Judges Torruella, Lynch and Howard - United States Court of Appeals for the First Circuit

John Deep — Wed, 12 Mar 2008 11:19:08 -0600

Appellant John A. Deep has appealed from an October 2, 2006 order entered in parallel district court actions. In re Compact Disc Minimum Adver. Price Antitrust Litigation, 456 F.Supp. 2d 131 (D. Me. 2006). (Appeals Nos. 06-2576 and 06-2708). He has also appealed the denial of three postjudgment motions filed pursuant to Fed. R. Civ. P. 60(b). (Appeals Nos. 07-1439; 07-1668; 07-1669). Finally, Deep has appealed an order, dated June 26, 2007, that dismissed a third action and imposed sanctions and an injunction. Deep v. Boies, 493 F. Supp. 2d 88 (D. Me. 2007). (Appeal No. 07-2004). We affirm these district court orders in all respects.

Many of the claims raised in the district court have been abandoned by Deep and, thus, waived, as he has not addressed them in his appellate briefs. As to the remaining claims, we review, de novo, the grant of a motion to dismiss. Rodriguez-Ortiz v. Margo Caribe, Inc., 490 F.3d 92, 95 (1^st Cir. 2007). The district court was clearly correct in determining that Deep’s claims are unrelated to the claims previously settled in In re Compact Disc Minimum Adver. Price Antitrust Litigation, 292 F. Supp. 2d 184 (D. Me. 2003). And, we reject, as unfounded, Deep’s contention that he was unfairly surprised by the court’s ruling on this issue. There was also no error in the district court’s determination that Deep’s claims against the defendant Lawyers do not demonstrate a fraud on the court. Nor are we persuaded by Deep’s argument that his failure on this claim resulted from the defendants’ conduct.

There was neither error of law nor abuse of discretion in denying any of Deep’s three Rule 60(b) motions. See Roger Edwards LLC v. Fiddes & Son Ltd., 427 F.3d 129, 132 (1^st Cir. 2005) (reciting standard of review). We do not consider Deep’s argument that the district court should not have abstained from deciding the state law claims against the defendant Lawyers or the claim against Trans World Entertainment Corporation for allegedly aiding and abetting the Lawyers’ alleged breach of fiduciary duty, as we lack appellate jurisdiction over the district court’s discretionary decision to abstain pursuant to § 1334(c)(1). 28 U.S.C. § 1334(d). See, e.g., In re Cody, Inc. 338 F.3d 89, 97 (2d Cir. 2003). There was no abuse of discretion in the district court’s vacatur of a February 2005 preservation order.

Finally, there was no error in the district court’s determination that it lacked subject matter jurisdiction over the third action filed in March 2007. See Johansen v. United States, 506 F.3d 65, 68 (1^st Cir. 2007) (reciting standard of review). Nor was there an abuse of discretion in the imposition of the sanction and injunction order.

Music Download Lawsuit - John Deep v. RIAA, Boies, et al. - Lynch

Judges Torruella, Lynch and Howard - United States Court of Appeals for the First Circuit