FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

NUTRITION DISTRIBUTION LLC, an 

Arizona Limited Liability Company,

Plaintiff-Appellant,

v.

IRONMAG LABS, LLC, a Nevada 

Limited Liability Company; ROBERT 

DIMAGGIO, an individual; IRON MAG 

RESEARCH, a Nevada limited liability 

company,

Defendants-Appellees.

No. 19-55251

D.C. No.

2:15-cv-08233-

R-JC

ORDER AND 

AMENDED 

OPINION

Appeal from the United States District Court

for the Central District of California

Manuel L. Real, District Judge, Presiding

Submitted May 5, 2020*

Pasadena, California

Filed August 25, 2020

Amended October 29, 2020

* The panel unanimously concludes this case is suitable for decision 

without oral argument. See Fed. R. App. P. 34(a)(2).
2 NUTRITION DISTRIBUTION V. IRONMAG LABS

Before: Milan D. Smith, Jr., Bridget S. Bade, and

Daniel A. Bress, Circuit Judges.

Order;

Opinion by Judge Bress

SUMMARY**

Appellate Jurisdiction / Attorneys’ Fees

The panel filed (1) an order amending its opinion and 

denying on behalf of the court a petition for rehearing en 

banc, and (2) an amended opinion dismissing as untimely 

plaintiff’s appeal from the district court’s judgment and 

affirming the district court’s post-judgment denial of 

attorneys’ fees in an action under the Lanham Act.

On November 16, 2018, on cross motions for summary 

judgment, the district court rejected plaintiff’s claim for 

monetary relief, issued an injunction in favor of plaintiff, and 

denied plaintiff’s request for attorneys’ fees under the 

Lanham Act. On December 13, 2018, the district court 

issued findings of fact and conclusions of law and entered 

judgment. On December 27, 2018, plaintiff moved for 

attorneys’ fees under Federal Rule of Civil Procedure 54(d). 

The district court denied the post-judgment fees motion on 

January 30, 2019, and plaintiff filed a notice of appeal on 

March 1, 2019, within 30 days of the ruling on the fees 

motion.

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

has been prepared by court staff for the convenience of the reader.
NUTRITION DISTRIBUTION V. IRONMAG LABS 3

Under Federal Rule of Appellate Procedure 4(a)(1)(A), 

a notice of appeal must be filed within 30 days after entry of 

the judgment or order appealed from. The panel held that 

the notice of appeal was untimely as to the district court’s 

judgment because the motion for attorneys’ fees did not 

itself extend the time to appeal, and the district court did not 

enter an order extending the time pursuant to Federal Rule 

of Civil Procedure 58. Further, agreeing with the Sixth 

Circuit, the panel held that the fees motion could not be 

recharacterized as a Rule 59 motion to alter or amend the 

judgment for purposes of extending the time to appeal.

The panel held that the notice of appeal was timely as to 

the district court’s later order denying attorneys’ fees. The 

panel held that the district court properly exercised its 

discretion in denying fees under the Lanham Act, which 

allows an award of attorneys’ fees in exceptional cases.

COUNSEL

Robert Tauler and Valerie Saryan, Tauler Smith LLP, Los 

Angeles, California, for Plaintiff-Appellant.

Treg A. Julander, Ostergar Law Group PC, Irvine, 

California, for Defendants-Appellees.
4 NUTRITION DISTRIBUTION V. IRONMAG LABS

ORDER

The court’s opinion filed August 25, 2020, and appearing 

at 972 F.3d 1088 (9th Cir. 2020), is hereby amended. An 

amended opinion is filed concurrently with this order.

With this amended opinion, the panel has voted to deny 

the petition for rehearing en banc. 

The full court has been advised of the petition for 

rehearing en banc, and no judge has requested a vote on 

whether to rehear the matter en banc. Fed. R. App. P. 35.

The petition for rehearing en banc is DENIED. No 

subsequent petitions for panel rehearing or rehearing en banc 

shall be permitted.

OPINION

BRESS, Circuit Judge:

Although appellant did not file this appeal to present the 

question whether its notice of appeal was timely, that is now 

the principal issue we must resolve. Generally, a notice of 

appeal in a civil case must be filed “within 30 days after 

entry of the judgment or order appealed from.” Fed. R. App. 

