17‐1507‐cv Arrowhead Capital Fin., Ltd. v. Seven Arts Entmʹt, Inc., et al.

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURTʹS LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION ʺSUMMARY ORDERʺ). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 30th day of May, two thousand eighteen.

PRESENT: RICHARD C. WESLEY, DENNY CHIN, Circuit Judges, DENISE COTE, District Judge.*

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ARROWHEAD CAPITAL FINANCE, LTD., Plaintiff‐Appellee,

v. 17‐1507‐cv

SEVEN ARTS ENTERTAINMENT, INC. and SEVEN ARTS FILMED ENTERTAINMENT LOUISIANA LLC, Defendants‐Appellants.

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* Denise Cote, of the United States District Court for the Southern District of New York, sitting by designation.

FOR PLAINTIFF‐APPELLEE: BARRY L. GOLDIN, ESQ., Allentown, Pennsylvania.

FOR DEFENDANTS‐APPELLANTS: RAYMOND J. MARKOVICH, ESQ., West Hollywood, California.

Appeal from the United States District Court for the Southern District of

New York (Failla, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the case is REMANDED.

Defendants‐appellants Seven Arts Entertainment, Inc. (ʺSAEʺ) and Seven

Arts Filmed Entertainment Louisiana LLC (ʺSAFELAʺ) appeal from a judgment entered

May 3, 2017 and an opinion and order entered September 16, 2016. Among other

things, the September 16, 2016 opinion granted in part and denied in part the motion of

plaintiff appellee Arrowhead Capital Finance, Ltd. (ʺArrowheadʺ) for summary

judgment, denied defendantsʹ cross‐motion for summary judgment, and imposed

sanctions on defendants. The district court also entered a May 2, 2017 opinion and

order denying Arrowheadʹs motion to strike SAEʹs answer, granting Arrowheadʹs

motion to strike SAFELAʹs answer and for entry of a default judgment against SAFELA,

and denying without prejudice Arrowheadʹs motion for turnover, attachment, and

restraint. The May 3, 2017 judgment stated as follows:

[I]t is . . . ORDERED, ADJUDGED AND DECREED: That for the reasons stated in the Courtʹs Opinion and Order dated May 2, 2017, Plaintiffʹs motion to strike SAEʹs answer and to enter default judgment for Plaintiff is denied. 2

Plaintiffʹs motion to strike SAFELAʹs answer and enter default judgment for Plaintiff is granted. Plaintiffʹs motion for turnover, attachment, and restraint is denied without prejudice.

Sp. App. at 94. We assume the partiesʹ familiarity with the underlying facts, procedural

history, and issues on appeal.

ʺAt oral argument before this Court, we raised the issue of our

jurisdiction sua sponte, as we are obliged to do when it is questionable.ʺ Henrietta D. v.

Giuliani,

(2d Cir. 2001). The parties thereafter briefed the question of

appellate jurisdiction and they appear to agree that the district court did not enter an

appealable final judgment.1 Indeed, the May 3rd ʺjudgmentʺ merely grants

Arrowheadʹs motion for a default judgment as to SAFELA and denies the motion as to

SAE; it does not specify what relief is being awarded against SAFELA. Nor does it

appear that a separate default judgment was actually entered against SAFELA. See Fed.

R. Civ. P. 58(a) (ʺEvery judgment and amended judgment must be set out in a separate

document . . . .). While the September 16, 2016 opinion and order granted Arrowheadʹs

motion for summary judgment in part, that is, as to SAE, the district court did not enter

a separate or final judgment spelling out the relief that was being awarded against SAE.

Arrowhead also acknowledges that the district courtʹs various rulings did not dispose

of Causes of Action 3‐8 of the First Amended Complaint. See Henrietta D.,

As discussed below, certain claims were not disposed of, and the district court did not issue a certification pursuant to Fed. R. Civ. P. 54(b) or

(b) as to any of its rulings. 3

180 (noting that declaratory judgment determining liability but ʺleaving the measure of

prospective relief for another dayʺ is not a final judgment). Nor does there appear to be

a money judgment against defendants that could be enforced, as there is no judgment

against SAE or SAFELA with a specified dollar amount. There also appear to be open

questions as to the calculation of interest.

At oral argument and in post‐argument briefing, Arrowhead has stated

that it is abandoning Causes of Action 3‐8. Though Arrowhead is right that we can, in

our discretion, allow a party on appeal to abandon claims to preserve our jurisdiction,

see Caspary v. La. Land & Expl. Co.,

, 191‐92 (2d Cir. 1984), we decline to

exercise our discretion to do so, as the record is too unclear to allow for a clear

resolution of this appeal.

Accordingly, we REMAND to the district court, pursuant to United States

v. Jacobson,

(2d Cir. 1994), for further proceedings. Once the district court

enters an appealable judgment, either party may reinstate the appeal by filing with the

Clerk of Court, within 30 days, a letter, attaching a copy of the relevant judgment or

supplemental order and requesting that the appeal be reinstated. Any reinstated appeal

will be assigned to this panel. The mandate shall issue forthwith.

FOR THE COURT: Catherine OʹHagan Wolfe, Clerk

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