Moffat, Marilyn et al v. Academy of Geriatric Physical Therapy

Filing 119

Transmission of Notice of Appeal, Docketing Statement, Order and Docket Sheet to Seventh Circuit Court of Appeals re: 117 Notice of Appeal, (Attachments: # 1 Docketing Statement, # 2 Order, # 3 Docket Sheet) (lak)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WISCONSIN

MARILYN MOFFAT, KAREN KEMMIS,
DANILLE PARKER and MARK RICHARDS,
Plaintiffs,
v.

Case No. 15-cv-626-JDP

ACADEMY OF GERIATRIC PHYSICAL
THERAPY,
Defendant.

SEVENTH CIRCUIT RULE 3(c)(1) DOCKETING STATEMENT
OF PLAINTIFFS-APPELLANTS MARILYN MOFFAT, KAREN KEMMIS,
DANILLE PARKER and MARK RICHARDS

Plaintiffs, Marilyn Moffat, Karen Kemmis, Danille Parker, and Mark Richards, in the
above named case, by and through undersigned counsel, hereby submit this Docketing Statement
pursuant to Circuit Rule 3(c)(1) of United States Court of Appeals for the Seventh Circuit and
states as follows:
I.

DISTRICT COURT JURISDICTION
The United States District Court for the Western District of Wisconsin (“District Court”)

had original jurisdiction over Plaintiffs’ claims pursuant to 28 U.S.C. §§ 1331 and 1338, as the
claims presented a federal question under the Copyright Act, 17 U.S.C. § 101 et seq. Plaintiffs
are four individuals; Defendant is the Academy of Geriatric Physical Therapy (“AOGPT”), an
individual membership professional organization representing physical therapists who specialize

in treating geriatric adults. The AOGPT has its principal place of business in the Western
District of Wisconsin.
II.

APPELLATE COURT JURISDICTION
The United States Court of Appeals for the Seventh Circuit has jurisdiction over

Plaintiffs’ appeal pursuant to 28 U.S.C. § 1291. There is one order for review under this appeal:
the Opinion and Order granting in part and denying in part Defendant’s motion for attorneys’
fees entered by the District Court on September 20, 2017. (Dkt. No. 116). Plaintiffs’ Notice of
Appeal was timely filed with the District Court on October 18, 2017.
III.

THIS IS AN APPEAL OF AN IMMEDIATELY APPEALABLE FINAL
DECISION
Plaintiffs appeal from the Opinion and Order entered on September 20, 2017, granting in

part and denying in part Defendant’s motion for attorneys’ fees. (Dkt. No. 1116). A statutory
award of attorneys’ fees is a final decision, appealable separately from a judgment on the merits.
See Kirtsaeng v. John Wiley & Sons, Inc., 136 S.Ct. 1979 (2016) (reviewing, vacating, and
remanding fee award under Section 505 of the Copyright Act, 17 U.S.C. § 505); Ray Haluch
Gravel Co. v. Central Pension Fund of Int’l Union of Operating Engineers and Participating
Emp’rs, 133 S.Ct. 2825 (2013) (a pending motion for attorneys’ fees does not keep a judgment
on the merits from being a final judgment for purposes of appeal).
IV.

ADDITIONAL REQUIREMENTS OF CIRCUIT RULE 3(c)(1)
This is a civil case that does not involve any criminal convictions. 28 U.S.C. § 1915(g) is

inapplicable. None of the parties to the litigation appear in an official capacity. This case does
not involve a collateral attack on a criminal conviction.
A prior appeal (Case No. 17-1432) was filed in this case on February 27, 2017, from the
Judgment entered by the District Court on January 27, 2017 (Dkt. No. 90), and the underlying

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Opinion and Order dated December 22, 2016 (Dkt. No. 61), granting Defendant’s motion for
summary judgment and dismissing Plaintiffs’ claims against Defendant. In response to the prior
notice of appeal, the Court of Appeals requested briefing from the parties concerning the
existence of appellate jurisdiction and suspended briefing pending further Court order. The
parties briefed the jurisdictional issue, which remains pending before the Court of Appeals.

Respectfully Submitted,
Dated: October 18, 2017

s/ James E. Griffith
James E. Griffith – Counsel of
Record (6269854)
Tiffany D. Gehrke (6299836)
Marshall, Gerstein & Borun LLP
233 South Wacker Drive
6300 Willis Tower
Chicago, Illinois 60606
(phone) 312-474-6300
(fax) 312-474-0448
[e-mail]
[e-mail]
Attorneys for Plaintiffs

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