute that the judicial zeal to settle

cases presents special challenges in demarking bounds

of federal judicial power.

She avoids tackling the question of whether a

district court has the power to do what happened here.

The court here purported to exercise ancillary

jurisdiction to enforce an asserted state-law settlement

contract between parties of the same state. It based

its power to do that on a bare recital of “continuing

jurisdiction” to resove settlIment disputes, while sua

sponte dismissing the underlying federal-question suit

with prejudice.

And the court entered its recital of “continuing”

jurisdiction to enforce settlement (i.e., never ending)

without first confirming that an enforceable settlement

contract actually existed; without knowing any of its

terms; and without ordering any of the parties to

comply with it.

2

This case illustrates vividly how uncertainties

about ancillary jurisdiction to enforce settlement --

and perhaps eagerness to have it ~— can spawn

standardless discretionary judicial acts that strain the

limits of Article ITT.

II. WEMJ’s petition is accurate.

Before going further, the reader should reject

Bosiey’s accusation that petitioner WFMJ has

misrepresented the record.’ Her sole support for that

charge: “Petitioner stated to this Court that the

Respondent unilaterally withdrew their Motion to

Enforce the Settlement and that WFMJ did not

‘oppose.””

Bosley does not directly quote WFMuJ’s petition or

offer any page cites, which may explain why she is

mistaken.

What the petition describes as “unopposed” or that

“WFMJ didn’t oppose” is Bosley’s motion to vacate the

dismissal and to set the case for trial on the merits of

her copyright claims. Thus:

e Bosley “moved to vacate the dismissal, and

moved to set the case for trial. WFMJ didnt

oppose.”

Bosley Brf., 2.

* Bosley Brf., 2.

3 Petition, 1.

3

e “Later that day, she moved to vacate the sua

sponte dismissal order and to set the case for

trial. WFMJ didn’t oppose.”

e “WFMJ contends that when Bosley

unconditionally withdrew her settlement

motion on January 19, amd moved

unopposed to vacate the dismissal order and

to go to trial, ....”

The petition is accurate.

III. The Court should resolve the important

disagreement between the Seventh and

Sixth circuit courts of appeals.

The recent Seventh Circuit opinions cited in

WFM4J’s petition say that, where there is no consent

decree, a district court cannot exercise self-invoked

“continuing” jurisdiction to enforce settlement after

terminating federal jurisdiction by dismissing the

underlying suit with prejudice.

That conclusion contradicts the order that the Sixth

Circuit affirmed here, a ruling required by the Sixth

Circuit’s earlier decision in Re/Max Internat’, Inc. v.

Realty One, Inc., 271 F.3d 633 (6™ Cir. 2001), cert.

denied, 535 U.S. 987 (2002).

* Petition, 11.

° Petition, 23.

4

In Re/Max, the Sixth Circuit upheld a dismissal

order nearly verbatim identical to the one contested

here — and issued by the same district judge.

Although one judge dissented in Re/Max, he opined

that the district judge “easily” could have invoked post-

dismissal power to enforce settlement by adding some

language, which the order at issue here contains.°

Bosley insists that the author of the contrary

Seventh Circuit opinions — Judge Posner — is just “one

judge,” but she ignores the unanimity of the panels

that adopted the opinions that Judge Posner wrote.

Citing two opinions written by other Seventh

Circuit judges, Bosley claims that the other judges

agree with the Sixth Circuit.’ Both of the opinions

that Bosley cites — one in 1996 and one in 2000 — pre-

dated Judge Posner’s opinions of 2007, 2006, and

2002.°

Judge Kanne wrote the 1996 opinion and judges

Evans and Bauer were on the panel of the opinion

issued in 2000. Each sat on at least one of the later

§ Re/Max, 271 F.3d 633, 653 (Wallace, J., dissenting).

’ Bosley Brf., 17-19.

