FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

HAVENSIGHT CAPITAL LLC,

Plaintiff-Appellant,

v.

NIKE, INC.,

Defendant-Appellee.

No. 15-56607

D.C. No.

2:14-cv-08985-R-FFM

OPINION

Appeal from the United States District Court

for the Central District of California

Manuel L. Real, District Judge, Presiding

Submitted August 18, 2017*

San Francisco, California

Filed June 7, 2018

Before: Johnnie B. Rawlinson and Jacqueline H. Nguyen,

Circuit Judges, and Sarah S. Vance,** District Judge.

Opinion by Judge Rawlinson

*

 The panel unanimously concludes this case is suitable for decision

without oral argument. See Fed. R. App. P. 34(a)(2).

** The Honorable Sarah S. Vance, United States District Judge for the

Eastern District of Louisiana, sitting by designation.
2 HAVENSIGHT CAPITAL V. NIKE

SUMMARY***

Timely Appeal / Fed. R. Civ. P. 11 Sanctions

The panel dismissed for lack of jurisdiction plaintiff’s

appeal of the sanctions imposed under 28 U.S.C. § 1927, the

vexatious litigant order, the denial of plaintiff’s motion to

strike, the denial of plaintiff’s application for default, and

the dismissal of the amended complaint; and affirmed the

district court’s order imposing fees as sanctions under

Fed. R. Civ. P. 11.

The panel dismissed plaintiffs’ appeal as to the

sanctions imposed under § 1927, the vexatious litigant

order, the denial of plaintiff’s motion to strike and the

denial of plaintiff’s application for default because those

matters were not included in the notice of appeal. See

Fed. R. App. P. 3(c)(1)(B).

The district court did not enter a separate judgment after

it dismissed plaintiff’s amended complaint on February 18,

2015, and judgment was deemed entered on July 15, 2015,

pursuant to Fed. R. Civ. P. 58 and Fed. R. App. P.

4(a)(7)(A)(ii). Plaintiff filed the notice of appeal on

October 15, 2015. One day after the district court dismissed

the amended complaint, plaintiff filed a motion for

reconsideration.

The panel dismissed the amended complaint because the

notice of appeal was untimely. The panel concluded that

*** This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
HAVENSIGHT CAPITAL V. NIKE 3

plaintiff’s premature filing of a post-judgment motion did not

extend the otherwise applicable appeal period.

The panel deferred to the district court’s factual findings

as to whether plaintiff’s filings were sufficiently frivolous or

abusive such that Rule 11 sanctions were appropriate, and

affirmed the sanctions order because the findings were amply

supported by the record.

COUNSEL

BenjaminWoodhouse, Pismo Beach, California, for PlaintiffAppellant.

Sean S. Twomey, Gibson Dunn & Crutcher LLP, Irvine,

California; Austin Schwing, Gibson Dunn & Crutcher LLP,

San Francisco, California; for Defendant-Appellee.

OPINION

RAWLINSON, Circuit Judge:

This appeal is the latest in an ongoing and bizarre dispute

between Havensight Capital LLC (Havensight) and Nike, Inc.

(Nike). Throughout these proceedings, Havensight has

portrayed its action as a battle between David and Goliath. In

reality, however, it is more akin to Don Quixote’s tilting at

windmills.

The action from which this appeal was brought concerns

allegedly wrongful conduct by Nike against Havensight (the

tortious interference action). The tortious interference action
4 HAVENSIGHT CAPITAL V. NIKE

was filed after Havensight’s prior action against Nike,

alleging infringement upon a soccer brand owned by

Havensight (the infringement action), was dismissed with

prejudice.

I. BACKGROUND

Although the prior action is not before us on appeal, the

two cases are somewhat intertwined. Havensight’s

infringement action was dismissed with prejudice on

November 19, 2014. The following day, Havensight filed the

tortious interference action, and six days later filed its

Amended Complaint.1 Attached to the Amended Complaint

was an affidavit purportedly reflecting an interview of a

sporting goods retailer who reported that Nike used its market

strength to force retailers to purchase its goods, thereby

excluding competitors like Havensight. After the tortious

interference action was reassigned to the same judge who

presided over the infringement action, Nike filed a motion to

dismiss under Federal Rule of Civil Procedure (FRCP)

12(b)(6).2

1 Havensight alleged six causes of action: (1) intentional interference

with contractual relations; (2) intentional interference with prospective

economic relations; (3) negligence; (4) vertical and horizontal price fixing;

(5) civil RICO (Racketeer Influenced and Corrupt Organizations) under

California law; and (6) unfair competition and trade practices.

