1 16-2566-cv LFoundry Rousset v. Atmel UNITED STATES COURT OF APPEALS FOR THE SECO ND CIRCUIT SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT = S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DA TABASE (WITH THE NOTATION A SUMMARY ORDER @ ). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. At a stated term of the Unite d States Court of Appeals fo r the Second Circuit, held at the Thurgood Marshall United States Courth ouse, 40 Foley Square, in the City of New York, on the 19 th day of May, two thousand seventeen. PRESENT: REENA RAGGI, DENNY CHIN, SUSAN L. CARNEY, Circuit Judges

. LFOUNDRY ROUSSET, SAS, JEAN YVES GUERRINI, individually a nd on behalf of all other persons similarly situated, Plaintiffs-Appellants , v. No. 16-2566-cv ATMEL CORPORATION, AT MEL ROUSSET, SAS, LFOUNDRY GMBH, Defendants-Appellees

. APPEARING FOR APPELLANTS: PHILIP PE JEAN JOSEPH PRADAL (Lauren Anne Marshall, on the brief ), Pradal & Associates PLLC, New York, New York.2 APPEARING FOR APPELLEES: SAMUEL J. RUBIN (Marshall H. Fishman, on the brief ), Goodwin Procter LLP, New York New York, for Atmel Corporation and Atmel Rousset, SAS. GREGORY F. HAUSER, Wuersch & Gering LLP, New York, New York, for LFoundry GmbH. Appeal from a judgment of the United Stat es District Court for the Southern District of New York (Laura Taylor Swain, Judge ). UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the order entered on June 27, 2016, is AFFIRMED. Plaintiffs LFoundry Rousset, SAS, and a putative class of its employees, led by Jean Yves Guerrini, appeal from the denial of their Fed. R. Civ. P. 60(b) and 62.1 motions, which the district court characterized as moot in light of this court’s summary order affirming the conditional di smissal of the complaint on forum non conveniens grounds. Plaintiffs had asserted claims under RICO, as well as for fraud, tortious interference with contracts, and trespass to chattel, and had sought a declaration voiding certain contracts, based on what plaintiffs allege was a scheme by defendants Atmel Corporation, Atmel Rousset, SAS, and LF oundry GmbH fraudulently to convey a semiconductor manufacturing unit in France to a near-insolvent buyer to dispose of it without paying employee assi stance, as mandated by Fren ch labor law and collective bargaining agreements. The district court ruled that France was a more appropriate forum and conditioned its dismissal on the defe ndants’ consent to ju risdiction in France,3 which was the disposition we affi rmed on the first appeal. See Guerrini v. Atmel Corp. , 667 F. App’x 308 (2d Cir. 2016). During the prior appeal, this court granted plaintiffs’ mo tion for leave to file an amended motion for judicial notice of Fr ench court documents allegedly evincing LFoundry GmbH’s noncomplia nce with the district court’s condition for dismissal insofar as that defendant oppo sed jurisdiction through a moti on it filed in French courts, but it does not appear that we formally rule d on the amended motion itself. Nonetheless, this evidence was thoroughly discussed in plaintiffs’ reply brief and during oral argument. Indeed, it was in re sponse to concerns voiced by the panel at argument that LFoundry GmbH submitted a lett er explaining that it consente d to jurisdiction in France but would not withdraw its ch allenge to the French courts ’ jurisdiction until the United States proceedings were final. Plaintiffs responded with their own letter rejecting defendant’s assurances and requesting that the court “find that Defendant-Appellee LFoundry has not consented to the jurisdiction of French courts.” J.A. 269–70. Plaintiffs now contend that this court’s summary order, which discussed the merits of the district court’s conditional forum non conveniens dismissal and, in so doing, concluded that defendants had consented to jurisdiction, did not reach the late-adducedevidence and arguments, and therefore the district court erred in deeming their postjudgment motions moot. We review the denial of motions under Fed. R. Civ. P. 60(b) for abuse of discretion, see Gomez v. City of New York , 805 F.3d 419, 423 ( 2d Cir. 2015), which we identify when “(1) [the court’s] decision rest s on an error of law (such as application of4 the wrong legal principle) or clearly errone ous factual finding, or (2) [the court’s] decision—though not necessarily the product of a legal error or a clearly erroneous factual finding—cannot be located within the range of permissible decisions,” McDaniel v. Cty. of Schenectady , 595 F.3d 411, 416 (2d Cir. 2 010) (internal quotation marks omitted). We apply the same standards to the denial of indicative relief pursuant to Fed. R. Civ. P. 62.1. 1 See Jackson v. Allstate Ins. Co. , 785 F.3d 1193, 1206 (8th Cir. 2015) (“We review a denial of indicativ e relief for abuse of discretion.”); Dice Corp. v. Bold Techs. , 556 F. App’x 378, 384 (6th Cir. 2014) (stating that reviewing court “treat[s] a denial of indicative relief as we would a Rule 60(b) motion”); Ray v. Pinnacle Health Hosps., Inc. , 416 F. App’x 157, 161 n. 3 (3d Cir. 2010) (same). In conducting our review, we assume the parties’ familia rity with the facts and proce dural history of this case, which we reference only as necessary to explain our decision to affirm. 1. Fed. R. Civ. P. 62.1 A motion brought pursuant to Fed. R. Civ. P. 62.1 is a procedural device that allows a district court to inform the parties and this court how it would rule on the merits of certain motions after an appeal has been f iled and the district court has been divested of jurisdiction. When presen ted with a Rule 62.1 motion, a district court “may” (1) defer consideration, (2) deny the motion, (3) indicat e that it would grant the motion if the court of appeals remanded for that purpose, or (4) stat e that it “raises a substantial issue.” Fed. R. Civ. P. 62.1(a).

