1 

RECOMMENDED FOR FULL-TEXT PUBLICATION 

Pursuant to Sixth Circuit I.O.P. 32.1(b) 

File Name: 15a0060p.06 

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT 

_________________ 

SLEP-TONE ENTERTAINMENT CORPORATION, 

Plaintiff-Appellant, 

v. 

KARAOKE KANDY STORE, INC.; CHARLES M.

POLIDORI, 

Defendants-Appellees.

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No. 13-4105 

Appeal from the United States District Court 

for the Northern District of Ohio at Cleveland 

No. 1:10-cv-00990—Donald C. Nugent, District Judge. 

Argued: January 23, 2015 

Decided and Filed: April 6, 2015 

Before: MERRITT, MOORE, and DONALD, Circuit Judges. 

_________________ 

COUNSEL 

ARGUED: James M. Harrington, HARRINGTON LAW, P.C., Pineville, North Carolina, for 

Appellant. John J. Okuley, OKULEY SMITH LLC, Columbus, Ohio, for Appellees. ON 

BRIEF: James M. Harrington, HARRINGTON LAW, P.C., Pineville, North Carolina, for 

Appellant. John J. Okuley, OKULEY SMITH LLC, Columbus, Ohio, for Appellees. 

_________________ 

OPINION

_________________ 

KAREN NELSON MOORE, Circuit Judge. Plaintiff Slep-Tone Entertainment Corp. 

brought this action for trademark infringement, unfair competition, and deceptive practices 

against Defendants Karaoke Kandy Store, Inc., and Charles M. Polidori alleging that the 

Defendants unlawfully sold computer hard drives containing karaoke tracks bearing Slep-Tone’s 

>
No. 13-4105 Slep-Tone Entm’t Corp. v. Karaoke Kandy Store, Inc. et al. Page 2

trademarks without authorization. The parties tried the case to a jury, which answered a single 

interrogatory and found that Defendants had not infringed Slep-Tone’s trademarks. Based on the 

jury’s answer to the interrogatory, the district court entered judgment for Defendants. Slep-Tone 

then filed a timely request for findings of fact and conclusions of law pursuant to Federal Rule of 

Civil Procedure 52, but before the district court could resolve the motion, Slep-Tone filed a 

notice of appeal of the district court’s judgment. Slep-Tone’s motion remains pending before the 

district court. Because we do not have jurisdiction over this appeal while the post-judgment 

motion remains pending, we STAY the appeal and REMAND the case to the district court to 

resolve Slep-Tone’s pending motion in accordance with this opinion. 

I. BACKGROUND

In 2010, Slep-Tone brought this action alleging that Karaoke Kandy Store, Inc., and 

Polidori violated federal and state law by copying Slep-Tone karaoke tracks containing SlepTone’s registered marks onto computer hard drives and then selling those tracks without 

authorization. R. 1 (Complaint at 4‒5) (Page ID #4‒5). The complaint sought an award of 

compensatory damages, statutory damages, treble and/or punitive damages, and injunctive relief, 

along with its costs and attorney fees for bringing this action. Id. at 10‒11 (Page ID #10‒11). 

Slep-Tone demanded a jury trial. 

In September 2011, the district court set the case for a jury trial. R. 60 (9/22/11 Pretrial 

Order) (Page ID #1927). Days before the trial date, the court granted the Defendants’ motion for 

summary judgment, finding Slep-Tone had offered insufficient evidence that the Defendants 

improperly used Slep-Tone’s trademarks without authorization. R. 76 (D. Ct. Op.) (Page ID 

#2087). We reversed that judgment on appeal because Slep-Tone’s evidence of unauthorized use 

was sufficient to survive summary judgment, and we remanded to the district court. See SlepTone Entm’t Corp. v. Karaoke Kandy Store, Inc., 517 F. App’x 339 (6th Cir. 2013). 

On remand, and after holding a pretrial conference with the parties, the district court 

again scheduled the case for a jury trial. R. 90 (4/12/13 Pretrial Order) (Page ID #2141). But six 

days before the start of trial, Slep-Tone filed a document titled “Disclaimer of Damages,” in 

which it disclaimed all money damages. R. 92 (Disclaimer of Damages) (Page ID #2154). 

Based on its disclaimer, Slep-Tone stated that the only remaining issues were equitable and 
No. 13-4105 Slep-Tone Entm’t Corp. v. Karaoke Kandy Store, Inc. et al. Page 3

“therefore request[ed] a bench trial of the remaining issues.” Id. at 1 (Page ID #2154). The next 

day, Slep-Tone filed a trial brief in which it declined to offer proposed voir dire questions or jury 

instructions because it believed there was no right to a jury in a trial seeking only injunctive 

relief. R. 96 (Slep-Tone Trial Br. at 15) (Page ID #2183). 