P. 4(a)(1)(A). After the district court entered judgment in 

this case, appellant could have filed a notice of appeal within 

30 days but did not. Instead, appellant filed a post-judgment 

motion for attorneys’ fees under Federal Rule of Civil 

Procedure 54(d) and then filed a notice of appeal 30 days 

after the district court denied that fees motion. The notice of 

appeal purported to appeal both the later denial of fees and 
NUTRITION DISTRIBUTION V. IRONMAG LABS 5

the underlying judgment, which by that point had been 

entered 78 days prior.

We hold that the notice of appeal was untimely as to the 

district court’s underlying judgment. The Federal Rules are 

clear that “[o]rdinarily, the entry of judgment may not be 

delayed, nor the time for appeal extended, in order to tax 

costs or award fees.” Fed. R. Civ. P. 58(e). A motion for 

attorneys’ fees does not extend the time to appeal the 

underlying judgment unless the district court so orders under 

Rule 58(e). In this case, appellant did not seek such an order, 

nor did the district court enter one. Appellant’s attempt to 

now save its untimely appeal of the underlying judgment by 

recasting its fees motion as a Rule 59 motion to alter or 

amend the judgment likewise fails. The 1993 amendments 

to the Federal Rules and the Supreme Court precedent that 

gave rise to them make clear that attorneys’ fees motions 

cannot be recharacterized as Rule 59 motions to extend the 

time to appeal an underlying judgment.

Because appellant did not file a notice of appeal within 

30 days of the district court’s judgment or obtain a Rule 

58(e) order extending the time to appeal, the notice of appeal 

was untimely as to the district court’s underlying judgment. 

The notice of appeal was timely as to the district court’s later 

order denying attorneys’ fees. We affirm the denial of fees, 

and otherwise dismiss the appeal for lack of jurisdiction.

I

Appellant Nutrition Distribution LLC filed over eighty 

false advertising lawsuits between 2015 and 2018. This is 

one of them. Here, Nutrition Distribution alleged that 

Appellee IronMag Labs, LLC violated the Lanham Act, 

15 U.S.C. §§ 1051–1141n, by falsely advertising IronMag’s 
6 NUTRITION DISTRIBUTION V. IRONMAG LABS

nutritional supplements as having “no toxicity” or 

“unwanted side effects.”

Following discovery, the parties cross moved for 

summary judgment. On November 16, 2018, the district 

court granted in part and denied in part the motions. The 

district court rejected Nutrition Distribution’s claim for 

monetary relief because there was “no genuine dispute of 

fact regarding whether [Nutrition Distribution] ha[d] shown 

any injury caused by” IronMag’s advertising. But the 

district court issued an injunction because IronMag’s 

statements were likely to deceive consumers. In the same 

order, the district court denied Nutrition Distribution’s 

request for attorneys’ fees, finding that the case was not 

“exceptional,” as required for an award of fees under the 

Lanham Act. See 15 U.S.C. § 1117(a).

On December 13, 2018, the district court issued findings 

of fact and conclusions of law consistent with its November 

16, 2018 order. The district court also entered judgment that 

same day in a separate document. See Fed. R. Civ. P. 58(a). 

Nutrition Distribution did not file a notice of appeal at this 

time.

Instead, on December 27, 2018, Nutrition Distribution 

filed a motion for attorneys’ fees under Federal Rule of Civil 

Procedure 54(d). Like its prior fee request, Nutrition 

Distribution argued that the case was “exceptional” under 

the Lanham Act. The district court denied Nutrition 

Distribution’s post-judgment fees motion on January 30, 

2019.

Nutrition Distribution filed a notice of appeal on 

March 1, 2019, within 30 days of the ruling on the fees 

motion. The notice of appeal purported to appeal both the 

district court’s underlying December 13, 2018 judgment and 
NUTRITION DISTRIBUTION V. IRONMAG LABS 7

its January 30, 2019 denial of attorneys’ fees. In this court, 

IronMag moved to dismiss the appeal as untimely. After a 

motions panel denied that request without prejudice, 

IronMag renewed the argument in its answering brief.

II

Because the 30-day period in Federal Rule of Appellate 

Procedure 4(a)(1)(A) is based in statute, see 28 U.S.C. 

§ 2107(a), the “timely notice of appeal is a non-waivable 

jurisdictional requirement.” Stephanie-Cardona LLC v. 

Smith’s Food & Drug Ctrs., Inc., 476 F.3d 701, 703 (9th Cir. 