8 See next footnote for citations.

Bosley relies on In re VMS Securities Litig. v. Prudential

Securities, Inc., 103 F.3d 1317 (7" Cir. 1996) — mistakenly cited by

Bosley as 172 F.3d 1372 —- and Montgomery v. Aetna Plywood, Inc.,

231 F.3d 399 (7 Cir. 2000).

5

panels that unanimously adopted Judge Posner’s

opinions.”

Bosley dismisses two of those unanimous opinions

as dicta — Lynch, Inc. v. SamataMason, Inc. and Shapo

v. Engle.”

Both opinions emphasized that district courts

cannot validly assume ancillary jurisdiction to enforce

settlement merely by saying that they have it, while

dismissing the underlying federal suit with prejudice.

Those conclusions were not dicta.

In Lynch, the Seventh Circuit viewed that

conclusion as vital to its own jurisdiction to hear the

appeal.’ After invalidating the retained jurisdiction

to enforce settlement, the court decided that the

matter was “appealable now because it wound up the

proceedings in the district court even though Lynch

may face further litigation with SamataMason in

another forum over the settlement agreement.”

° Dupuy v. McEwen, 495 F.3d 807, 809 (7 Cir. 2007) (Posner,

Easterbrook, Evans); Shapo v. Engle, 463 F.3d 641, 643 (7™ Cir.

2006) (Posner, Coffcy, Ripple); Lynch v. SamataMason, Inc., 279

F.3d 487, 489 (7 Cir. 2002) (Posner, Easterbrook, Bauer); Jessup

uv. Luther, 277 F.3d 926, 929 (7 Cir. 2002) (Posner, Easterbrook,

Kanne).

'° Bosley Brf, 17, 18. Lynch, 279 F.3d 487, 489 (7 Cir. 2002);

Shapo, 463 F.3d 641, 643 (7" Cir. 2006).

'' 279 F.3d 487, 490.

2 Lynch, 279 F.3d at 490.

6

In Shapo, the Seventh Circuit remanded to clarify

whether the district court’s asserted power to enforce

settlement came from an order dismissing the

underlying suit with prejudice. That mattered because

“we cannot exclude the possibility that the judge

mistakenly thought she could retain jurisdiction even

after dismissing the suit with prejudice.””*

Yet uncertainty about federal jurisdiction does not

arise only from holdings. It arises from dicta, too, with

the Kokkonen dicta as a prime example.

Although the difference between dicta and holdings

is quite important in deciding which statements in

appellate opinions bind courts in later cases, it does

not negate dicta’s pervading influence in producing

uncertainty about what the law authorizes or requires.

Indeed, regardless of whether some lower court

interpretations of Kokkonen’s dicta are themselves

dicta, the lower courts’ opinions have caused

disinterested and respected scholars to conclude that

“many lower court judges disagree about what

Kokkonen requires,” resulting in “continuing

uncertainties and confusion.””®

'3 463 F.3d 641, 646.

' Kokkonen v. Guardian Life. Ins. Co., 511 U.S. 375, 581-582

(1994).

© J. Resnik, Procedure as Contract, 80 Notre Dame L. Rev. 593,

635 (2005); J. Parness & M. Walker, Enforcing Settlements in

Federal Civil Actions, 36 Indiana L. Rev. 33, 34 (2003).

7

IV. WFMJ raised its challenge to _ post-

dismissal Kokkonen jurisdiction below.

Bosley insists that WFMJ did not question until

now the district court’s self-invoked jurisdiction under

Kokkonen’s dicta."* Again, Bosley is mistaken.

What actually happened was that WFMJ read

Re/Max.

Although futile to assault the same order by the

same judge already upheld in a recent published

opinion by the same court of appeals, WFM4J still

questioned the order’s validity albeit less aggressively.

Mindful of Re/Max (and even a bit intimidated by

it), WFMJ initially acknowledged in the court of

appeals that the judge’s order conferred the power that

he had assumed.

But WFMJJ protested that in a later appellate brief,

and Bosley addressed the merits of WFMJ’s protest in

oral argument.”

Then, Bosley moved the court of appeals to award

sanctions, arguing that WF MJ’s legal arguments were

frivolous. WFMJ then attacked the district court’s

Kokkonen jurisdiction again and more aggressively."®

'© Kokkonen v Guardian Life Insur. Co., 511 U.S. 375, 381-382

(1994).

