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Cree, Inc. v. MSI Lighting, Inc.

United States District Court, M.D. North Carolina

November 7, 2017

CREE, INC. and CREE HONG KONG, LIMITED, Plaintiffs,
v.
MSI LIGHTING, INC. and MSI, LLC, Defendants. MSI LIGHTING, INC. and MSI, LLC, Plaintiffs,
v.
CREE, INC. and CREE HONG KONG LIMITED, Defendants.

          MEMORANDUM OPINION AND ORDER

          N. Carlton Tilley, Jr. Senior United States District Judge

         This matter is before the Court on a Motion for a New Trial [Doc. #195] and a Motion to Alter or Amend the Judgment [Doc. #196] by Plaintiffs MSi Lighting, Inc. and MSi, LLC (collectively referred to as “MSi”) and a Motion for Leave to File a Surreply in Opposition to MSi's Motion for New Trial or to Amend Judgment [Doc. #210] by Defendants Cree, Inc. and Cree Hong Kong Limited (collectively referred to as “Cree”). Cree's motion is granted, and, for the reasons explained herein, MSi's motions are denied.

         I.

         In August 2015, MSi filed an action in the Southern District of California against Cree and, three weeks later, Cree filed an action in this Court against MSi. After the action pending in the Southern District of California was transferred here, the two cases were consolidated and MSi asserted its claims against Cree as counterclaims along with its Answer. (See, e.g., Consent Order Consolidating Cases [Doc. #32].) The Court granted summary judgment in favor of Cree on its claim against MSi for money due and on several of MSi's claims against Cree. (Order [Doc. #124].) That left MSi's claims against Cree for breach of express warranty, fraud, and unfair and deceptive trade practices for trial. (See id.)

         After a pre-trial hearing lasting six days, a jury was impaneled on July 18, 2017. On Thursday, August 3, after closing arguments and instructions from the Court, the jury retired to deliberate. The following Monday, August 7, jurors returned a verdict in favor of Cree. (See Jury Verdict [Doc. #193].) Judgment was entered on August 15, 2017. (J. on Jury Verdict [Doc. #194].)

         On September 13, 2017, MSi filed a Motion for a New Trial and Motion to Alter or Amend the Judgment pursuant to Rules 59(a)(1)(A) and Rule 59(e) of the Federal Rules of Civil Procedure, respectively. The primary bases for MSi's motions are verdicts alleged to be inconsistent, against the clear weight of the evidence, and in contradiction to the Court's instructions. (See Mots.) In addition, MSi argues that the Court erred when it failed to include a separate instruction for unfair and deceptive trade practices and when it used the word “damages” instead of “damage” or “harm” as part of the proximate cause element of fraud. (Id.) On September 14, 2017, MSi also filed a Notice of Appeal with the Fourth Circuit Court of Appeals. (Notice of Appeal [Doc. #202].)

         Cree argues that MSi's motions are untimely, as they were due September 12, 2017, but were filed at 12:00 a.m. and 12:01 a.m. on September 13, 2017. (Resp. in Opp'n to Mot. for New Trial or, in the Alternative, to Amend or Alter J. at 1-2 [Doc. #204]; see Notices of Elec. Filing [Docs. #195, 196, 208-3, 208-4].) MSi replied that the Court has discretion to rule on the motions and, in the alternative, requested the Court consider its motions under Rule 60(b). (MSi's Reply to Mots. Pursuant to Rule 59(a) & (e) at 3-4 [Doc. #208].) In its Surreply, Cree contests the propriety of considering MSi's motions pursuant to Rule 60(b).[1](Surreply in Opp'n to Mot. for New Trial or, in the Alternative, to Amend or Alter J. (“Surreply in Opp'n”) at 1-2 [Doc. #210-1].)

         In the meantime, after MSi filed its Notice of Appeal and the Fourth Circuit requested that this Court notify it once an order was entered disposing of MSi's post-trial motions, Cree's counsel corresponded with the Fourth Circuit and argued that MSi's post-trial motions were untimely and, therefore, requested that MSi's appeal be docketed as of the date it filed the Notice of Appeal. (Decl. of Rebecca K. Lindahl, Exs. 1 & 2 [Doc. # 210-2].) The Fourth Circuit then requested MSi's counsel respond, which she did by stating, among other things, “Cree's representation regarding the untimeliness of MSi's Rule 59 motions are accurate[.]” (Decl. of Lindahl, Exs. 3 & 4.) Nevertheless, MSi argued that this Court had discretion to rule on the motions and requested that its appeal not be docketed until the disposition of those motions. (Decl. of Lindahl, Ex. 4.) Ultimately, the Fourth Circuit responded, “The appeal will be placed on the docket[.]” (Decl. of Lindahl, Ex. 6.)

