FEDERAL TRADE COMMISSION v. Kimberly Friday, Receiver-Appellee. (2021)

United States Court of Appeals, Ninth Circuit.2021-07-28No. No. 20-17324

Summary · law.co

Holding. The court dismissed as untimely the appeal challenging the denial of the representation motion and affirmed the district court's denial of the motion to dissolve or modify the preliminary injunction.

The Federal Trade Commission appealed a district court decision regarding a preliminary injunction in a case involving defendants and a court-appointed receiver. The defendants filed two motions: one seeking permission to have different legal representation and another requesting that the preliminary injunction be dissolved or modified. The appellate court found that the appeal challenging the representation denial came too late—filed nearly four months after the order was entered, violating strict appeal filing deadlines. The court therefore had no authority to consider that portion of the appeal.

Regarding the preliminary injunction challenge, the appellate court had proper jurisdiction and examined whether the district judge abused its authority in refusing to modify or dissolve the injunction. The defendants argued that the Supreme Court's decision to hear a related case about the FTC's powers constituted a significant change in law justifying the injunction's removal. The appellate court disagreed, concluding that merely granting review in another case, without any decision on the merits, did not meet the standard for modifying an existing injunction. The court left open the possibility that the Supreme Court's eventual ruling in that related case might later affect the injunction's validity.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Timeliness of appeal under Federal Rules of Appellate Procedure
Standard for modifying or dissolving a preliminary injunction
Whether Supreme Court certiorari grant constitutes significant change in law

Procedural posture

Defendants-Appellants appealed the district court's orders denying their motion to allow representation and their motion to dissolve or modify a preliminary injunction.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

MEMORANDUM ***

Defendants-Appellants appeal the district courts order denying their motion to allow representation and the order denying their motion to dissolve or modify the preliminary injunction. We dismiss as untimely the challenge to the denial of the motion to allow representation. We have jurisdiction under 28 U.S.C. § 1292(a)(1) over the challenge to the denial of the motion to dissolve or modify the preliminary injunction, and we affirm.

The order denying the motion to allow representation was entered on July 29, 2020, and the notice of appeal was filed on November 27, 2020. Even assuming, arguendo, that the order on representation is an appealable collateral order, the appeal of that order was untimely. Fed. R. App. P. 4(a)(1)(B); see SEC v. Cap. Consultants LLC, 453 F.3d 1166, 1173 (9th Cir. 2006) (per curiam) (“[T]he time for appeal of an appealable collateral order begins to run on the date the court enters the order.”). We therefore dismiss the appeal as to that order. See Bowles v. Russell, 551 U.S. 205, 209, 127 S.Ct. 2360, 168 L.Ed.2d 96 (2007) (“[T]he taking of an appeal within the prescribed time is mandatory and jurisdictional.” (internal quotation marks omitted)).

Although Defendants-Appellants challenge the propriety of the preliminary injunction, “we do not consider the propriety of the underlying order.” Sharp v. Weston, 233 F.3d 1166, 1169–70 (9th Cir. 2000). Rather, the question we have jurisdiction to address is whether the district court abused its discretion in denying the motion to modify or dissolve the preliminary injunction. See Karnoski v. Trump, 926 F.3d 1180, 1198 (9th Cir. 2019) (per curiam). Defendants-Appellants “bear[ ] the burden of establishing that a significant change in facts or law warrants revision or dissolution of the injunction.” Sharp, 233 F.3d at 1170. Despite the absence of any ruling from the Supreme Court at the time this appeal was filed, Defendants-Appellants argue that the Courts grant of the petition for writ of certiorari in AMG Capital Management, LLC v. FTC, ––– U.S. ––––, 141 S. Ct. 194, 207 L.Ed.2d 1118 (2020), constituted a significant change in the law. The district court correctly concluded to the contrary, and we affirm its denial of the motion to dissolve or modify the preliminary injunction. We leave it to the district court in the first instance to consider whether and to what extent the decision in AMG Capital Management, LLC v. FTC, ––– U.S. ––––, 141 S. Ct. 1341, 209 L.Ed.2d 361 (2021), bears on the preliminary injunction.

DISMISSED IN PART and AFFIRMED IN PART.