2007); Bowles v. Russell, 551 U.S. 205, 212–13 (2007). If 

the time to appeal ran from the December 13, 2018 entry of 

judgment, Nutrition Distribution’s appeal of that judgment 

is untimely. If, however, the time to appeal was extended 

until the district court disposed of Nutrition Distribution’s 

motion for attorneys’ fees, its appeal of the underlying 

judgment is timely.

We hold that Nutrition Distribution’s appeal of the 

December 13, 2018 judgment is untimely and dismiss it for 

lack of jurisdiction. We take this opportunity to address the 

rules and precedents that compel this conclusion, for the 

benefit of litigants who wish to ensure the timeliness of their 

appeals in cases involving post-judgment motions for 

attorneys’ fees.

A

The Federal Rules of Appellate and Civil Procedure 

work in combination to set forth the rules governing when 

notices of appeal must be filed. Typically, a notice of appeal 

in a civil case “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). The time to appeal generally 
8 NUTRITION DISTRIBUTION V. IRONMAG LABS

runs from the entry of judgment. Fed. R. App. P. 

4(a)(7)(A)(ii); see Fed. R. Civ. P. 58(a).

But rules often have exceptions. As relevant here, 

Federal Rule of Appellate Procedure 4(a) specifies that the 

time to file a notice of appeal is extended if a party timely 

files certain qualifying motions in the district court:

(A) If a party files in the district court any of 

the following motions under the Federal 

Rules of Civil Procedure—and does so 

within the time allowed by those rules—the 

time to file an appeal runs for all parties from 

the entry of the order disposing of the last 

such remaining motion:

. . .

(iii) for attorney’s fees under Rule 54 if 

the district court extends the time to 

appeal under Rule 58; [or]

(iv) to alter or amend the judgment under 

Rule 59;

. . . .

Fed. R. App. P. 4(a)(4)(A).

Rule 4(a)(4)(A) lists various other qualifying motions, 

but for ease of exposition we have quoted above the ones 

that matter here. It is important to see that this Rule treats 

motions for attorneys’ fees differently from other qualifying 

motions, the filing of which extends the time to appeal: an 

attorneys’ fees motion, unlike the other motions listed, 

requires additional action by the district court. Specifically, 
NUTRITION DISTRIBUTION V. IRONMAG LABS 9

the time to file an appeal runs from the denial of an 

attorneys’ fees motion “if the district court extends the time 

to appeal under Rule 58.” Fed. R. App. P. 4(a)(4)(A)(iii) 

(emphasis added). That is a reference to Federal Rule of 

Civil Procedure 58(e), which states:

Ordinarily, the entry of judgment may not be 

delayed, nor the time for appeal extended, in 

order to tax costs or award fees. But if a 

timely motion for attorney’s fees is made 

under Rule 54(d)(2), the court may act before 

a notice of appeal has been filed and become 

effective to order that the motion have the 

same effect under Federal Rule of Appellate 

Procedure 4(a)(4) as a timely motion under 

Rule 59.

Fed. R. Civ. P. 58(e).

Together, Rule 58(e) and Federal Rule of Appellate 

Procedure 4(a)(4)(A)(iii) give district courts the ability to 

ensure that an attorneys’ fees request is treated like a Rule 

59 motion for purposes of extending the time for filing a 

notice of appeal. See, e.g., Ray Haluch Gravel Co. v. Cent. 

Pension Fund of Int’l Union of Operating Eng’rs & 

Participating Emps., 571 U.S. 177, 186–87 (2014); Moody 

Nat’l Bank of Galveston v. GE Life & Annuity Assurance 

Co., 383 F.3d 249, 252–53 (5th Cir. 2004). As noted above, 

filing a Rule 59 motion extends the time for filing a notice 

of appeal, so that the deadline to appeal runs from the order 

disposing of the Rule 59 motion. See Fed. R. App. 

P. 4(a)(4)(A)(iv).
10 NUTRITION DISTRIBUTION V. IRONMAG LABS

Rule 58(e) was added to the Federal Rules in 1993.1 As 

the Advisory Committee explained, “[t]his revision permits, 

but does not require, the court to delay the finality of the 

judgment for appellate purposes under revised Fed. R. App. 

