Cambridge University Press, et al v. J.L. Albert, et al

Filing 34

MOTION to dismiss appeal for lack of appellate jurisdiction., to consolidate appeals 12-14676 and 12-15147 filed by Appellees J. L. Albert, Mark P. Becker, Kenneth R. Bernard, Jr., Robert F. Hatcher and W. Mansfield Jennings, Jr.. Motion is Opposed [6689964-1] (ECF: Stephen Schaetzel)

Case No. 12-14676-FF

UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

CAMBRIDGE UNIVERSITY PRESS, et al.,
Plaintiffs-Appellants,
v.

MARK P. BECKER, et al.,
Defendants-Appellees.

Appeal From The United States District Court
For The Northern District Of Georgia
Case No. 1:08-cv-1425-ODE
APPELLEES’ MOTION TO DISMISS OR CONSOLIDATE
Anthony B. Askew
Stephen M. Schaetzel
Robin L. Gentry
Walter Hill Levie, III
McKeon, Meunier, Carlin & Curfman , LLC
817 W. Peachtree Street, Suite 500
Atlanta, Georgia 30308
Tel: [phone]
Fax: [phone]
Counsel for Defendants-Appellees

October 12, 2012

CERTIFICATE OF INTERESTED PERSONS AND
CORPORATE DISCLOSURE STATEMENT
The following trial judges, attorneys, persons, associations of persons, firms,
partnerships, and corporations are known to have an interest in the outcome of this
case or appeal:
Albert, J.L.
Alford, C. Dean
Askew, Anthony B., counsel for Appellees
Association of American Publishers
Ballard Spahr, LLP, counsel for Appellees
Banks, W. Wright, Jr., counsel for Appellees
Bates, Mary Katherine, counsel for Appellees
Becker, Mark P.
Bernard, Kenneth R., Jr.
Bishop, James A.
Bloom, Jonathan, counsel for Appellants
Board of Regents of the University System of Georgia
Bondurant, Mixson & Elmore, LLP, counsel for Appellants
Cambridge University Press
Carter, Hugh A., Jr.

C-1 of 4

Cleveland, William H.
Cooper, Frederick E.
Copyright Clearance Center
Ellis, Larry R.
Evans, Hon. Orinda D., United States District Judge
Gentry, Robin L., counsel for Appellees
Georgia State University
Griffin, Rutledge A., Jr.
Harbin, John Weldon, counsel for Appellees
Hatcher, Robert F.
Henry, Ronald
Hopkins, C. Thomas, Jr.
Hurt, Charlene
Jennings, W. Mansfield, Jr.
Jolly, James R.
King & Spalding, LLP, counsel for Appellees
Krugman, Edward B., counsel for Appellants
Larson, Todd D., counsel for Appellants
Leebern, Donald M., Jr.

C-2 of 4

Lerer, R.O., retired counsel for Appellees
Levie, Walter Hill, III, counsel for Appellees
Lynn, Kristen A., counsel for Appellees
McKeon Meunier Carlin & Curfman, LLC, counsel for Appellees
McMillan, Eldridge
Miller, Richard William, counsel for Appellees
Moffit, Natasha Horne, counsel for Appellees
NeSmith, William, Jr.
Olens, Samuel S., counsel for Appellees
Oxford University Press USA
Oxford University Press, Inc.
Oxford University Press, LLC
Palm, Risa
Patton, Carl V.
Poitevint, Doreen Stiles
Potts, Willis J., Jr.
Pruitt, Neil L., Jr.
Quicker, Katrina M., counsel for Appellees
Rains, John H., IV, counsel for Appellants

C-3 of 4

Rich, R. Bruce, counsel for Appellants
Rodwell, Wanda Yancey
SAGE Publications, Inc.
Schaetzel, Stephen M., counsel for Appellees
Seamans, Nancy
Singer, Randi W, counsel for Appellants
State of Georgia
Stelling, Kessel, Jr.
Tarbutton, Benjamin J., III
The Chancellor, Masters and Scholars of the University of Oxford
Tucker, Richard L.
Vigil, Allan
Volkert, Mary Josephine Leddy, counsel for Appellees
Walker, Larry
Weil Gotshal & Manges, LLP, counsel for Appellants
Whiting-Pack, Denise E., counsel for Appellees
Wilheit, Philip A., Sr.