Despite Slep-Tone’s disclaimer, the district court empaneled a twelve-person jury 

without comment on the record before us, and the parties tried the case to the jury over the 

course of four days. Following presentation of the evidence, the district court submitted a single 

interrogatory to the jury: “Do you find that Plaintiff proved by a preponderance of the evidence 

that Defendants infringed on Plaintiff’s trademarks?” R. 122 (Trial Tr. at 133) (Page ID #2947). 

The jury answered: “No.” Id. at 146 (Page ID #2960). The district court entered judgment for 

the Defendants the next day, finding: “based upon the Interrogatory Answer, and the evidence 

presented at trial, the Court enters Judgment pursuant to Rule 58 of the Federal Rules of Civil 

Procedure in favor of the Defendants Karaoke Kandy Store, Inc. and Charles M. Polidori on 

Plaintiff’s Complaint.” R. 110 (D. Ct. J. at 2‒3) (Page ID #2275‒76). The judgment also stated 

that the jury was sworn pursuant to Federal Rule of Civil Procedure 39(c)(1). Id. at 1 (Page ID 

#2274).1 Rule 39(c)(1) states: “In an action not triable of right by a jury, the court, on motion or 

on its own . . . may try any issue with an advisory jury.” Fed. R. Civ. P. 39(c)(1). 

About two weeks after entry of judgment, Slep-Tone filed a “Request for Entry of 

Findings of Fact and Conclusions of Law.” R. 111 (Slep-Tone Req. at 1) (Page ID #2277). 

Slep-Tone asserted that the case was tried with an advisory jury and asked the court to enter 

findings of fact and conclusions of law as required by Federal Rule of Civil Procedure 52. Id. 

Two weeks later, before the district court or the Defendants took any action in response to this 

request, Slep-Tone filed a notice of appeal of the district court’s final judgment. R. 116 (Notice 

of Appeal) (Page ID #2304). The district court has not ruled on Slep-Tone’s request for findings 

of fact and conclusions of law. 

On appeal, Slep-Tone argues that the judgment for the Defendants was clearly erroneous 

and that the district court erred by failing to enter findings of fact and conclusions of law as 

required by Rule 52. 

 1

This was the only indication in the record before us that the jury was advisory.
No. 13-4105 Slep-Tone Entm’t Corp. v. Karaoke Kandy Store, Inc. et al. Page 4

II. ANALYSIS

Even when not raised by the parties, we have an independent obligation to determine 

whether we have jurisdiction to resolve an appeal. Answers in Genesis of Ky., Inc. v. Creation 

Ministries Int’l, Ltd., 556 F.3d 459, 465 (6th Cir. 2009). Federal appellate courts have 

jurisdiction over “all final decisions of the district courts.” 28 U.S.C. § 1291. “A district court’s 

decision is ‘final’ for purposes of § 1291 when it ends the litigation on the merits and leaves 

nothing for the court to do but execute the judgment.” Inge v. Rock Fin. Corp., 281 F.3d 613, 

617 (6th Cir. 2002) (internal quotation marks and citation omitted). 

Under Federal Rule of Appellate Procedure 4, a notice of appeal “must be filed with the 

district clerk within 30 days after entry of the judgment or order appealed from.” Fed. R. App. P. 

4(a)(1)(A). Although this requirement is jurisdictional, Bowles v. Russell, 551 U.S. 205 (2007), 

Rule 4(a)(4)(A) lists a number of post-judgment motions that toll the period for filing a notice of 

appeal. See Fed. R. App. P. 4(a)(4)(A); Howard v. United States, 533 F.3d 472, 475 (6th Cir. 

2008). Indeed, “[i]f a party files a notice of appeal after the court announces or enters a 

judgment—but before it disposes of any motion listed in Rule 4(a)(4)(A)—the notice becomes 

effective to appeal a judgment or order, in whole or in part, when the order disposing of the last 

such remaining motion is entered.” Fed. R. App. P. 4(a)(4)(B)(i). Thus, a notice of appeal 

becomes effective after resolution of the post-judgment motions listed in Rule 4(a)(4)(A). Id. 

Included among the motions listed in Rule 4(a)(4)(A) are motions “to amend or make 

additional factual findings under [Federal Rule of Civil Procedure] 52(b).” Fed. R. App. P. 