2 Rule 12(b)(6) provides: “Every defense to a claim for relief in any

pleading must be asserted in the responsive pleading if one is required.

But a party may assert the following defenses by motion: . . . failure to

state a claim upon which relief can be granted. . .” Fed. R. Civ. P.

12(b)(6).
HAVENSIGHT CAPITAL V. NIKE 5

At this juncture, Havensight departed sharply from

ordinary procedure, filing multiple motions for default on the

basis that Nike’s motion to dismiss was untimely. Before the

district court could rule on the motions, Havensight filed a

writ of execution with the Clerk of the Court, claiming a

default judgment in excess of $600 million. Of course,

because Nike had timely filed its motion in lieu of an answer,

no default judgment was warranted, and the district court

ordered the writ of execution stricken.

Nike subsequently filed a Motion for Relief

Regarding [Havensight’s counsel’s] Ethical Violations. 

Undeterred, Havensight moved to recuse the assigned

judge from the tortious interference action and from

the (dismissed) infringement action. The judge assigned

to Havensight’s recusal motions denied both. 

Nike subsequently sought sanctions under Rule 11 of the

Federal Rules of Civil Procedure (Rule 11)

3

3

 Rule 11 provides in pertinent part:

. . .

(b) Representations to the Court. By presenting to the

court a pleading, written motion, or other

paper–whether by signing, filing, submitting, or later

advocating it–an attorney or unrepresented party

certifies that to the best of the person’s knowledge,

information, and belief, formed after an inquiry

reasonable under the circumstances:

(1) it is not being presented for any improper

purpose, such as to harass, cause unnecessary

delay, or needlessly increase the cost of litigation;
6 HAVENSIGHT CAPITAL V. NIKE

due to Havensight’s false and frivolous filings.

On February 18, 2015, the district court granted Nike’s

motion to dismiss the Amended Complaint without leave to

amend, and imposed sanctions under Rule 11 against

Havensight’s counsel in the form of attorneys’ fees and

expenses. No separate judgment was entered for this order. 

The following day, Havensight filed a motion to vacate the

(2) the claims, defenses, and other legal

contentions are warranted by existing law or by a

nonfrivolous argument for extending, modifying,

or reversing existing law or for establishing new

law;

(3) the factual contentions have evidentiary support

or, if specifically so identified, will likely have

evidentiary support after a reasonable opportunity

for further investigation or discovery; and

(4) the denials of factual contentions are warranted

on the evidence or, ifspecifically so identified, are

reasonably based on belief or a lack of

information.

(c) Sanctions.

(1) In General. If, after notice and a reasonable

opportunity to respond, the court determines that

Rule 11(b) has been violated, the court may

impose an appropriate sanction on any attorney,

law firm, or party that violated the rule or is

responsible for the violation. Absent exceptional

circumstances, a law firm must be held jointly

responsible for a violation committed by its

partner, associate, or employee.

Fed. R. Civ. P. 11.
HAVENSIGHT CAPITAL V. NIKE 7

dismissal and the Rule 11 sanctions (motion for

reconsideration). Included in Havensight’s motion was yet

another motion to recuse the judge who decided the earlier

recusal motions. Although the judge had previously

requested that Havensight refrain from filing further recusal

motions, Havensight decided to Just Do It. Understandably,

the court did not look favorably upon Havensight’s audacity,

and denied the motion on April 22, 2015, while issuing an

order to show cause why additional sanctions should not be

imposed under Rule 11 and 28 U.S.C. § 1927.4 These

sanctions were imposed on March 31, 2015.

The district court entered a separate order declaring

Havensight to be a vexatious litigant, and Nike moved for

attorneys’ fees and costs pursuant to the Rule 11 sanctions

imposed in the February 18 order. The district court granted

Nike’s motion in full in an order entered on September 22,

2015.

Havensight filed its Notice of Appeal on October 15,

2015. In its notice, Havensight referenced only the dismissal

of the Amended Complaint and the granting of the Rule 11

sanctions. Havensight now seeks to expand the scope of

rulings of its appeal to include the additional sanctions

imposed under 28 U.S.C. § 1927, the vexatious litigant order,

the denial of Havensight’s motion to strike “Nike’s alleged

illegal deposition and felonious entry of a confidential

4

28 U.S.C. § 1927 provides: “Any attorney or other person admitted

to conduct cases in any court of the United States or any Territory thereof

who so multiplies the proceedings in any case unreasonably and

vexatiously may be required by the court to satisfy personally the excess

costs, expenses, and attorneys’ fees reasonably incurred because of such

conduct.” 28 U.S.C. § 1927.
8 HAVENSIGHT CAPITAL V. NIKE

customer communication into the public record,” and denial

of Havensight’s Application for Default.