P. 4(a) until the fee dispute is decided.” Fed. R. Civ. P. 58, 

adv. comm. note (1993). To obtain such an extension 

“requires entry of an order by the district court before the 

time a notice of appeal becomes effective for appellate 

purposes.” Id. The upshot is that a motion for attorneys’ 

fees does not extend the time to appeal “unless a district 

court, acting under Rule 58, enters an order extending the 

time for appeal.” Fed. R. App. P. 4, adv. comm. note (1993); 

see also Stephanie-Cardona, 476 F.3d at 705 (“The time to 

appeal is not extended unless the district court, pursuant to 

its authority under Fed. R. Civ. P. 58[(e)], orders that an 

attorney’s fees motion has the effect of delaying the clock 

for filing the notice of appeal.”); Moody, 383 F.3d at 252 (“In 

1993, Appellate Rule 4(a)(4) was amended to include among 

the motions that will toll the time for filing a notice of appeal 

motions for attorney’s fees under Rule 54 if the district court 

extends the time to appeal under Rule 58.”).

Once judgment is entered, and absent the filing of a 

different qualifying motion that would extend the time for 

filing a notice of appeal, a party who has moved for 

attorneys’ fees has two main options for ensuring a timely 

appeal of the underlying judgment:

1 The 1993 amendments housed this provision in Rule 58(c)(2), but 

it was later relocated to Rule 58(e) by the 2007 amendments to the 

Federal Rules. See Heck v. Triche, 775 F.3d 265, 275 n.9 (5th Cir. 2014). 

For ease of reference, we refer to the rule as Rule 58(e) throughout this 

opinion.
NUTRITION DISTRIBUTION V. IRONMAG LABS 11

First, [a party] may appeal the fee award as it 

would any final judgment. . . . If the party 

ha[s] also appealed the underlying merits 

judgment—as is usually the case—the two 

appeals would proceed independently, but 

either party could petition for consolidation 

[in the court of appeals]. Second, the party 

could move under Fed. R. Civ. P. 58 to 

enlarge the time to appeal the underlying 

judgment until the fee judgment is rendered. 

The party could then appeal the merits 

judgment and the fee award together.

Cal. Med. Ass’n v. Shalala, 207 F.3d 575, 576 (9th Cir. 

2000) (citations omitted). The first option requires two 

notices of appeal, the second option just one.

Perhaps due to a healthy lawyerly paranoia for missing 

deadlines, common experience indicates that many litigants 

choose the first option. Consolidating the appeals in this 

circumstance is straightforward, and there is no penalty for 

timely (but separately) appealing a judgment and a laterissued fee decision. See Fed. R. App. P. 4(a)(4)(B)(i).2

2 Premature notices of appeal once created serious problems. Before 

1993, the Federal Rules of Appellate Procedure provided that a notice of 

appeal “shall have no effect” if it was filed before the district court ruled 

on a qualifying post-judgment motion that extended the time to appeal. 

Fed. R. App. P. 4(a)(4)(A) (1979). This created a “dire trap for the 

unwary,” because a litigant who failed to file a new notice of appeal after 

a post-judgment motion was adjudicated “lost [its] chance to appeal.” 

16A Charles Alan Wright et al., Federal Practice & Procedure § 3950.4, 

at 366 (5th ed. 2019) (“Wright & Miller”); see also Orr v. Plumb, 

884 F.3d 923, 927 (9th Cir. 2018) (explaining that confusion over a 

judgment’s finality “could have harsh consequences, particularly with 
12 NUTRITION DISTRIBUTION V. IRONMAG LABS

B

Nutrition Distribution did not file a notice of appeal 

within 30 days of the district court’s December 13, 2018 

judgment. Nutrition Distribution also did not file a motion 

under Rule 58(e) seeking an order that the time to appeal 

should run from the disposition of its post-judgment 

attorneys’ fees motion. Nor did the district court enter such 

an order. This leaves Nutrition Distribution in the 

unenviable position of asking that its motion for attorneys’ 

fees—which was clearly styled as such and requested fees 

under Rule 54(d)—be recharacterized as a motion to alter or 

amend the judgment under Rule 59.

Our cases allow us to reconstrue a motion filed in the 

district court as part of ascertaining whether an appeal is 

timely. See, e.g., United States ex rel. Hoggett v. Univ. of 

Phx., 863 F.3d 1105, 1108 (9th Cir. 2017) (“A motion’s 

‘nomenclature is not controlling.’ Instead, ‘we construe [the 

motion], however styled, to be the type proper for the relief 

requested.’”) (alteration in original) (quoting Miller v. 

Transamerican Press, Inc., 709 F.2d 524, 527 (9th Cir. 

