20-632 (L) Waterkeeper All., Inc., v. Salt

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 COURT’S 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 “SUMMARY ORDER”). A PARTY CITING TO 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 22nd day of August, two thousand twenty-two.

PRESENT: GUIDO CALABRESI, GERARD E. LYNCH, RICHARD J. SULLIVAN, Circuit Judges. _____________________________________

WATERKEEPER ALLIANCE, INC.,

Plaintiff-Appellee, Nos. 20-632 (L), 20-3007 (Con), 21-2523 (Con), 21-2623 (Con), v. 21-2684 (Con), 21-3042 (Con)

JEFFREY SALT,

Appellant. *

* The Clerk of Court is respectfully directed to amend the official case caption as set forth above. FOR APPELLANT: JOSEPH A. VITA, The Law Office of Joseph A. Vita, Port Chester, NY.

FOR PLAINTIFF-APPELLEE: JASON L. LIBOU, Wachtel Missry LLP, New York, NY.

Consolidated appeals from orders of the United States District Court for the

Southern District of New York (Nelson S. Román, Judge).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the orders of the district court on appeal in

Nos. 20-632 and 21-2684 are AFFIRMED, and the appeals in Nos. 20-3007, 21-2523,

21-2623, and 21-3042 are DISMISSED for lack of appellate jurisdiction.

Appellant Jeffrey Salt appeals principally from an order of the district court

holding him in civil contempt of court and directing his imprisonment (the “Third

Contempt Order”). That order arises from an action commenced by

Plaintiff-Appellee Waterkeeper Alliance, Inc. (“Waterkeeper”) in February 2010

against Spirit of Utah Wilderness, Inc. (“SUW”) for trademark infringement,

breach of contract, and unfair competition under state and federal law. SUW is a

former member organization of Waterkeeper, a network of environmental

2 organizations dedicated to protecting waterways worldwide; Salt is SUW’s

principal and officer.

On May 8, 2015, after SUW failed to respond to Waterkeeper’s motion for

summary judgment for over a year, the district court entered a default judgment

against SUW and enjoined SUW and Salt from using Waterkeeper’s marks

(the “Default Judgment”). SUW and Salt did not comply, and in the four years

after the entry of the Default Judgment, the district court twice held SUW and Salt

in contempt for disregarding the Default Judgment, first in October 2017

(the “First Contempt Order”), and again in April 2019 (the “Second Contempt

Order”). The First and Second Contempt Orders directed SUW and Salt to

comply with the Default Judgment, provide a list of all instances in which they

violated the Default Judgment, pay fines for their noncompliance, and respond to

Waterkeeper’s written interrogatories and document requests. SUW and Salt

continued to disregard the Default Judgment and the First and Second Contempt

Orders, prompting the district court to issue the Third Contempt Order directing

Salt to surrender to the custody of the United States Marshal for the Southern

District of New York on March 23, 2020, unless he purged himself of the contempt

by complying fully with the Default Judgment and the First and Second Contempt

3 Orders. When Salt moved to alter or amend the Third Contempt Order under

Rule 59(e) of the Federal Rules of Civil Procedure, the district court denied the

motion as untimely and proceeded to consider the motion under Rule 60(b) and

find that it was without merit.

On October 22, 2021, after granting fourteen extensions of Salt’s surrender

date in light of the Covid-19 pandemic and Salt’s purported inability to travel due

to various medical ailments, the district court ordered Salt to show cause why it

should not issue a warrant for his arrest under

. Salt responded

with a letter claiming that he had complied with the “primary” obligations set

forth in the district court’s prior orders by ceasing to infringe on Waterkeeper’s

marks, Dist. Ct. Doc. No. 248 at 2; he also submitted financial documents and

medical records purporting to demonstrate his indigency and various medical

conditions that prevented him from complying with the remaining obligations.

In November 2021, the district court found that Salt failed to establish good cause

for his persistent noncompliance with its orders and issued a warrant for Salt’s

arrest. The district court nevertheless stayed the execution of the arrest warrant,

with the most recent stay expiring on April 27, 2022. Salt also filed an emergency

motion in this Court to stay the execution of the arrest warrant, which we denied.

4 On appeal, Salt challenges the district court’s orders (1) holding him in

contempt and directing his imprisonment, (2) denying his Rule 59(e) motion,

(3) issuing the arrest warrant, and (4) declining his requests to substitute counsel.

We review a district court’s contempt findings and denial of a motion to alter,

amend, or be relieved from a judgment for abuse of discretion, although our

review of a finding of contempt is “more exacting than [the abuse-of-discretion]

standard typically connotes.” Chevron Corp. v. Donziger,

(2d Cir.

2021) (internal quotation marks omitted); see also Devlin v. Transp. Commc’ns Int’l

Union,

, 131–32 (2d Cir. 1999) (“We review a district court’s ruling on

motions under [Rules 59 and 60] for . . . abuse of discretion.”).