C-4 of 4

Appellees (“GSU”) request that the Court dismiss this appeal for lack of
subject matter jurisdiction or in the alternative consolidate it with the second
appeal filed in this case, Appeal No. 12-15147-FF.1 The Court lacks subject matter
jurisdiction over this appeal because the district court’s final judgment entered on
September 30, 2012 divested the Court of jurisdiction of this interlocutory appeal
concerning an injunction taken pursuant to 28 U.S.C. § 1292. Alternatively, GSU
respectfully requests that the Court consolidate this appeal with the appeal noticed
by Appellants on October 2, 2012 relating to the same Orders that are the subject
of the instant appeal.
I.

FACTUAL BACKGROUND
This Appeal was taken from a non-final order of the district court granting

interlocutory injunctive relief. In their September 10, 2012 Notice of Appeal (the
“First Appeal”), Appellants stated that they appealed from the district court’s
August 10, 2010 Order and sought review of a number of other orders entered by
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Appellants have proposed a joint motion to consolidate the two appeals but do not
agree to dismissal of the First Appeal. Appellees seek merely to comply with
proper procedure. The district court’s August 10, 2012 Order, while initially
appealable under 28 U.S.C. §1292, is at least potentially “finalized” by the district
court’s September 30, 2012 final judgment. Assuming that to be the case, the
September Order has stripped this Court of jurisdiction of the First Appeal. See
Birmingham Fire Fighters Asso’c 117 v. City of Birmingham, 603 F.3d 1248, 1254
(11th Cir. 2010) and discussion below. Appellees respectfully submit that they
cannot consent to consolidation of a proper appeal from the September Order with
a now improper appeal from the August Order and thus file the instant motion to
dismiss or consolidate.
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the district court. See Exhibit A, First Notice of Appeal. The Appellants’ Civil
Appeal Statement, filed on September 26, 2012, identified the following eight (8)
issues:
1. The district court’s clearly erroneous and legally incorrect
ruling regarding the ownership of certain of Appellant’s
copyrights.
2. The district court’s misinterpretation and misapplication of
the fair use doctrine.
3. The district court’s failure to recognize that copyright law is
media neutral.
4. The district court’s exclusion of evidence relevant to the
proper consideration of fair use.
5. The district court’s erroneous finding that ‘the 2009 copyright
policy significantly reduced the unlicensed copying of
Plaintiffs’ works (and by inference, the works of other
publishers).’
6. The district court’s failure to order appropriate injunctive
relief.
7. The district court’s erroneous determination that Appellees
were entitled to reasonable attorney’s fees and costs.
8. The district court’s erroneous findings on contributory
copyright liability.
Exhibit C, Appellants’ Civil Appeal Statement.
Appellants stated in the First Appeal that the August 10, 2012 Order was a
“final, appealable order.” Exhibit A at 1. As explained by the district court in its

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Order of September 30, 2012 “[t]he Court did not intend its Order of August 10,
2012 to be a final order.” Exhibit D, Order of September 30, 2012, Dkt. No. 462 at
4 n.2. Accordingly, the district court entered its final order subsequently on
September 30, 2012 and the clerk entered judgment on the same day. See id. at 1112.
The Court’s September 30 Order directed the district court clerk to enter
final judgment as follows:
2. Injunctive relief is entered as follows: Defendants are hereby
ORDERED and DIRECTED to maintain copyright policies for
Georgia State University which are not inconsistent with the Court's
Orders of May 11, 2012 and August 10, 2012. Defendants are
ORDERED and DIRECTED to disseminate to faculty and relevant
staff at Georgia State the essential points of this Court's aforesaid
rulings. The Court will retain jurisdiction for the sole purpose of
enforcing these Orders.
Exhibit D at 12. As ordered by the district court, the Judgment contained this
injunction. Exhibit F, Final Judgment entered by Clerk of the District Court, Dkt.
No. 463 at 2. This injunction incorporates the same relief as the injunction entered
in the Court’s non-final August 10 Order:
August 10 Injunction
Defendants are hereby
ORDERED AND
DIRECTED to maintain
copyright policies for
Georgia State University
which are not inconsistent
with the Court's Order of