1983)). And if Nutrition Distribution’s Rule 54(d) motion 

for attorneys’ fees could be recharacterized as a Rule 59 

motion, the appeal of the district court’s underlying 

judgment would be timely, because a Rule 59 motion 

the rule then in effect that a premature notice of appeal was ineffectual 

if certain post-decision motions were also filed”). The 1993 amendments 

to the Federal Rules cured this problem by allowing a previously-filed 

notice of appeal to become effective after the district court’s adjudication 

of a qualifying post-judgment motion. See Fed. R. App. P. 4(a)(4)(B)(i); 

Fed. R. App. P. 4(a)(2); Wright & Miller § 3950.4, at 366–67. As 

discussed below, several of the older precedents involving Rule 59 were 

decided in the prior regime in which premature notices of appeal were 

ineffective.
NUTRITION DISTRIBUTION V. IRONMAG LABS 13

extends the time for filing an appeal. Fed. R. App. P. 

4(a)(4)(A)(iv).

It should be clear that Nutrition Distribution’s argument, 

if accepted, would facilitate an end-run around Rule 58(e). 

Rather than having to seek the district court’s permission 

that the time to file a notice of appeal run from the later 

disposition of the post-judgment fees motion, see Fed. R. 

Civ. P. 58(e), Nutrition Distribution would grant itself an 

extension through the expedient of recharacterizing its own 

motion for attorneys’ fees. The whole point of Rule 58(e) is 

to allow—but not require—district courts to treat attorneys’ 

fees motions as having “the same effect” as a Rule 59 motion 

for purposes of filing a notice of appeal. Ray Haluch Gravel 

Co., 571 U.S. at 186–87. Nutrition Distribution would 

instead make Rule 58(e)’s procedure advisory. It is hard to 

imagine this is what the drafters of the 1993 amendments to 

the Federal Rules had in mind.

But, as it happens, this is not what they had in mind: the 

1993 amendments to the Federal Rules are based on 

Supreme Court cases that make clear that attorneys’ fees 

motions cannot be recharacterized as Rule 59 motions to 

alter or amend the judgment. In White v. New Hampshire 

Department of Employment Security, 455 U.S. 445 (1982), 

the Supreme Court rejected the view that a post-judgment 

motion for attorneys’ fees under 42 U.S.C. § 1988 was a 

motion to alter or amend the judgment under Rule 59. The 

Court held that “[a] motion for attorney’s fees is unlike a 

motion to alter or amend a judgment” because “[i]t does not 

imply a change in the judgment, but merely seeks what is 

due because of the judgment.” Id. at 452 (quotations 

omitted). For this reason, “the federal courts generally have 

invoked Rule 59(e) only to support reconsideration of 

matters properly encompassed in a decision on the merits.” 
14 NUTRITION DISTRIBUTION V. IRONMAG LABS

Id. at 451. Unlike a post-judgment motion on the merits, “a 

request for attorney’s fees under § 1988 raises legal issues 

collateral to the main cause of action—issues to which Rule 

59(e) was never intended to apply.” Id.

Several years later, in Buchanan v. Stanships, Inc., 

485 U.S. 265 (1988) (per curiam), the Supreme Court held 

that a post-judgment motion for costs could not be treated as 

a Rule 59 motion to alter or amend the judgment. Relying 

on White, the Court explained that like fees, the 

“[a]ssessment of such costs does not involve reconsideration 

of any aspect of the decision on the merits.” Id. at 268. The 

Supreme Court made clear that the Federal Rules reflected 

“[a] sharp distinction between the judgment on the merits 

and an award of costs under Rule 54(d),” reiterating that “a 

request for costs raises issues wholly collateral to the 

judgment in the main cause of action.” Id. at 268–69.

Building further on White, the Supreme Court made this 

same point again in Budinich v. Becton Dickinson & Co., 

486 U.S. 196 (1988), holding that a post-judgment motion 

for attorneys’ fees did not prevent a judgment from 

becoming final. It is “indisputable,” the Court explained, 

“that a claim for attorney’s fees is not part of the merits of 

the action to which the fees pertain.” Id. at 200. For that 

reason, “[c]ourts and litigants are best served by the brightline rule, which accords with traditional understanding, that 

a decision on the merits is a ‘final decision’ for purposes of 

[28 U.S.C.] § 1291 whether or not there remains for 

adjudication a request for attorney’s fees attributable to the 

case.” Id. at 202–03.