1 As defendants correctly argue, we do no t review the denial of these motions de novo

. Unlike the cases cited by plaintiffs in suppor t of that contention, the disposition of these motions was not a merits adjudication on mootness grounds.5 We detect no abuse of discretion in the district court’s decision to defer consideration and u ltimately deny the motion as moot. See Steven S. Gensler, 2 Federal Rules of Civil Procedure, Rules and Commentary, Rule 62.1 Indica tive Ruling on a Motion for Relief that is Barred by a Pending Appeal (Feb. 2017) (observing that Rule 62.1 “does not supply a free-standing basis for parties to solicit the district court’s views on matters currently on appeal”). This court declined to rema nd to allow the district court to consider the Fed. R. Civ. P. 60(b) mo tion while the appeal wa s pending. Thus, our return of the mandate to the district court re ndered the Rule 62.1 motion moot because it was no longer necessary for the district cour t’s jurisdiction to cons ider the concomitant Fed. R. Civ. P. 60(b) motion. Accordingly, we affirm the district court’s disposition in this regard. 2. The Mandate Rule This court’s longstanding precedent establishe s that “a district court does not have jurisdiction to alter an appellate ruling wher e the appellate court has already considered and rejected the basis for the movant’s Rule 60(b) motion.” DeWeerth v. Baldinger , 38 F.3d 1266, 1270 (2d Cir. 1994); accord Burrell v. United States , 467 F.3d 160, 165 (2d Cir. 2006) (observing that if “a n appellate court has once decide d an issue, the trial court, at a later stage in th e litigation, is under a duty to fo llow the appellate court’s ruling on that issue” (internal quotation marks omitted)). Whether we have already considered and rejected the basis for a given motion is depe ndent on the contours of the mandate, which “impliedly decides at least enough issues to allow it to be eff ective, even if not all issues are made explicit.” In re Coudert Bros. LLP , 809 F.3d 94, 101–02 (2d Cir. 2015); see6 United States v. Ben Zvi , 242 F.3d 89, 95 (2d Cir. 2001) (“The mandate rule compels compliance on remand with the dictates of th e superior court and forecloses relitigation of issues expressly or impliedly decided by the appellate court. ” (emphasis in original) (internal quotation marks omitted)). “To dete rmine whether an issu e remains open for reconsideration on remand, the tr ial court should look to both the specific dictates of the remand order as well as the br oader spirit of the mandate.” United States v. Ben Zvi , 242 F.3d at 95 (internal quotation marks omitted). Plaintiffs argue that this court’s earlie r decision in this case did not render the issues presented in the Rule 60(b) motion moot because th at decision did not explicitly address the merits of the arguments and evid ence presented by the Rule 60(b) motion. Defendants argue to the contrary, and, ther efore, submit that the district court’s consideration of the Rule 60(b) mo tion was barred by the mandate rule. The district court did not err in concludi ng that it was foreclosed from considering the Rule 60(b) motion because , although there was no remand order here, this court’s mandate clearly encompassed the arguments ma de in the Rule 60(b) motion before the district court. 2 The court heard extensive argumen t about the ongoing proceedings in France, took judicial notice of the records of those proceedings, an d ultimately concluded that “the defendants expressly consen ted to jurisdiction” in France. Guerrini v. Atmel Corp. , 667 F. App’x at 310. If the court ha d viewed the evidence before it as

2 Indeed, plaintiffs’ Fed. R. Ci v. P. 60(b) motion explicitly c oncedes that th e evidence it presents is the same as that presented by the motion for judici al notice to this court.7 undercutting defendants’ professed consent to jurisdiction in France, it woul d not have so ruled. Even if this court’s consent conclusion di d not, by itself, capture the entirety of plaintiffs’ arguments, the relevant summary orde r did so in stating that the court “f[ound] no merit in the plaintiffs’ other arguments.” Id . Because the issue of defendants’ conduct in the French courts was raised and fully argu ed, such language—even without overt reference to a particular argument or explanation of the reasons it lacked merit— signifies an adjudication on the merits. See Francolino v. Kuhlman , 365 F.3d 137, 141 (2d Cir. 2004) (observing “that a claim was ad judicated on the merits where it was one of the remaining contentions that the [reviewing co urt] stated were without merit” (internal quotation marks omitted)). Moreover, even if we could now reconsider this issue, it would fail on the merits. As one member of the original appeals pane l observed, merely because LFoundry GmbH was “prepared to be in France; [but] not prepar ed to be in France and the United States at the same time,” Appellee LFoundry GmbH’s B r. 12 (quoting Tr. of June 20, 2016 Oral Arg. at 24:18–20), does not mean that it vi olated the condition of the district court’s forum non conveniens dismissal. Indeed, if LFou ndry GmbH is faithful to its representations to this court and the dist rict court and withdr aws any opposition to jurisdiction when these proceedi ngs are final, there would be no violation justifying the reinstatement of the case. If it fails to do so , plaintiffs may then file another Rule 60(b) motion for the district court to co nsider in the first instance. See Standard Oil Co. of Cal. v. United States , 429 U.S. 17, 18 (1976) (“Like the or iginal district court judgment, the8 appellate mandate relates to the record and issues then before the court, and does not purport to deal with possible later events.”). On the presen t record, however, which, to be clear, includes the French court documents, the distri ct court did not abuse its discretion in denying plaintiffs’ motion as moot based on the mandate rule. 3. Conclusion We have considered plaintiffs’ remaini ng arguments and conclude that they are without merit. For the reasons stated, the district court’s June 27, 2016 order is AFFIRMED. FOR THE COURT: CATHERINE O’HAGAN WOLF E, Clerk of Court