September 30 Injunction
Defendants are hereby
ORDERED and
DIRECTED to maintain
copyright policies for
Georgia State University
which are not inconsistent
with the Court's Orders of

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May 11, 2012 and August
10, 2012.
Defendants are
ORDERED and
DIRECTED to
disseminate to faculty and
relevant staff at Georgia
State the essential points
of this Court's aforesaid
rulings. The Court will
retain jurisdiction for the
sole purpose of enforcing
these Orders.

May 11, 2012 and this
[August 10, 2012] Order.
Defendants are also
ORDERED AND
DIRECTED to
disseminate to faculty and
relevant staff at Georgia
State the essential points
of this Court's
rulings. The Court will
retain jurisdiction for the
sole purpose of enforcing
these Orders.

Exhibit B, Order of August 10, 2012, Dkt. No. 441 at 11, and Exhibit D at 11
(underlining and brackets showing differences).
Following entry of the Final Judgment, Appellants filed a second notice of
appeal on October 2, 2012 (the “Second Appeal”) appealing the district court’s
“September 30, 2012 Order and Final Judgment [Exhibits D and F], as well as any
and all prior orders in this case, including but not limited to the orders identified”
in the First Appeal. Exhibit E, Second Notice of Appeal at 1. As of the filing of
this Motion, GSU has not received Appellant’s Civil Appeal Statement.
II.

ARGUMENT AND CITATION TO AUTHORITIES
A. This Court Lacks Subject Matter Jurisdiction Over this Appeal.
The Court’s September 30 Order divested this Court of subject matter

jurisdiction over the instant appeal. “[W]hen a final injunction incorporates the
same relief as an interlocutory injunction, an appeal is properly taken only from the

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final order.” Id., citing Burton v. Georgia, 953 F.2d 1266, 1272 n.9 (11th Cir.
1992) (“once a final judgment is rendered, the appeal is properly taken from the
final judgment, not the preliminary injunction.”); SEC v. First Fin. Group of Tex.,
645 F.2d 429, 433 (5th Cir. 1981) (“Once an order of permanent injunction is
entered . . ., the order of preliminary injunction is merged with it, and appeal is
proper only from the order of permanent injunction.”).
The First Appeal was from an Order granting only interlocutory injunctive
relief; it was not a final order as Appellants incorrectly stated in their First Notice
of Appeal. See Exhibit A at 1. The August 10 Order, referenced in Appellants’
First Notice of Appeal, granted declaratory and injunctive relief as well as
awarding attorneys’ fees and costs to GSU. A final judgment was not entered until
after the district court entered an order determining the amount of attorneys’ fees
and costs. Accordingly, this Court did not have jurisdiction under 28 U.S.C. §
1291, which requires a final judgment.
Even though this Court did not originally have jurisdiction pursuant to 28
U.S.C. § 1291, it did have subject matter jurisdiction over the First Appeal
pursuant to 28 U.S.C. § 1292 which provides an exception to § 1291’s finaljudgment rule. Pursuant to § 1292 a federal circuit court may hear appeals from
“[i]nterlocutory orders of the district courts of the United States . . . granting,