Our precedents are in accord, recognizing “Budinich’s 

emphasis on the need for a bright-line rule” based on the 

overarching principle that attorneys’ fees “associated with 

the litigation at hand are indeed always collateral.” U.S. for 
NUTRITION DISTRIBUTION V. IRONMAG LABS 15

Use & Benefit of Familian Nw., Inc. v. RG & B Contractors, 

Inc., 21 F.3d 952, 955 (9th Cir. 1994) (emphasis added). 

Indeed, we had reached substantially the same conclusion 

even before Budinich was decided.

In Durham v. Kelly, 810 F.2d 1500 (9th Cir. 1987), a 

district court entered final judgment on the merits and 

simultaneously ordered the parties to bear their own costs. 

Id. at 1502. The plaintiff then filed a post-judgment motion 

for costs under Rules 54 and 59 and a notice of appeal, and 

the district court ruled on the costs request. Id. As noted 

above, ante at 11 n.2, at the time the Federal Rules provided 

that if a party filed a Rule 59 motion, a notice of appeal filed 

before a ruling on that motion “shall have no effect.” Fed. 

R. App. P. 4(a)(4)(A) (1979). The question in Durham was 

thus whether the plaintiff should have filed a second notice 

of appeal because its costs motion was styled as a motion 

under Rule 59.

Relying on White, we held that the costs motion was not 

a Rule 59 motion. And we “adopt[ed] as the law of this 

circuit the rule that a motion to alter or amend a judgment to 

award costs does not come within Rule 59(e).” Durham, 

810 F.2d at 1503. Of note, the Supreme Court in Buchanan 

identified Durham as being on the prevailing side of the 

circuit split that the Court addressed in that case. See 

Buchanan, 485 U.S. at 267.

The Supreme Court precedent discussed above provides 

the basis for the current state of the Federal Rules. 

Following Budinich, the Federal Rules were amended in 

1993 to codify Budinich’s bright-line rule. The addition of 

Federal Rule of Civil Procedure 58(e) and related changes to 

Federal Rule of Appellate Procedure 4(a)(4) make plain that 

a motion for attorneys’ fees will not extend the time to appeal 

unless the district court specifically says so. As the 1993 
16 NUTRITION DISTRIBUTION V. IRONMAG LABS

Advisory Committee Notes to Federal Rule of Appellate 

Procedure 4(a)(4) explained, “[t]o conform to a recent 

Supreme Court decision, however—Budinich v. Becton 

Dickinson and Co., 486 U.S. 196 (1988)—the amendment 

excludes motions for attorney’s fees from the class of 

motions that extend the filing time unless a district court, 

acting under Rule 58, enters an order extending the time for 

appeal.” Fed. R. App. P. 4, adv. comm. note (1993); see also 

Fed. R. Civ. P. 58, adv. comm. note (1993) (citing Budinich 

as the background to the addition of Rule 58(e)); Heck, 

775 F.3d at 273 (“In 1993, Congress amended FRAP 4(a)(4) 

to conform to Budinich.”).

Under this framework, Nutrition Distribution’s postjudgment motion for attorneys’ fees cannot be treated as a 

Rule 59 motion to alter or amend the judgment. The text of 

the relevant rules distinguishes between motions for 

attorneys’ fees under Rule 54 and motions under Rule 59. 

See Fed. R. App. P. 4(a)(4)(A)(iii)–(iv); Fed. R. Civ. P. 

58(e). And White, Buchanan, and Budinich establish that 

Rule 59 does not extend to issues “collateral” to the merits 

of a case, such as a post-judgment motion for attorneys’ fees. 

See White, 455 U.S. at 451–52; Buchanan, 485 U.S. at 268; 

Budinich, 486 U.S. at 200–03. Indeed, the Supreme Court 

reiterated this core principle just this Term. See Banister v. 

Davis, 140 S. Ct. 1698, 1703 (2020) (quoting White for the 

proposition that Rule 59 generally has “only” been used to 

reconsider “matters properly encompassed in a decision on 

the merits” (quotations omitted)). The 1993 Amendments to 

the Federal Rules and the Supreme Court precedent upon 

which they were premised thus prohibit us from 

recharacterizing Nutrition Distribution’s attorneys’ fees 

motion as a motion under Rule 59.
NUTRITION DISTRIBUTION V. IRONMAG LABS 17

C

Against all of this, Nutrition Distribution offers three 

arguments for why, under the circumstances of this case, we 

should construe its fees motion as one under Rule 59. None 

of these arguments is persuasive.