II. DISCUSSION

A. Standards of Review

We review de novo a district court’s dismissal of a

complaint under Federal Rule of Civil Procedure 12(b)(6). 

See Friedman v. AARP, Inc., 855 F.3d 1047, 1051 (9th Cir.

2017). A district court’s denial of a motion for leave to

amend, denial of a motion for reconsideration, imposition of

sanctions under Rule 11 and 28 U.S.C. § 1927, and

characterization of a party as a vexatious litigant are all

reviewed for abuse of discretion. See Kerr v. Jewell,

836 F.3d 1048, 1053 (9th Cir. 2016) (denial of motion for

reconsideration); De Dios v. Int’l Realty & Investments,

641 F.3d 1071, 1076 (9th Cir. 2011) (imposition of

sanctions); Ringgold-Lockhart v. County of Los Angeles,

761 F.3d 1057, 1062 (9th Cir. 2014) (characterization of party

as a vexatious litigant).

B. Jurisdiction

“We have jurisdiction to determine our own jurisdiction.” 

Agonafer v. Sessions, 859 F.3d 1198, 1202 (9th Cir. 2017)

(citation omitted). However, we lack jurisdiction to decide an

appeal if the notice of appeal is not timely filed under Rule 4

of the Federal Rules of Appellate Procedure (Rule 4) and the

appellee raises the untimeliness as a basis for dismissal. See

Hamer v. Neighborhood Hous. Serv. Of Chicago, 138 S.Ct.

13, 16–17 (2017); see also Classic Concepts, Inc. v. Linen

Source, Inc., 716 F.3d 1282, 1284 (9th Cir. 2013). We

similarly lack jurisdiction over matters not included in the
HAVENSIGHT CAPITAL V. NIKE 9

Notice of Appeal. See Smith v. Barry, 502 U.S. 244, 248

(1992).

Rule 4 requires the notice of appeal to be filed “within

thirty days after the entry” of the judgment or order being

appealed. Orr v. Plumb, 884 F.3d 923, 927 (9th Cir. 2018). 

If the district court did not enter a separate judgment,

judgment is deemed entered 150 days after “entry of the 

judgment or order in the civil docket.” FRAP 4(a)(7)(A)(ii).

1. Matters Not Included in the Notice of Appeal

Rule 3 of the Federal Rule of Appellate Procedure

provides that “[t]he notice of appeal must . . . designate the

judgment, order, or part thereof being appealed.” 

FRAP 3(c)(1)(B). “When a party seeks to argue the merits of

an order that does not appear on the face of the notice of

appeal, we consider: (1) whether the intent to appeal a

specific judgment can be fairly inferred and (2) whether the

appellee was prejudiced by the mistake.” West v. United

States, 853 F.3d 520, 523 (9th Cir. 2017) (citation and

internal quotation marks omitted).

Havensight’s notice of appeal named “the order, and

sanctions imposed against the Plaintiff by the Court,”

referenced “document[s] 123 [order granting Rule 11

sanctions] and 124 [order granting defendant’s motion to

dismiss the Amended Complaint],” and attached the orders as

exhibits. No intent to appeal any other rulings can reasonably

be inferred from Havensight’s notice of appeal. See id. 

Accordingly, Havensight’s appeal is dismissed as to the

sanctions imposed under § 1927, the vexatious litigant order,

the denial of Havensight’s motion to strike and the denial of
10 HAVENSIGHT CAPITAL V. NIKE

Havensight’s Application for Default. See Valadez-Lopez v.

Chertoff, 656 F.3d 851, 859 n.2 (9th Cir. 2011).

2. Dismissal of the Amended Complaint

The district court did not enter a separate judgment after

it dismissed Havensight’s Amended Complaint on

February 18, 2015. Judgment was therefore deemed entered

on July 18, 2015, pursuant to Rule 58 of the Federal Rules of

Civil Procedure (Rule 58).5 Ordinarily, this analysis would

resolve the matter—if Havensight filed its notice of appeal

after July 18, we would lack jurisdiction to hear the appeal. 