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continuing, modifying, refusing, or dissolving injunctions . . . .” 28 U.S.C. §
1292(a)(1).
However, the Second Appeal has divested this Court of subject matter
jurisdiction over the First Appeal. The district court’s September 30 injunction
incorporates the same relief as the injunction contained in the August 10 Order.
Moreover, the September 30 Order was a final order: the district court explicitly
found that “there are no remaining issues to be decided” and directed the clerk to
enter final judgment. Exhibit D at 10-11. The September Order and Judgment
therefore finalized the August 10 injunction and “stripped this Court of its
jurisdiction.” Birmingham Fire Fighters Asso’c 117 v. City of Birmingham, 603
F.3d 1248, 1254 (11th Cir. 2010).
B. Alternatively, This Appeal Should be Consolidated with the Appeal
Noticed by Appellants on October 2, 2012.
The orders and issues in this First Appeal overlap those in the Second
Appeal. The difference between the two Notices of Appeal is that the Second
Notice of Appeal includes the district court’s September 30, 2012 attorneys’ fees
and costs order and the Final Judgment. In fact, the Second Notice of Appeal
specifically states that Appellants are seeking review of every order contained in
their First Notice of Appeal. See Exhibit E.

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This Court routinely consolidates appeals brought by different parties
concerning the same case. See Fed. Rule App. Procedure 3(b)(2). This Court also
routinely grants motions to consolidate appeals of the same case brought by the
same party. See, e.g., Santhuff v. Seitz, 285 Fed. App’x. 939, 943 (11th Cir. 2010)
(granting motion to consolidate appeals brought by same party); Nicholson v.
Shafe, 558 F.3d 1266, 1270 (11th Cir. 2009). Consolidation will conserve the
resources of both this Court and the parties. Accordingly, consolidation is
appropriate because Appellant’s Second Appeal completely encompasses the
orders Appellants seek to be reviewed in the First Appeal.
III.

CONCLUSION
For the foregoing reasons, GSU requests that this Court dismiss the First

Appeal or consolidate it with the Second Appeal.
Respectfully submitted this 12th day of October 2012.
SAMUEL S. OLENS
Georgia Bar No. 551540
Attorney General
W. WRIGHT BANKS, JR.
Georgia Bar No. 036156
Deputy Attorney General
DENISE E. WHITING-PACK
Georgia Bar No. 558559
MARY JO VOLKERT
Georgia Bar No. 728755
Assistant Attorney General
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MCKEON, MEUNIER, CARLIN &
CURFMAN, LLC
/s/ Anthony B. Askew
Anthony B. Askew
Georgia Bar No. 025300
Special Assistant Attorney General
Stephen M. Schaetzel
Special Assitant Attorney General
Georgia Bar No. 628653
Robin L. Gentry
Georgia Bar No. 289899
Walter Hill Levie, III
Georgia Bar No. 415569
McKeon, Meunier, Carlin & Curfman, LLC
817 W. Peachtree Street, N.W., Suite 500
Atlanta, Georgia 30308
Phone: [phone]
Fax: [phone]
Email: [e-mail]
[e-mail]
[e-mail]
[e-mail]
Counsel for Defendants-Appellees

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CERTIFICATE OF SERVICE
The undersigned hereby certifies that, on this 12th day of October 2012, I have
served a true and correct copy of the APPELLEES’ MOTION TO DISMISS OR
CONSOLIDATE by United States mail on the following attorneys of record:
Edward B. Krugman
[e-mail]
Georgia Bar No. 429927
John H. Rains IV
Georgia Bar No. 556052
BONDURANT, MIXSON & ELMORE, LLP
1201 West Peachtree Street NW, Suite 3900
Atlanta, GA 30309
Telephone: [phone]
Facsimile: [phone]
R. Bruce Rich
Jonathan Bloom
Randi Singer
Todd D. Larson
WEIL, GOTSHAL & MANGES LLP
767 Fifth Avenue
New York, New York 10153
Telephone: [phone]
Facsimile: [phone]
/s/ Anthony B. Askew
Anthony B. Askew
Georgia Bar No. 025300
McKeon, Meunier, Carlin & Curfman, LLC
817 W. Peachtree Street, N.W., Suite 500
Atlanta, Georgia 30308
Phone: [phone]
Fax: [phone]
Email: [e-mail]

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