1

Nutrition Distribution first cites Whittaker v. Whittaker 

Corp., 639 F.2d 516 (9th Cir. 1981),3 and Munden v. UltraAlaska Associates, 849 F.2d 383 (9th Cir. 1988), for the 

proposition that a fees motion is a motion under Rule 59 

when it substantively challenges whether fees should be 

awarded “at all.” But Whittaker and Munden did not involve 

fees motions and they both predated Rule 58(e). They are 

also not easily squared with the Supreme Court decisions 

discussed above.

Whittaker involved a judgment in which the district court 

also “included [an] award of costs to the plaintiffs” “as the 

prevailing party.” 639 F.2d at 520. After judgment was 

entered, but before the time to appeal expired, the defendant 

moved to have the parties bear their own costs, arguing that 

it, and “not the plaintiffs, should be considered the prevailing 

party.” Id. The district court denied the motion. Id. After 

learning that the plaintiffs would argue that the time to 

appeal ran from the date judgment was initially entered—

and not the date of the district court’s costs order—the 

defendant asked the district court to “determin[e] that the 

motion to retax costs had extended the time for filing a notice 

of appeal since it was a Fed. R. Civ. P. 59(e) motion to alter 

3 Whittaker was abrogated on grounds not relevant here in Credit 

Suisse Securities (USA) LLC v. Simmonds, 566 U.S. 221 (2012).
18 NUTRITION DISTRIBUTION V. IRONMAG LABS

or amend the judgment.” Id. The district court did so and 

ordered the defendant’s notice of appeal accepted for filing. 

Id.

On appeal, we held that the defendant’s costs motion 

extended the time to appeal and could be construed as a 

motion under Rule 59. Whittaker explained that “[f]or 

substantive challenges as to the appropriateness of awarding 

costs at all, especially where such challenge involves a 

redetermination of who was the prevailing party, Rule 59(e) 

may be appropriate.” Id. at 521. Because the defendant’s 

motion “went to the heart of how the judgment was to be 

characterized”—and the district court was “surely in a 

position to understand the ramifications of the motion”—we 

held that the defendant’s motion to re-tax costs was 

“correctly construed as a Rule 59(e) motion” and thus 

“extended the time for filing the notice of appeal.” Id.

Munden reflected a similar analysis. The plaintiff in 

Munden recovered damages in a judgment that also awarded 

“prejudgment interest from the date of injury.” 849 F.2d at 

384–85. After judgment was entered, the defendants moved 

to “deny [the plaintiff] prejudgment interest that had accrued 

after the expiration of an offer of judgment” and also “to 

amend the court’s findings of fact and judgment.” Id. at 385. 

The district court rejected the defendants’ prejudgment 

interest argument, but “modified its damages calculation, 

incorporated new conclusions, and amended its findings.” 

Id. The district court thereafter entered an amended 

judgment. Id.

In response, the defendants filed a further “Motion to 

Amend Form of Judgment,” again asking the district court 

“to delete those costs awarded . . . that were incurred after 

the offer of judgment” and to award defendants their postoffer costs. Id. While the defendants’ motion was pending, 
NUTRITION DISTRIBUTION V. IRONMAG LABS 19

the plaintiff filed a notice of appeal. Id. After the appeal 

was filed, the district court granted the defendants’ renewed 

motion in an order titled “Order (Motion to Amend 

Judgment Granted),” deleting costs accrued after the 

defendants’ settlement offer and “award[ing] certain costs to 

the defendants.” Id. The plaintiff did not file a renewed 

notice of appeal.

We held that we lacked jurisdiction because the 

plaintiff’s notice of appeal was premature and thus 

ineffective under the then-governing Federal Rules. Id.

at 386–87; see also ante at 11 n.2. Because we construed the 

defendant’s motion as a Rule 59 motion, the plaintiff’s 

earlier notice of appeal was filed too early and was therefore 

void. Munden, 849 F.2d at 386–87. In reaching this 

conclusion, we relied on Whittaker, explaining that “the 

defendants challenged costs previously awarded on a 

substantive basis.” Id. at 387. Because the request at issue 

involved “substantive, not merely ministerial or clerical, 

relief,” Munden held that the defendants’ motion was 

effectively a motion under Rule 59 and was treated as such 

by the district court. Id.