'? Appdx to this brief, 4a—6a, 8a.

'S Appdx to this brief, 10a-11a.

8

The Sixth Circuit denied Bosley’s motion for sanctions,

and added the unusual note of declining to award even

ordinary court costs.”

This Court has not required petitioners to risk

sanctions by mounting quixotic frontal assaults on

recent and seemingly impenetrable circuit precedent

as a condition for this Court’s review, a condition that

would impose an enormous gamble.”°

That would seem to be especially true where, as

here, the petitioner is challenging subject matter

jurisdiction — which this Court can raise for the first

time sua sponte and litigants can raise at any time.

V. Bosley did not refile her notice

withdrawing the settlement motion as a

“motion” to withdraw.

Bosley says that her notice withdrawing her

motion to enforce settlement “was refiled as a motion

'? Appdx to this brief, 13a-15a.

2° See MedImmune, Inc. v. Genetech, Inc., 127 S.Ct. 764, 770

(2007) (mot aggressively urging an argument that circuit

precedent “precluded” did not suggest waiver, but instead

reflected counsel’s “sound assessment that the argument would be

futile”); United States v. Williams, 504 U.S. 36, 43-45 (1992)

(declining to require the government to “demand overruling of

squarely applicable, recent circuit precedent” as condition for

granting certiorari); Standard Indus., Inc. v. Tigrett Indus., Inc.,

397 U.S. 586, 587-588 (1970) (Black, J., dissenting) (the Court

considers “whether assertion of the issue earlier would have been

futile” in the court below).

9

to withdraw.”” Using passive voice, Bosley does not

say that she converted the notice into a motion.

Indeed she did not, as the next section of this reply will

show.

The Sixth Circuit, however, put the matter to rest

by concluding: “there can be no doubt that the

document filed with the district court expresses a

unilateral desire on the part of the plaintiffs to

withdraw their motion.””

And Bosley’s appellate brief said that her motion to

enforce settlement “had been withdrawn.””

Withdrawing her settlement motion does not affect

attaining Kokkonen jurisdiction initially, but it does

create the endpoint of that purported jurisdiction. The

next section of this reply demonstrates that.

VI. Theuncontroverted record shows that the

district court’s assumed jurisdiction to

grant Bosley’s motion to enforce

settlement ended on January 19, 2006.

Bosley mistakenly portrays a hearing brief that

WFM43 filed on January 30, 2006 — 11 days after she

unconditionally withdrew her motion to enforce

settlement — as reviving the district court’s assumed

Kokkonen jurisdiction.

?! Bosley Brf., 1*' question.

** Bosley v. WFMJ, 2007 WL 2050655 at *2.

*8 Bosley appellee brf. at 27, in this reply at 2a.

10

It did not, and could not. By January 30, nothing

could. The case was over, although no one realized it.

The uncontroverted record shows that three events

converged 11 days earlier -- on January 19 —- to

immediately end whatever ancillary Kokkonen

jurisdiction the district court could have had.

On that day, Bosley unconditionally withdrew her

motion to enforce settlement; she moved for trial on

the underlying copyright claims; and WFMJ already

had advised the court that neither it nor Bosley could

enforce any settlement because the parties had not

consummated anything enforceable.”

When those developments combined on January 19,

there was no pending complaint. There was no

judicial command to enforce. There was nothing but a

bare recital entered when the court dismissed the case,

saying that it retained “continuing” jurisdiction to

resolve disputes over settlement.

Thus, after January 19, the district court had

nothing left to support the ancillary Kokkonen

jurisdiction that it claimed to have. On January 19,

2006, Article III disabled any later attempt to revive

federal jurisdiction to enforce an asserted state-law

settlement contract between parties of the same state.

24 WFMJ memor. #334, 12/16/05; Petition, 54a-63a.

11

The uncontroverted record shows:

Nov. 26, 2005.

