Case: 21-1106 Document: 44 Page: 1 Filed: 02/08/2022

NOTE: This disposition is nonprecedential.

United States Court of Appeals for the Federal Circuit ______________________

PIETRO PASQUALE-ANTONI SGROMO, AKA PETER ANTHONY SGROMO, Plaintiff-Appellant

v.

LEONARD GREGORY SCOTT, EUREKA INVENTIONS LLC, Defendants-Appellees ______________________

2021-1106 ______________________

Appeal from the United States District Court for the Northern District of California in No. 4:19-cv-08170-HSG, Judge Haywood S. Gilliam Jr. ______________________

Decided: February 8, 2022 ______________________

PETER SGROMO, Thunder Bay, Ontario, Canada, pro se.

THOMAS E. MOORE, III, Haynes and Boone, LLP, Palo Alto, CA, for defendants-appellees. ______________________

PER CURIAM. Case: 21-1106 Document: 44 Page: 2 Filed: 02/08/2022

2 SGROMO v. SCOTT

Pietro Pasquale-Antoni Sgromo initiated an arbitra- tion action against Leonard Gregory Scott asserting own- ership of two patents, among other claims. In a separate interpleader action, the U.S. District Court for the North- ern District of California determined that Mr. Sgromo did not own the patents. The arbitrator subsequently issued an arbitration award in favor of Mr. Scott. Mr. Scott filed a petition to confirm that award in the district court. Mr. Sgromo filed a cross-petition seeking vacatur of the award. The district court granted Mr. Scott’s petition and denied Mr. Sgromo’s cross-petition. Mr. Sgromo now ap- peals to this court. We do not have subject matter jurisdic- tion because this case does not arise under federal patent law. Pursuant to 28 U.S.C. § 1631, we transfer this appeal to the U.S. Court of Appeals for the Ninth Circuit where appellate jurisdiction is proper. BACKGROUND Mr. Sgromo and Mr. Scott lived together in California. They signed a “Living Together Agreement” (LTA), in which they agreed to “binding arbitration in San Fran- cisco” for “any dispute arising from [the LTA] agreement.” S. App’x 0021. 1 Mr. Sgromo initiated an arbitration action in April 2018 pursuant to this agreement, asserting that he owned two patents. App’x 35. 2 Three months later, as part of a separate and previously commenced interpleader ac- tion, the district court determined that Mr. Sgromo did not own the patents. Bestway (USA), Inc. v. Sgromo, No. 17- cv-00205-HSG, 2018 WL 3219403, at *4 (N.D. Cal. July 2, 2018), aff’d sub nom. Bestway (USA), Inc. v. Scott, 788 F. App’x 426 (9th Cir. 2019). The arbitrator subse- quently entered a final arbitration award in favor of

1 “S. App’x” refers to the supplemental appendix filed by Mr. Scott. 2 “App’x” refers to the sequentially paginated appen- dices filed by Mr. Sgromo. Case: 21-1106 Document: 44 Page: 3 Filed: 02/08/2022

SGROMO v. SCOTT 3

Mr. Scott in February 2019. App’x 56–64. Mr. Scott filed a petition to confirm the arbitration award in May 2019 pursuant to California Code of Civil Procedure (“CAA”) and the Federal Arbitration Act (“FAA”). App’x 36–37. After removing the case to federal court under diversity jurisdic- tion, Mr. Sgromo cross-petitioned to vacate the award in January 2020. App’x 37–39; S. App’x 0052–59. The district court applied the FAA, granted Mr. Scott’s petition to confirm the arbitration award, and denied Mr. Sgromo’s cross-petition to vacate as untimely and, in the alternative, as lacking merit. App’x 39–44; see 9 U.S.C. § 9 (mandating confirmation of an arbitration award ab- sent vacatur, modification, or correction of the award); 9 U.S.C. § 12 (providing a three-month filing deadline for petitions to vacate an arbitration award). Mr. Sgromo appealed to this court. He argues that, un- der the terms of the LTA, the district court should have applied the CAA instead of the FAA to determine the time- liness of his cross-petition. In the alternative, he asserts that the arbitration award should be vacated on the merits under the FAA. Because we lack subject matter jurisdic- tion, we transfer this appeal to the Ninth Circuit under 28 U.S.C. § 1631. DISCUSSION Federal courts are courts of limited jurisdiction. Gunn v. Minton, 568 U.S. 251, 256 (2013). This court’s ju- risdiction is defined by Congress in 28 U.S.C. § 1295. As relevant to this case, this court has exclusive jurisdiction over appeals from a district court decision for “any civil ac- tion arising under . . . any Act of Congress relating to pa- tents.” 28 U.S.C. § 1295(a)(1). An action arises under patent law when it presents an issue of federal patent law that is “(1) necessarily raised, (2) actually disputed, (3) substantial, and (4) capable of resolution in federal court without disrupting the federal- Case: 21-1106 Document: 44 Page: 4 Filed: 02/08/2022