4(a)(4)(A)(ii). Under Federal Rule of Civil Procedure 52, “[i]n an action tried . . . with an 

advisory jury, the court must find the facts specially and state its conclusions of law separately. 

The findings and conclusions may be stated on the record after the close of the evidence or may 

appear in an opinion or a memorandum of decision filed by the court.” Fed. R. Civ. P. 52(a)(1). 

No later than twenty-eight days after entry of judgment, upon a party’s motion “the court may 

amend its findings—or make additional findings—and may amend the judgment accordingly.” 

Id. at Rule 52(b). 

Thus, under Federal Rule of Appellate Procedure 4(a)(4), a timely motion for findings of 

fact under Federal Rule of Civil Procedure 52(b) “render[s] a notice of appeal effective only after 
No. 13-4105 Slep-Tone Entm’t Corp. v. Karaoke Kandy Store, Inc. et al. Page 5

the district court enters an order disposing of such motion.” Kusens v. Pascal Co., 448 F.3d 349, 

360 (6th Cir. 2006). “[T]he concept of ‘effectiveness’ . . . delay[s] the transfer of jurisdiction to 

the appellate court from an otherwise timely filed notice of appeal until the relevant postjudgment motion is decided.” Wikol ex rel. Wikol v. Birmingham Pub. Sch. Bd. of Educ., 

360 F.3d 604, 609 (6th Cir. 2004). This is true “‘regardless of whether the motion was filed 

before or after the notice of appeal.’” Patterson v. Anderson, 586 F. App’x 657, 662 (6th Cir. 

2014) (quoting Ross v. Marshall, 426 F.3d 745, 751–52 (5th Cir. 2005)). As the Rule 4 advisory 

committee notes explain, a notice of appeal filed “after the filing of a motion but before 

disposition of the motion is, in effect, suspended until the motion is disposed of, whereupon, the 

previously filed notice effectively places jurisdiction in the court of appeals.” Fed. R. App. P. 4 

Advisory Committee Notes (1993 Amendment); Patterson, 586 F. App’x at 662 (“[T]he timely 

filing of a motion listed in Rule 4(a)(4)(A) . . . has been held to suspend or render dormant a 

notice of appeal . . . .”). Until the motion is resolved, the appellate court does not have 

jurisdiction to resolve the appeal. Wikol, 360 F.3d at 609; see 16A Charles A. Wright, Arthur R. 

Miller, & Edward H. Cooper, Federal Practice and Procedure: Jurisdiction § 3950.4 (4th ed. 

2014) (“Until that order is entered, the notice of appeal is not effective, and until the notice of 

appeal is effective, the appellate court can exercise no jurisdiction over the case.”); Simmons v. 

Reliance Standard Life Ins. Co. of Tex., 310 F.3d 865, 868 (5th Cir. 2002) (“Because [the 

defendant] timely filed its motion for reconsideration, and the district [court] has not yet 

disposed of that motion, it seems clear that the district court’s decision is not final. Therefore, 

we have no jurisdiction over this appeal.”); see also United States v. Ibarra, 502 U.S. 1, 5 (1991) 

(“[T]he consistent practice in civil and criminal cases alike has been to treat timely petitions for 

rehearing as rendering the original judgment nonfinal for purposes of appeal for as long as the 

petition is pending.”). 

We do not have jurisdiction to resolve the appeal here. The district court appears to have 

treated the jury’s finding as advisory pursuant to Rule 39(c)(1), and it entered judgment for the 

Defendants “based on the Interrogatory Answer, and the evidence presented at trial,” without 

further explanation. R. 110 (D. Ct. J. at 1‒3) (Page ID #2274‒76). The district court did not set 

out the facts specially or the law separately, as Rule 52 requires in actions tried with an advisory 

jury. See Fed. R. Civ. P. 52(a). Less than two weeks later, Slep-Tone filed a timely request for 
No. 13-4105 Slep-Tone Entm’t Corp. v. Karaoke Kandy Store, Inc. et al. Page 6

findings of fact and conclusions of law pursuant to Rule 52, and then before the district court 

decided the motion, Slep-Tone filed its notice of appeal of the district court’s judgment and 

pursued its appeal in this court. Because the district court has not ruled on Slep-Tone’s timely 

Rule 52 motion, the notice of appeal is ineffective at this time, and we do not have jurisdiction to 

resolve this appeal. Fed. R. App. P. 4(a)(4)(A)‒(B); Wikol, 360 F.3d at 609. 