The district court ordered the case dismissed with

prejudice and retained continuing jurisdiction over

disputes in memorializing settlement, citing

Kokkonen.

Dec. 15, 2005.

Bosley moved to enforce settlement.

Dec. 16, 2005.

WFMJ argued that the parties had not

consummated a final, enforceable contract, and so

opposed Bosley’s motion to enforce.”

Jan. 19, 2006.

Bosley filed her notice that plaintiffs “hereby

withdraw their Motion to Enforce Settlement

Agreement Reached on November 23, 2005, which was

filed on December 15, 2005" — doc. #346.7°

Bosley moved separately to vacate the dismissal

and to order a trial on the underlying copyright claims

— doc. #347."

* WFMJ memor. #334.

6 Petition, 54a-55a.

27 Petition, 60a.

12

Loss of asserted ancillary Kokkonen

jurisdiction:

At this point -— January 19 - Article Ill

immediately deprived the district court of whatever

ancillary Kokkonen jurisdiction it had. Bosley’s

motion to enforce settlement was no longer

justiciable, if it ever had been.

Everything that happened after this point was

ultra vires.

Here’s what happened after January 19:

Jan. 20, 2006.

A district court employee designated as “(S, T)”

modified the docket text of Bosley’s notice withdrawing

her settlement motion by adding: “FILED IN ERROR

— ATTORNEY TO REFILE AS A MOTION.”

Later on Jan. 20.

Bosley refiled the identical “notice” that she had

filed on Jan. 19. She did not recast it as a “motion” in

any respect — doc. #348. Compare pages 54a and 57a

in the appendix to WFMJ’s petition.

It turns out that the district court, not Bosley,

labeled the second notice as a “motion” on the court

docket and not until several days later. Thus:

*8 Petition, 51a; App. to this brief at 19a.

"

13

Jan. 23, 2006.

”

A district court employee designated as “(S,T)

modified the docket text of Bosley’s second notice

withdrawing her settlement motion by calling it:

“Motion to Withdrawal Document Motion to Enforce

Settlement Agreement Reached on November 23,

2005"

The substance of a record trumps its docket

description, however.*® Bosley’s second notice

withdrawing her settlement motion was exactly that:

another notice.

As the Sixth Circuit concluded: “there can be no

doubt that the document filed with the district court

expresses a unilateral desire on the part of the

plaintiffs to withdraw their motion.””

Also on Jan. 23.

The court ordered an evidentiary hearing on

Bosley’s motion to enforce settlement. It set the

hearing for eight days later, on January 30 — doc.

#349.”

* Petition, 5la.

%° F.g., Hammond v. Verdini, 377 F.Supp.2d 296, 297 n.1(D. Mass.

2005).

*! Bosley v. WFMJ, 2007 WL 2050655 at *2.

3? Petition, 52a.

14

Jan. 30, 2006.

The magistrate judge conducted the evidentiary

hearing on Bosley’s motion to enforce settlement and

WFM.4 filed the hearing brief described earlier.

April 7, 2006.

The district court denied Bosley’s “motion” to

withdraw her motion to enforce settlement, and

granted the motion to enforce settlement — doc. #397.

The district court did not explain how Bosley could

have been advocating that the court should both grant

the motion to enforce and allow her to withdraw it.

July 13, 2007.

The court of appeals affirmed the district court’s

orders.

VII. The Sixth Circuit’s Article III mootness

ruling and the Federal Circuit’s contrary

ruling in Earth Island Institute v. Albright

are irreconcilable.

Bosley has failed to find a way to reconcile the

mootness analysis in Earth Island Institute v. Albright

with the Sixth Circuit’s ruling here.**

The differences that she cites are either immaterial

or inaccurate. Bosley says that Earth Island did not

8 Farth Island, 147 F.3d 1352 (Fed. Cir. 1998).

15

“involve” ancillary jurisdiction.“ Ofcourse it did. The

movant to enforce was asking the trial court to enforce

a “final judgment” that commanded the defendant

federal government to issue revised regulations.*

That is quintessential ancillary jurisdiction.