5Rule 58 ofthe Federal Rules ofCivil Procedure provides in pertinent

part:

(a) Separate Document. Every judgment and amended

judgment must be set out in a separate document . . .

. . .

(c) Time of Entry. For purposes of these rules,

judgment is entered at the following times:

(1) if a separate document is not required, when the

judgment is entered in the civil docket under Rule

79(a); or

(2) if a separate document is required, when the

judgment is entered in the civil docket under Rule

79(a) and the earlier of these events occurs:

(A) it is set out in a separate document; or

(B) 150 days have run from the entry in the

civil docket.

Fed. R. Civ. P. 58(a), (c).
HAVENSIGHT CAPITAL V. NIKE 11

See Classic Concepts, 716 F.3d at 1284. Indeed, Havensight

filed its notice of appeal on October 15, well after judgment

was deemed entered.

This case, however, presents an unusual wrinkle. One

dayafter the district court dismissed the Amended Complaint,

Havensight filed a motion for reconsideration. When a party

files a motion for reconsideration, the time period to appeal

is tolled pending resolution of that motion. See United States

ex rel. Hoggett v. Univ. of Phoenix, 863 F.3d 1105, 1107–08

(9th Cir. 2017) (“[I]f a party files one of the motions listed in

[Rule] 4(a)(4)(A), the time to file a notice of appeal is tolled

during the motion’s pendency. . . .”). Included within this

category of motions is a motion to alter or amend the

judgment. Id. at 1107; see also FRAP 4(a)(4)(A)(iv). The

title of the pleading does not control this determination. 

Rather, we “look to the substance” of the pleading “to

determine whether it is in substance a motion to alter or

amend the judgment.” Hoggett, 863 F.3d at 1108. If the

motion “involves reconsideration of matters properly

encompassed in a decision on the merits,” it is properly

characterized as a motion to alter or amend the judgment

under Rule 4(a). Id. (citations and internal quotation marks

omitted).

Although Havensight styled its pleading as a motion to

vacate the judgment and re-open the case, the motion actually

sought reconsideration of the district court’s decision on the

merits as contemplated in Rule 4(a). See id. However, the

difficulty in applying Rule 4(a) in this case stems from the

fact that the motion that would ordinarily toll the time for

filing the notice of appeal was resolved prior to entry of the

underlying judgment. The proceedings evolved along the

following timeline:
12 HAVENSIGHT CAPITAL V. NIKE

• Dismissal of Amended Complaint – February 18, 2015

• Filing of Motion for Reconsideration – February19, 2015

• Denial of Motion for Reconsideration – April 22, 2015

• Judgment deemed entered pursuant to Rule 4(a)(7)(A)(ii)

– July 18, 2015

We have not previously addressed this precise scenario. 

More typically, we are called upon to address the timeliness

of an appeal when a pending motion for reconsideration is

being relied upon to extend the appeal period. See, e.g., Lolli

v. County of Orange, 351 F.3d 410, 414 (9th Cir. 2003). In

this case, however, there was no motion for reconsideration

pending when the judgment was deemed entered pursuant to

Rule 4(a)(7)(A)(ii). But, if Rule 4 is interpreted as tolling the

appeal period for the sixty-two days during which the motion

for reconsideration was pending, the appeal period would

expire on October 18, 2015, after adding the thirty days

provided for in Rule 4(a)(1)(A) (providing that the notice of

appeal must be filed “within 30 days after entry of the

judgment or order appealed from”), rendering Havensight’s

October 15 notice of appeal timely. See Menken v. Emm,

503 F.3d 1050, 1056 (9th Cir. 2007) (noting that the appellant

had “180 days (150 days plus 30 days) from entry of the

order” within which to appeal when appealing “a judgment

entered by operation of [Rule] 4(a)(7)”).

Although not directly on point, our decision in ABF

Capital Corp. v. Osley, 414 F.3d 1061 (9th Cir. 2005), is

instructive on the interplay between Rule 58 and Rule 4. In

ABF Capital, orders of dismissal were entered on April 10,

2003, and April 11, 2003, respectively. See id. at 1064. 
HAVENSIGHT CAPITAL V. NIKE 13

When ABF Capital (ABF) moved to alter or amend the

judgments, the district court construed the motions as ones to

reconsider because no judgments had yet been entered. See

id. The district court denied the motions in minute orders

entered on May 15, 2003, and on July 30, 2003, ABF filed

notices of appeal for both cases. See id.