4 SGROMO v. SCOTT

state balance approved by Congress.” Gunn, 568 U.S. at 258. This action does not arise under federal patent law. No issue of patent law is “necessarily raised.” Id. at 259. In- deed, the district court’s only basis for subject matter juris- diction was diversity under 28 U.S.C. § 1332(a). See App’x 37–39. And “[o]ur jurisdiction to decide appeals from district courts is non-existent when the jurisdiction of the district was not based at all on either [federal patent law] or [actions where the United States is a defendant].” Beghin-Say Int’l, Inc. v. Ole-Bendt Rasmussen, 733 F.2d 1568, 1572 (Fed. Cir. 1984) (citing 28 U.S.C. §§ 1338(a), 1346). The district court correctly explained that the case “emphatically [was] not an opportunity for the parties to relitigate the interpleader action” nor “an opportunity for Mr. Sgromo to argue that he owns the [patents at issue].” 3 App’x 40. Further, whether Mr. Sgromo timely filed his cross-pe- tition presents no question of federal patent law, whether the CAA or FAA applies. Cal. Civ. Pro. Code § 1288.2 (West 2021) (CAA vacatur petition deadline); 9 U.S.C. § 12 (FAA vacatur petition deadline). The same is true of the vacatur standards. Although the standards for vacatur un- der the CAA and FAA differ slightly, they do not require analysis of patent law; they instead look to the conduct of the arbitrator. Cal. Civ. Pro. Code § 1286.2 (West 2021) (CAA vacatur standard); 9 U.S.C. § 10 (FAA vacatur stand- ard). Mr. Sgromo also seems to contest the outcome of the interpleader action, which determined that he did not own

3 In any event, we are not convinced that Mr. Sgromo’s ownership dispute is actual or substantial. See Gunn, 568 U.S. at 259–62. Case: 21-1106 Document: 44 Page: 5 Filed: 02/08/2022

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the patents. 4 But that is not a finding that Mr. Sgromo appealed in this case. Indeed, Mr. Sgromo appealed that finding to the Ninth Circuit, which affirmed the district court’s determination that Mr. Sgromo did not own the pa- tents. Bestway (USA), Inc. v. Scott, 788 F. App’x 426, 427 (9th Cir. 2019). That final judgement is not subject to re- litigation in this court. See Parklane Hosiery Co. v. Shore, 439 U.S. 322, 326–27 (1979); see also In re Sgromo, 842 F. App’x 646, 647 (Fed. Cir. 2021) (“We do not have au- thority to overturn the Ninth Circuit.”). Because no issue of federal patent law is necessarily raised, we need not ad- dress the other Gunn elements. Although this court lacks subject matter jurisdiction, we “shall, if it is in the interest of justice, transfer” an ap- peal to cure a lack of subject matter jurisdiction. 28 U.S.C. § 1631. Since the district court properly exercised diversity jurisdiction over this action, the Ninth Circuit has appel- late jurisdiction under 28 U.S.C. § 1291. We accordingly order that this appeal be transferred to the Ninth Circuit. CONCLUSION For the foregoing reasons, we transfer this appeal to the Ninth Circuit. An order shall be issued concurrently. TRANSFERRED COSTS No costs.

4 Mr. Sgromo’s cross-request for judicial notice (Dkt. No. 31) is granted to the extent that the U.S. Patent and Trademark Office documents submitted by Mr. Sgromo are accepted for filing. However, we are unconvinced that these documents have any bearing on this appeal.