At oral argument, the Defendants asserted a number of reasons why they believe we have 

jurisdiction to resolve this appeal, none of which are persuasive. The Defendants first argued 

that Slep-Tone’s post-judgment filing was not a “motion” because it was styled a “request.” 

They also noted that Slep-Tone cited Rule 52(a)(1) in its filing rather than Rule 52(b), the subsection cited in Federal Rule of Appellate Procedure 4’s list of motions that toll the period for 

filing a notice of appeal. See Fed. R. App. P. 4(a)(4)(A)(ii). But “[t]he substance of the motion, 

rather than its form, controls our inquiry.” Brown v. Local 58, Int’l Bhd. of Elec. Workers, AFLCIO, 76 F.3d 762, 768 (6th Cir. 1996). Although brief, Slep-Tone’s post-judgment request 

simply and plainly asked the district court to amend its judgment to enter the same “additional 

findings” contemplated by both Federal Rule of Appellate Procedure 4 and Federal Rule of Civil 

Procedure 52 because the case was tried with an advisory jury. See Fed. R. App. P. 

4(a)(4)(A)(ii); Fed R. Civ. P. 52(a), (b). Slep-Tone’s filing was thus a “motion” under Federal 

Rule of Civil Procedure 7. See Fed. R. Civ. P. 7(b)(1) (a motion must be in writing or made 

during a hearing or trial, state the grounds for the request with particularity, and state the relief 

sought). And, given the substance of Slep-Tone’s motion, its failure to specifically cite subsection (b) of Rule 52 in its request for findings of fact and conclusions of law is immaterial. See

Brown, 76 F.3d at 768 (“That Local 58 did not style its pleading as a Rule 59(e) motion is not 

dispositive.”). 

The Defendants also argued that we have jurisdiction because Slep-Tone essentially 

waived its right to findings of fact and conclusions of law under Rule 52 by failing to submit 

proposed findings and conclusions to the court prior to trial. But this is an argument that should 

be raised with the district court in the first instance. In any case, the Defendants offered no legal 

authority to support this claim. Rule 52 does not state that a party must first propose its own 

findings and conclusions as a condition precedent to the court fulfilling its obligations under the 
No. 13-4105 Slep-Tone Entm’t Corp. v. Karaoke Kandy Store, Inc. et al. Page 7

rule. To the contrary, under Rule 52 “the court must find the facts specially and state its 

conclusions of law separately” in actions tried with an advisory jury. Fed. R. Civ. P. 52(a) 

(emphasis added). So, to the extent the jury was advisory here—and, though not entirely clear 

from the record, it appears that it was—the rule requires findings of fact and conclusions of law. 

Id.; see Zack v. Comm’r, 291 F.3d 407, 412 (6th Cir. 2002) (“[T]he trial court’s findings [under 

Rule 52(a)] must support the ultimate legal conclusions reached. The findings are necessary not 

only to reveal the logic behind the trial court’s decision, but also to enable an appellate court to 

conduct a meaningful review of the trial court’s order.”) (citations omitted). 

In sum, because the district court has not ruled on Slep-Tone’s Rule 52(b) post-judgment 

motion, we lack jurisdiction to resolve this appeal and must remand the case to the district court. 

After the district court resolves the motion, Slep-Tone’s notice of appeal will become effective. 

Until then, we stay the appeal pending the district court’s resolution of Slep-Tone’s pending 

post-judgment motion. See Florian v. Sequa Corp., 294 F.3d 828, 829‒30 (7th Cir. 2002) (a stay 

of appellate proceedings is proper until the district court resolves the pending post-judgment 

motion); see also Preferred Props., Inc. v. Indian River Estates, Inc., 276 F.3d 790, 796 n.4 (6th 

Cir. 2002) (“[A] premature notice of appeal is effective to vest appellate jurisdiction when the 

judgment becomes final prior to the disposition of the appeal.”); 16A Charles A. Wright, Arthur 

R. Miller, & Edward H. Cooper, Federal Practice and Procedure: Jurisdiction § 3950.4 (4th ed. 

2014) (where a post-judgment motion remains pending, “the notice of appeal becomes 

temporarily ineffective, but later springs to life when the order disposing of the last such 

remaining [tolling] motion is entered.”) (internal quotation marks and footnotes omitted). 

Pursuant to the stay, when the pending motion is resolved and the district court’s judgment is 

final, the parties should consider what further action is appropriate under the circumstances. 

III. CONCLUSION

For the foregoing reasons, we STAY this appeal and REMAND the case to the district 

court to resolve the pending post-judgment motion in accordance with this opinion.