Bosley then tries to reconcile the cases by saying

that the trial court in Earth Island had not recited

that it “retained” ancillary jurisdiction as the district

court did here. While Bosley is technically correct that

the Earth Island trial court did not expressly retain

jurisdiction, it did not need to. It had entered a final

judgment commanding the government to act.

Enforcing that command does not require any special

retention of ancillary jurisdiction; the ancillary

jurisdiction is built-in.

Bosley argues that no Article III controversy

existed in Earth Island when the plaintiffs there

moved to enforce because the trial court already had

issued a final judgment. Yet the same was true of

Bosley’s motion to enforce settlement here. When

Bosley moved to enforce settlement, this case already

had been dismissed with prejudice.

Bosley also argues, when the movant in Earth

Island unconditionally withdrew its motion to enforce,

the parties were no longer disputing and there was

nothing for the court there to resolve. Here, she

argues, the parties were still disputing the alleged

* Bosley Brf., 15.

*® Earth Island, 147 F.3d 1354.

16

settlement when she withdrew her motion to enforce

gs

Bosley is incorrect. When the plaintiffs in Earth

Island withdrew their motion to enforce, they still

insisted that the government had not complied with

the trial court’s order to issue new regulations. A

dispute still existed there, just as it did here. But the

dispute in Earth Island lost justiciability when the

plaintiffs unconditionally withdrew their motion to

enforce, as the court of appeals there ruled.

Indeed, the plaintiffs in Earth Island withdrew

their motion to enforce to gather more evidence, not

because their dispute over the regulations was over.

In fact, after the court of appeals ruled, the Earth

Island plaintiffs filed a new complaint against the

government, continuing the dispute.*”

Both circuits cannot be interpreting Article III’s

mootness doctrine correctly. This Court should resolve

the issue, especially given the uncertainty of the reach

of ancillary Kokkonen jurisdiction.

Correction: Page 12 of WFMJ’s petition omitted

the citation: Shapo v. Engle, 463 F.3d 641, 643 (7" Cir.

2006).

* Bosley Brf., 15.

” Earth Island v. Daley, 48 F.Supp.2d 1064, 1065-1066 (1999).

17

Conclusion

For the foregoing reasons and those stated in the

petition for a writ of certiorari, the Court should grant

WFM4)’s petition.

Respectfully submitted,

David L. Marburger

Counsel of Record

Matthew J. Cavanagh

BAKER & HOSTETLER LLP

3200 National City Center

1900 East Ninth Street

Cleveland, Ohio 44114

(216) 621-0200

APPENDIX

la

APPENDIX 1

IN THE UNITED STATES COURT OF

APPEALS FOR THE SIXTH CIRCUIT

Consolidated Court of Appeals Nos. 06-3091,

06-3624, 06-3625, 06-3626, 06-3894,

and 06-3895

[Filed January 17, 2007}

CATHERINE BOSLEY, et al.

Appellees-Plaintiffs,

-V-

21 WFMJU, et al.

)

)

)

)

)

)

Appellants-Defendants. )

)

On Appeal From United States District Court

for the Northern District of Ohio, Eastern Division

FINAL BRIEF OF APPELLEES-PLAINTIFFS

CATHERINE BOSLEY AND RICHARD BROWN

2a

[p. 27]

.. . Defendants challenge whether the Magistrate or

the district court had the authority to even consider

Plaintiffs’ Motion to Enforce Settlement after it had

been withdrawn. Defendants waived their right to

appeal all of these issues due to the untimely

objections to the Report and Recommendations. See

FED.R.CIV.P. 72.

[p. 35]

At no time, however, did Defendants even suggest

that the district court lacked jurisdiction to enforce the

settlement. At no time did Defendants question

Plaintiffs’ efforts to withdraw their Motion to Enforce

Settlement or any of the subsequent proceedings

resulting therefrom. On the contrary, Defendants

remained silent as to this issue and proceeded in full

force in an effort to avoid the settlement.

