Fifth Circuit Offers Litigants A Primer About When They Need to Cross-Appeal Versus Urging Affirmance on Alternative Grounds

In Domain Protection LLC v. Sea Wasp LLC, No. 20-40411 (5th Cir. Jan 13, 2022), the panel uses the occasion of “three appeals arising from one lawsuit—one from the plaintiff, one from the defendant, one from [a] sanctioned lawyer— . . . to clarify when arguments should be made in responsive briefing and when they require a cross-appeal.”

The trial below concerned claims under Title II of the Electronic Communications Privacy Act, the Texas Theft Liability Act, and state tort law concerning the alleged misappropriation of a website domain name by defendant Sea Wasp. Plaintiff Domain Protection, seeking restoration of the domain name, obtained preliminary injunctive relief and a summary judgment ruling in its favor on liability. But at trial, the jury awarded no damages. “The district court’s final judgment ordered that Domain Protection take nothing and dismissed the case with prejudice. The court also refused to award either side attorney’s fees.”

On appeal, defendant Sea Wasp attempted to challenge the liability findings. The Fifth Circuit, though, having affirmed the “take nothing” judgment, concluded that “the final judgment was a full victory for Sea Wasp,” and thus “it is not an aggrieved party entitled to bring a cross-appeal.”

“This point bears further explanation because there is a recurring misunderstanding about when filing a cross-appeal is appropriate as opposed to asserting in the appellee’s brief alternative grounds supporting the judgment . . . . This is not just an academic point. Cross-appeals are inefficient. They ‘complicate[] briefing schedules and the number and length of the briefs in ways that may generate more confusion than enlightenment’ . . . . Cross-appeals should thus be confined to their proper place.”

Citing Justice Brandeis’s guidance in United States v. Am. Ry. Express Co., 265 U.S. 425 (1924), the panel notes that “a cross-appeal is necessary when the appellee wants to ‘attack the decree with a view either to enlarging his own rights thereunder or of lessening the rights of his adversary’ . . . . The focus is on whether the party is seeking a change in the decree, or what we today call the judgment. That makes sense because we ‘review judgments, not opinions.’”

“Consider a simple personal injury case in which the jury finds the defendant was negligent but then awards no damages. The resulting take-nothing judgment does not injure the defendant, so it could not file a cross-appeal challenging the subsidiary finding of liability.”

It does not leave the defendant without options to get the liability ruling reviewed, though. “What the defendant in our hypothetical could do is defend the take-nothing judgment on the alternative ground that it was not negligent . . . .  The place for such arguments that support a judgment is in the appellee’s brief. That is . . . where Sea Wasp should have put its challenge to the district court’s liability rulings.”

Moreover, as the panel notes in a footnote, in this case there was a preliminary injunction entered that was subject to an immediate appeal as of right. “Sea Wasp could have appealed the preliminary injunction after it issued but did not. See 28 U.S.C. § 1292(a)(1).”

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