Because the court never set forth judgments in a separate

document as provided in Rule 58, ABF had 180 days to

appeal. See id. Although ABF filed its notices of appeal

within that 180-day period, the Appellees urged the court to

declare ABF’s appeal untimely due to ABF’s premature filing

of a motion to alter or amend the judgments. Appellees

contended that “the 180-day timetable was shortened” by the

filing of the premature motion. See id. In rejecting this

argument, we noted that the separate document requirement

serves to inform the parties with precision “when judgment

has been entered and when they must begin preparing postverdict motions or an appeal.” Id. (citation omitted). We

noted that accelerating the appeal period due to the filing of

a premature motion to alter or amend the judgments would

not be consistent with the considered interplay between

Rule 58 and Rule 4, and would lessen the degree of certainty

that was the goal of the Advisory Committee when amending

the rules. See id. at 1064–65.

Because the district court decided Havensight’smotion on

April 22, 2015, we are presented with a question not often

encountered: when an appellant files a post-judgment motion

that is resolved before entry of the underlying judgment, is

the time period to file a notice of appeal extended? In ABF,

we held that a “premature post-judgment motion may not

accelerate the deadline for appeal before a separate judgment

has been entered.” Id. at 1065. We see no principled basis
14 HAVENSIGHT CAPITAL V. NIKE

for reaching a different outcome in the converse scenario: 

when an Appellant seeks to lengthen the period for appeal

due to the filing of a premature post-judgment motion.

Although a litigant is not to be penalized for prematurely

filing a post-judgment motion, neither should it gain a tactical

advantage by doing so. Nor does anything in the text of

Rule 4 suggest otherwise. Accordingly, we apply the same

rationale we articulated in ABF to conclude that Havensight’s

premature filing of the post-judgment motion did not extend

the otherwise applicable appeal period.

The district court’s judgment was deemed entered on

July 18, 150 days after its February 18 order dismissing the

Amended Complaint. Although Havensight filed a motion

for reconsideration on February 19, the motion was resolved

on April 22, well before judgment was deemed entered. 

Thus, Havensight had thirty days from the entry of judgment,

or until August 17, to file its notice of appeal. See

FRAP 4(a)(1)(A). Nevertheless, Havensight failed to file its

notice of appeal until October 15, nearly two months later. 

Havensight’s appeal is therefore untimely, and we dismiss for

lack of jurisdiction its appeal challenging dismissal of the

Amended Complaint. See Classic Concepts, 716 F.3d at

1284; see also Hamer, 138 S.Ct. at 16–17.

C. Imposition of Rule 11 Sanctions

The district court issued its order granting Nike attorneys’

fees as a sanction under Rule 11 on September 22, 2015. 

This is the only issue for which Havensight’s October 15

appeal was timely.
HAVENSIGHT CAPITAL V. NIKE 15

“District courts can use Rule 11 to impose sanctions on

any party that files a motion for an improper purpose or who

does so without a legal or factual basis.” Center for Auto

Safety v. Chrysler Grp., LLC, 809 F.3d 1092, 1102 (9th Cir.

2016) (citation and internal quotation marks omitted).

We defer to the trial court’s factual findings as to whether

a litigant’s filings are sufficiently frivolous or abusive such

that Rule 11 sanctions would appropriately deter future

malfeasance. See Primus Auto. Fin. Servs., Inc. v. Batarse,

115 F.3d 644, 649 (9th Cir. 1997) (noting that “[t]he district

court has broad fact-finding powers with respect to sanctions,

and its findings warrant great deference”) (citation and

internal quotation marks omitted). Here, use of Rule 11

sanctions was properly within the district court’s discretion. 

See Blixseth v. Yellowstone Mountain Club, LLC, 854 F.3d

626, 630, n.4 (9th Cir. 2017) (noting that a court may award

attorneys’ fees and costs “associated with sanctions

proceedings” under Rule 11). As discussed, Havensight filed

numerous and voluminous motions despite specific warnings

to desist filing these needless pleadings. The district court’s

findings were amply supported by the record, and its

sanctions order is affirmed. See id.

III. CONCLUSION

Havensight’s appeal of the sanctions imposed under

28 U.S.C. § 1297, the vexatious litigant order, the denial of

Havensight’s motion to strike, the denial of Havensight’s

Application for Default, and the dismissal of the Amended

Complaint, is DISMISSED for lack of jurisdiction. The order

imposing fees as sanctions under Rule 11 is AFFIRMED.

DISMISSED in part and AFFIRMED in part.