* * *

3a

APPENDIX 2

IN THE THE UNITED STATES COURT OF

APPEALS FOR THE SIXTH CIRCUIT

Consolidated Court of Appeals Nos. 06-3091;

06-3624, 06-3625, 06-3626, 06-3894

and 06-3895

On Appeal From U.S. District Court,

N.D. Ohio Case No. 04-02529

{Filed January 22, 2007]

CATHERINE BOSLEY, et al.

Appellees-Plaintiffs,

21 WFMU, et al.

)

)

)

)

-y- )

)

)

)

Appellants-Defendants. )

)

Reply Brief of Appellant-Defendant

WFMJ Television, Inc.

* *K *

4a

[p. 6]

WFM4J’s first argument on appeal is that the

district court had no subject matter jurisdiction to

grant the unconditionally withdrawn settlement

motion.’

Bosley responds by arguing that the district court

correctly resolved the merits of her former motion,

virtually avoiding WF MuJ’s jurisdictional challenge.

* * *

[p. 19]

E. The district court’s reservation of

“continuing jurisdiction to resolve

disputes” over settlement does not, and

cannot, give the court jurisdiction to

decide moot issues.

Although the district court here reserved

“continuing jurisdiction” to “resolve disputes” over

settlement, that did not release the court from the

strictures of Article III.

In reserving jurisdiction, the district court cited

Kokkonen, but Kokkonen did not decide the validity or

limitations of retaining jurisdiction over settlement

when dismissing the underlying merits with prejudice,

’(WFMJ Brf. at 31-33.)

5a

as the district court here did. The dismissal order in

Kokkonen did not retain jurisdiction over settlement.

In dicta, the Kokkonen Court opined

parenthetically that the district court could have

enforced the settlement if its dismissal order had

retained jurisdiction to do that. 511 U.S. at 381. It is

that dicta upon which the district court here relied.

Ironically, Kokkonen emphasized that courts are

supposed to follow the “holdings” of Supreme Court

cases “rather than their dicta.” 511 U.S. at 379.

[p. 20]

Kokkonen’s dicta contemplated that retaining

jurisdiction over settlement would be valid “if the

parties agree” to it. 511 U.S. at 381-382.

The dicta did not say that courts have unfettered

power to impose settlement upon the parties sua

sponte, regardless of whether the parties have a

pending motion to resolve settlement issues.

Most importantly, Kokkonen’s dicta did not, and

could not, relax Article III’s requirement of a live

controversy framed by the parties as the irrevocable

condition for exercising judicial power. Tothe contrary,

Kokkonen’s holding emphasized that enforcing

settlement must have “its own: basis for jurisdiction,”

which cannot “be expanded by judicial decree.” 511

U.S. at 377, 378. Kokkonen’s dicta, therefore, did not

and could not authorize courts to resolve settlement

disputes that are moot.

6a

Indeed, WFMJ has found no case decided after

Kokkonen where the court found jurisdiction to impose

settlement in the absence of a pending motion to

enforce, or after receiving notice that the movant was

withdrawing or abandoning the settlement motion.

* * *

Ta

APPENDIX 3

IN THE UNITED STATES COURT OF

APPEALS FOR THE SIXTH CIRCUIT

Court of Appeals No. 06-3091, consolidated

with 06-3624, 06-3625, 06-3626, 06-3894,

and 06-3895

CATHERINE BOSLEY,

APPELLEES,

VS.

WFMJ TELEVISION, INC., ET AL.,

APPELLANTS.

ee

TRANSCRIPT OF PROCEEDINGS BEFORE THE

UNITED STATES COURT OF APPEALS,

SIXTH CIRCUIT,

JUNE 1, 2007.

Proceedings recorded by mechanical stenography,

transcript produced by court reporter.

For the Appellees, Catherine Bosley and Richard

Brown, Mr. Richard Haber: .. .

8a

[p. 20]

The issue -- the parties clearly litigated the

controversy of the settlement, and the Court had

retained jurisdiction in its dismissal entry in dealing

with issues over the memorialization of this

settlement.

