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Aviva Sports, Inc. v. Fingerhut Direct Marketing, Inc.

United States District Court, Eighth Circuit

October 16, 2013

Aviva Sports, Inc., Plaintiff,
v.
Fingerhut Direct Marketing, Inc., Menard, Inc., Kmart Corporation, Wal-Mart Stores, Inc., and Manley Toys, Ltd., Defendants.

ORDER

JOAN N. ERICKSEN, District Judge.

On August 21, 2013, the Clerk of Court entered judgment. Two weeks later, Manley Toys, Ltd. (Manley), filed a notice of appeal. On September 18, 2013, Manley moved to extend the time to file a notice of appeal. The next day, Manley, Fingerhut Direct Marketing, Inc. (Fingerhut), Menard, Inc., and Kmart Corporation moved to amend the judgment. For the reasons set forth below, the Court denies the motions.

Motion to Amend Final Judgment

Citing Rules 52(b) and 59(e) of the Federal Rules of Civil Procedure, Manley, Fingerhut, Menard, and Kmart moved to amend the judgment. Rule 52(b) states: "On a party's motion filed no later than 28 days after the entry of judgment, the court may amend its findings-or make additional findings-and may amend the judgment accordingly. The motion may accompany a motion for a new trial under Rule 59." Rule 59(e) states that "[a] motion to alter or amend a judgment must be filed no later than 28 days after the entry of judgment." "Rule 59(e) motions serve the limited function of correcting manifest errors of law or fact or to present newly discovered evidence. Such motions cannot be used to introduce new evidence, tender new legal theories, or raise arguments which could have been offered or raised prior to entry of judgment." Holder v. United States, 721 F.3d 979, 986 (8th Cir. 2013) (citations omitted) (internal quotation marks omitted).

Manley, Fingerhut, Menard, and Kmart asked that the judgment be amended to incorporate each dispositive interlocutory order. The Court denies their request. See Crown Packaging Tech., Inc. v. Rexam Beverage Can Co., 559 F.3d 1308, 1311 (Fed. Cir. 2009); Berdella v. Delo, 972 F.2d 204, 208 & n.6 (8th Cir. 1992).

Next, Manley, Fingerhut, Menard, and Kmart asked that the award of attorney fees and costs in paragraph 2 of the judgment be excised from the judgment. For the reasons set forth in the Order dated August 6, 2013, the award of attorney fees and costs to Plaintiff as set forth in paragraph 2 of the judgment is appropriate. The Court denies the request to excise paragraph 2 from the judgment.

Finally, Manley asked that the judgment be amended to include factual findings regarding Plaintiff's standing. The Court denies Manley's request.[1]

Motion to Extend Time to File Notice of Appeal

In its Motion to Extend Time to File Notice of Appeal, Manley asked the Court to "confirm that the September 4, 2013 Notice of Appeal filed in this action is effective as to all issues incorporated into the Court's Final Judgment, including the sanctions issue decided in the Court's July 23, 2013 [O]rder." The Court denies Manley's request. See Tenkku v. Normandy Bank, 218 F.3d 926, 927 (8th Cir. 2000) (stating that Cunningham v. Hamilton Cnty., 527 U.S. 198 (1999), "held that a sanctions order against a party or her attorney is not an appealable final order").

Conclusion

Based on the files, records, and proceedings herein, and for the reasons stated above, IT IS ORDERED THAT:

1. Manley's Motion to Extend Time to File Notice of Appeal [Docket No. 836] is DENIED.
2. Manley, Fingerhut, Menard, and Kmart's Motion to Amend Final Judgment [Docket No. 837] is DENIED.

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