         II.

         As a preliminary matter, although MSi's appeal has been docketed, this Court retains jurisdiction to determine MSi's pending post-trial motions. As explained below, MSi's untimely Rule 59 motions are considered as timely Rule 60(b) motions. The Fourth Circuit has instructed that “when a Rule 60(b) motion is filed while a judgment is on appeal, the district court has jurisdiction to entertain the motion, and should do so promptly.” Fobian v. Storage Tech. Corp., 164 F.3d 887, 891 (1999). This “sav[es] judicial resources and avoid[s] expense and delay” which “accords with the overarching mandate of the Federal Rules of Civil Procedure that the rules ‘shall be construed to secure the just, speedy, and inexpensive determination of every action.'” Id. (quoting Fed.R.Civ.P. 1).

         III.

         Rule 59(a) of the Federal Rules of Civil Procedure provides, in relevant part, that “[t]he court may, on motion, grant a new trial on all or some of the issues - and to any party - as follows: (A) after a jury trial, for any reason for which a new trial has heretofore been granted in an action at law in federal court . . . .” However, “[a] motion for a new trial must be filed no later than 28 days after the entry of judgment.” Fed.R.Civ.P. 59(b) (emphasis added). Likewise, “[a] motion to alter or amend a judgment must be filed no later than 28 days after the entry of the judgment.” Fed.R.Civ.P. 59(e) (emphasis added). Although Rule 6(b) of the Federal Rules of Civil Procedure affords the court discretion to extend some deadlines for good cause, the deadlines in Rules 59(b) and 59(e) are explicitly excluded from the exercise of such discretion. “A court must not extend the time to act under Rules . . . 59(b), . . . and (e), . . . .” Fed.R.Civ.P. 6(b)(2). As the Fourth Circuit has said, pursuant to Rule 6(b), “[i]t is clear” that district courts are “without power to enlarge the time period for filing a Rule 59[] motion.” Alston v. MCI Commc'ns Corp., 84 F.3d 705, 706 (1996) (finding that the district court's grant of an extension of time to file a Rule 59(e) motion “was not authorized under the Federal Rules of Civil Procedure”); see also, e.g., Blue v. Int'l Bhd. of Elec. Workers Local Union 159, 676 F.3d 579 (7th Cir. 2012) (“The fact that the district court purported to extend the time past that 28-day period is of no moment. Civil Procedure Rule 6(b)(2) prohibits a court from doing exactly this.”); Miracle of Life, L.L.C. v. N. Am. Van Lines, Inc., 447 F.Supp.2d 519, 520 (D.S.C. 2006) (finding that it was “without authority to extend the . . . deadline”); In re Quarles, No. 96-00104-C, 1997 WL 578707, at *3 (W.D. Va. Aug. 25, 1997) (“Rule 59(e)'s clear ‘no later than' language allows no exceptions . . . . As well, federal authority instructs that the court is not allowed to extend the time in which to make a Rule 59(e) motion.”)

         This is true even when a party files a Rule 59 motion almost on time or when technical problems arise when filing electronically. For example, in Miracle of Life, L.L.C., the plaintiffs filed their Rule 59(e) motion at 1:00 a.m. on January 24, 2006 when it was due on January 23, 2006. 447 F.Supp.2d at 520. The plaintiffs argued that the defendants were “being ‘hyper-technical' in urging the court to disregard the filing” and that they did not file their motion until 1:00 a.m. due to technical difficulties converting their WordPerfect document into a PDF. Id.

         Nevertheless, the court recognized that neither Rule 59(e) nor Rule 6(b) afforded it any authority to extend the filing deadline. Id. In Justice v. Town of Cicero,Illinois, 682 F.3d 662, 663 (2012), the Seventh Circuit artfully described the dangers of electronic filing when the plaintiff tried to have the district court consider ...


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