When the Defendants argue that the Court didn’t

have jurisdiction to do that under Kokkonen, the

Kokkonen decision actually in dicta says the Court

retained jurisdiction. It may have been acceptable, but

we also believe that what would be necessary is the

parties’ acceptance of that jurisdiction.

* * *

9a

APPENDIX 4

In The United States Court Of Appeals

For The Sixth Circuit

Consolidated Case Nos. 06-3091, 06-3624,

06-3625, 06-3626, 06-3894, 06-3895

[Dated September 4, 2007]

CATHERINE BOSLEY, et al.,

Plaintiffs-Appellees,

VS.

WFMJ TELEVISION, INC., et al.

)

)

)

)

)

)

Defendants-Appellants. )

)

On Appeal From United States District Court,

Northern District Of Ohio

Case No. 04-02529

Response Of All Appellants And

Their Counsel To Appellees’ Motion For

Sanctions And Costs

**K*

10a

[p. 13]

C. The’ district court’s reservation of

“continuing jurisdiction” can’t negate the

dictates of Article III.

When the district court dismissed this copyright

case with prejudice, it recited that it “retains

continuing jurisdiction to resolve disputes concerning

the memorialization” of settlement.*® As authority for

the continuing jurisdiction, the order cited Kokkonen

v. Guardian Life Ins. Co., 511 U.S. 375 (1994).

In rejecting WFMJ’s Article III argument, this

Court did not say that it was relying on any

“continuing jurisdiction” decided by Kokkonen, as

indeed it could not.

[p. 14]

“Continuing jurisdiction” means “never-ending”

jurisdiction, and the Supreme Court did not decide in

Kokkonen that Article III authorizes district courts to

take it upon themselves to invoke never-ending

jurisdiction over potential settlement disputes —

normally a province of state courts and state law -- in

a nondiversity lawsuit.

The dismissal order contested in Kokkonen did not

retain any jurisdiction over settlement. In dicta, the

*° (Order, #331. J.A. 781.)

lla

Kokkonen Court opined parenthetically that the

district court in that case could have enforced the

settlement if it had retained jurisdiction to do that.”

Ironically, Kokkonen emphasized that courts are

supposed to follow the “holdings” of Supreme Court

cases “rather than their dicta.””

But what matters most here is that Kokkonen’s dicta

did not say that a district court’s reservation of

jurisdiction to resolve settlement disputes relaxes the

dictates of Article III.

° Kokkonen, 511 U.S. at 381.

*! Kokkonen, 511 U.S. at 379

12a

APPENDIX 5

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Case Nos. 06-3091/ 06-3624/ 06-3625/ 06-3894/

06-3895/ 06-3626

[Filed November 9, 2007]

CATHERINE BOSLEY, also known as

Catherine Balsley, et al.,

Plaintiffs -Appellees

v.

21 WFM3, et al.,

Defendants

WFMJ TELEVISION, INC.; MICHELLE

NICKS; JOHN URCHEK

Defendants -Appellants

Nm eee eee eee eee Se”

l3a

BEFORE: GIBBONS and COOK, Circuit Judges; and

CLELAND, District Judge.

ORDER

Upon consideration of appellees’ motion for

sanctions and costs as well as their motion to

supplement that motion,

It is ORDERED that the motion to supplement the

motion for sanctions and costs is hereby GRANTED.

It is further ORDERED that the motion for

sanctions and costs is DENIED.

ENTERED BY ORDER OF THE COURT

Leonard Green, Clerk

/s/ Leonard Green

Issued: November 09, 2007

* The Honorable Robert H. Cleland, U.S. District Judge for the

Eastern District of Michigan, sitting by designation.

l4a

APPENDIX 6

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

No. 06-3091/ 06-3624/ 06-3625/ 06-3894/

06-3895/ 06-3626

[Filed November 28, 2007]

CATHERINE BOSLEY, also known as

Catherine Balsley, et al.,

Plaintiffs -Appellees

v.

21 WFMJ, et al.,

Defendants

WFMJ TELEVISION, INC.; MICHELLE

NICKS; JOHN URCHEK

Defendants -Appellants

ee ee ee a a a Le a a Le a ae ae

MANDATE

Pursuant to the court’s disposition that was filed

- 07/13/2007 the mandate for this case hereby issues

| today.