The district court did not abuse its discretion in imposing the Third

Contempt Order. To demonstrate civil contempt, “a movant must establish that

(1) the order the contemnor failed to comply with is clear and unambiguous,

(2) the proof of noncompliance is clear and convincing, and (3) the contemnor has

not diligently attempted to comply in a reasonable manner.” Next Invs., LLC v.

Bank of China,

(2d Cir. 2021). All three elements are undoubtedly

met here. The Default Judgment and the First and Second Contempt Orders

clearly and unambiguously identified the exact steps required of Salt. For

5 instance, the First and Second Contempt Orders directed Salt to provide

Waterkeeper and the district court “with a complete list identifying with

specificity all instances in which . . . Salt has used [Waterkeeper’s trademarks] after

May 8, 2015,” Dist. Ct. Doc. No. 135 at 9, as well as “answers to any . . .

interrogatories and responsive documents” with respect to Salt’s personal finances

and compliance with the district court’s orders, Dist. Ct. Doc. No. 160 at 10. Salt

admits that he “has not complied to date” with either of these two obligations.

Appellant’s Br. at 13. Instead, he insists that the Covid-19 pandemic and his

medical conditions excused his noncompliance. But the Default Judgment and

the First and Second Contempt Orders were all imposed well before the outbreak

of the Covid-19 pandemic in 2020, and before Salt developed the ailments that

allegedly hospitalized him in 2021. Moreover, Salt has failed to submit any

evidence demonstrating that his alleged medical conditions – such as “cough,”

“shortness of breath,” “fever,” “fatigue,” and “dizziness,” Appellant’s Br. at 14 –

were so severe that it was “factually impossible” for him to comply with the

district court’s orders in the five-year span between the entry of the Default

Judgment and the imposition of the Third Contempt Order, Badgley v. Santacroce,

(2d Cir. 1986) (quoting United States v. Rylander,

, 757

6 (1983)). The district court therefore did not abuse its discretion in imposing the

Third Contempt Order.

Nor did the district court abuse its discretion by denying Salt’s Rule 59(e)

motion. Rule 59(e) provides that “[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). Rule 6(b)(2) further prohibits a court from extending the time to act

under Rule 59(e). See Fed. R. Civ. P. 6(b)(2). Here, Salt did not file his Rule 59(e)

motion until February 20, 2020 – twenty-nine days after the district court issued

the Third Contempt Order. And while “[a]n untimely motion for reconsideration

is treated as a Rule 60(b) motion,” Lora v. O’Heaney,

(2d Cir. 2010),

a request under Rule 60(b) may be granted only in “exceptional circumstances,”

Motorola Credit Corp. v. Uzan,

(2d Cir. 2009).

Salt argues that the district court’s denial of his motion construed as a

Rule 60(b) request was an abuse of discretion because the district court (1) failed

to consider the additional authorities and arguments presented by Salt’s

court-appointed counsel, and (2) erroneously ruled that a nonparty like Salt could

be imprisoned for contempt of court. We disagree. Rule 60(c)(1) provides that

“[a] motion under Rule 60(b) must be made within a reasonable time.” Fed. R.

7 Civ. P. 60(c)(1). Salt, through his counsel, attempted to submit additional

authorities and arguments on October 15, 2021, more than twenty months after the

district court entered the Third Contempt Order on January 22, 2020, and more

than eighteen months after counsel was first appointed to represent him in the

civil contempt proceeding on March 24, 2020. On this record, we cannot say that

the district court’s refusal to consider the untimely supplement was an abuse of

discretion. As to Salt’s argument that the district court erred in imposing

imprisonment on a nonparty for contempt of court, that argument had already

been raised by Salt, decided by the district court, and rejected by us on appeal.

See Waterkeeper All., Inc. v. Salt,

, 543 n.2 (2d Cir. 2020) (“Salt argues

in passing that the district court did not have the power to hold him in civil

contempt as a non-party. This is not the case.”).

As for the appeals raised in Nos. 20-3007, 21-2523, 21-2623, and 21-3042, we

dismiss them for lack of appellate jurisdiction. Put simply, none of the orders

challenged in those appeals constitutes a final decision under

; an

appealable interlocutory order under

; or a collateral order subject

to the collateral order doctrine, see Funk v. Belneftekhim,

(2d Cir.

2017). Moreover, because we can “conclusively decide” Salt’s challenge to the

8 Third Contempt Order and denial of his Rule 59(e) motion without considering

the other appeals, we decline to exercise pendent appellate jurisdiction to review

the otherwise “non-appealable issue[s].” Blue Ridge Invs., L.L.C. v. Republic of

Argentina,

(2d Cir. 2013).

We have considered Salt’s remaining arguments and find them to be

without merit. Accordingly, we AFFIRM the orders of the district court on

appeal in Nos. 20-632 and 21-2684, and DISMISS the appeals in Nos. 20-3007,

21-2523, 21-2623, and 21-3042 for lack of appellate jurisdiction.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court

9