15a

COSTS: NONE

Filing Fee..................... $

I i stnttntcanncnskinenia $

Total. ......:<.... $

{

16a

APPENDIX 7

In The United States Court Of Appeals

For The Sixth Circuit

Court Of Appeals Nos. 06-3091, 06-3624, 06-3625,

06-3626, 06-3894, and 06-3895

[Dated August 30, 2007]

CATHERINE BOSLEY, et al.,

Plaintiffs-Appellees,

VS.

WFMJ TELEVISION, INC., et al.,

)

)

)

)

)

)

)

)

Defendants-Appellants. )

)

Declaration Of David Marburger In Support Of

Response Of All Appellants And Their Counsel

To Appellees’ Motion For Sanctions And Costs

I, David Marburger, declare that the following is

true to the best of my knowledge:

1. I am familiar with the use of the United

States District Court, Northern District of Ohio’s

Electronic Case Filing (“ECF”) System.

17a

2. All counsel in the above-captioned case,

including myself, used ECF for filing documents in the

case of Bosley, et al. v. WF MJ Television, Inc., et al.,

Case No. 04-02529.

3. To electronically file a document with the

court, an attorney must do the following:

a. log into ECF with a valid login and

password;

b. select the type of document that the

attorney wishes to file from a court-

provided, drop-down menu of “Attorney

Events”;

c. the attorney may “modify docket text” by

adding the attorney’s own text after the

“Attorney Event” to better describe the

document;

d. enter the case number;

e. designate the party filing the document;

f. import the document and = any

attachments, which must all be in Adobe

Acrobat (“PDF”) format; and

g. submit the document by pressing the

“Next” button.

4. After the attorney submits the document, the

ECF system produces a “Notice of Electronic Filing.”

18a

5. The ECF system automatically sends the

“Notice of Electronic Filing” to the all attorneys of

record by e-mail.

6. The “Notice of Electronic Filing” contains

various details describing the filing, including the

docket text chosen by the attorney, the assigned docket

number, the filing attorney, and the date and time of

filing.

: 2 The filed document appears on the court’s

electronic docket almost immediately after filing.

8. The “Attorney Event” chosen by the filing

attorney appears on the electronic docket in regular

font.

9. If the attorney chooses to “modify docket

text,” any text added by the attorney appears on the

electronic docket in italics font.

10. After filing, the court clerk may change the

docket text. If the clerk does so, a notation appears on

the docket entry. The notation identifies the date of

the change, the initials of the clerk employee who

made the change in parentheses, and a_ short

description of the change.

11. At 5:45 pm on January 19, 2006, I received

a “Notice of Electronic Filing” by e-mail. This notice

said that the filed document was a “Notice of

Withdrawal of Motion to Enforce Settlement Agreement

Reached on November 23, 2005 filed by all plaintiffs”;

that the docket number assigned to that notice was

19a

346; and that the filing attorney was Shannon Polk

(Bosley’s counsel).

12. The font of the word “Notice” shows that

Shannon Polk chose “Notice” from the drop-down

menu of “Attorney Events” and then typed in all of the

text that appears in italics after the word “Notice.”

13. Sometime on the following day, January

20th, Docket No. 346 was modified on the court’s

electronic docket to read:

01/19/2006} 346} FILED IN ERROR - ATTORNEY

TO REFILE AS A MOTION -

Notice of Withdrawal of Motion

to Enforce Settlement Agreement

Reached on November 23, 2005

filed by all plaintiffs. Related

document(s)333. (Polk, Shannon)

Modified text on 1/20/2006 (S, T).

(Entered: 01/19/2006)

14. Based on my knowledge of the ECF system,

a clerk employee designated as “(S, T)” modified the

docket text by adding the following: “FILED IN

ERROR — ATTORNEY TO REFILE AS A MOTION.”

I declare under penalty of perjury that the

foregoing is true and correct. Executed on August 30,

2007.

/s/

David L. Marburger