It should be clear by this point in our discussion that the 

substantive-clerical distinction in Whittaker and Munden is 

not easily reconciled with Supreme Court precedent. The 

entire point of the trio of Supreme Court cases discussed 

above was to fashion a straightforward rule that “looks 

solely to the character of the issue that remains open after the 

court has otherwise ruled on the merits of the case.” See Ray 

Haluch Gravel Co., 571 U.S. at 188. Whittaker and Munden 

treated motions for costs as cognizable under Rule 59. The 

Supreme Court has made clear, however, that motions for 

costs and attorneys’ fees raise issues collateral to the 

judgment—“issues to which Rule 59(e) was never intended 
20 NUTRITION DISTRIBUTION V. IRONMAG LABS

to apply.” See White, 455 U.S. at 451–52; Buchanan, 

485 U.S. at 268–69; Budinich, 486 U.S. at 200–03.

Whittaker was decided before the relevant Supreme 

Court decisions in this area. But Munden was decided after 

them and understandably has been criticized for failing to 

mention White, Buchanan, or Budinich. See Lentomyynti Oy 

v. Medivac, Inc., 997 F.2d 364, 367 (7th Cir. 1993) (“The 

[Munden] court did not discuss any of the relevant Supreme 

Court cases.”). Munden also tried to distinguish our prior 

decision in Durham as a “narrow” case “seeking reallocation 

of costs requiring only clerical changes.” 849 F.2d at 387. 

But we question whether that was a fair reading of Durham, 

810 F.2d at 1503, a decision that was in accord with White, 

Buchanan, and Budinich, as well as other pre-existing circuit 

precedent. See Int’l Ass’n of Bridge, Structural, 

Ornamental, & Reinforcing Ironworkers’ Local Union 75 v. 

Madison Indus., Inc., 733 F.2d 656, 658–59 (9th Cir. 1984) 

(adopting “bright-line rule” and rejecting “case-by-case 

approach” to whether “judgments finally disposing of the 

merits are final and appealable even though questions 

relating to attorney’s fees are unresolved”).

Although Whittaker and Munden are in obvious tension 

with Supreme Court precedent, this case does not require us 

to pronounce their ultimate fate. Whittaker and Munden, 

which involved costs motions, were decided before the 1993 

amendments to the Federal Rules, see Fed. R. Civ. P. 58(e); 

Fed. R. App. P. 4(a)(4)(A)(iii), which lay out the specific 

rules for the timing of notices of appeal in the context of 

motions for attorneys’ fees. Whittaker and Munden had no 

occasion to consider a motion for attorneys’ fees, much less 

Rule 58(e) or the related amendments to Federal Rule of 

Appellate Procedure 4(a)(4)(A). Today, it is those Rules that 

dictate when a fees motion can extend the time to appeal. 
NUTRITION DISTRIBUTION V. IRONMAG LABS 21

See Ray Haluch Gravel Co., 571 U.S. at 186–87; StephanieCardona, 476 F.3d at 705; Moody, 383 F.3d at 252–53; Cal. 

Med. Ass’n, 207 F.3d at 576.

Nutrition Distribution made no effort under Rule 58(e) 

to obtain—and did not obtain—an extension of the time to 

appeal due to its filing of an attorneys’ fees motion. Its 

notice of appeal was therefore untimely as to the underlying 

judgment. See Stephanie-Cardona, 476 F.3d at 705. 

Although we question how Whittaker and Munden can 

remain good law, see Buchanan, 485 U.S. at 268–69, 

because this case involves a fees motion and not a costs 

motion, whether Whittaker and Munden can still govern 

motions for costs is a question for another day. It is enough 

here to hold that, under the 1993 amendments to the Federal 

Rules, an attorneys’ fees motion will not extend the time to 

appeal unless the district court orders that result under Rule 

58(e). Stephanie-Cardona, 476 F.3d at 705.

2

Nutrition Distribution next argues that its attorneys’ fees 

motion can be reconstrued as a Rule 59 motion because the 

district court had previously rejected Nutrition 

Distribution’s fee request in its summary judgment decision. 

The suggestion is that although an attorneys’ fees motion 

usually cannot be recharacterized as a Rule 59 motion, it can 

be where there is an extant order denying fees. This theory 

again fails under the 1993 amendments to the Federal Rules 

and the decisions in White, Buchanan, and Budinich, which 

gave rise to them.

That the district court denied fees when ruling on 

summary judgment did not transform its initial fees ruling 

into part of the “judgment” to which a Rule 59 motion could 

apply. The earlier attorneys’ fees ruling once again “raise[d] 
22 NUTRITION DISTRIBUTION V. IRONMAG LABS

legal issues collateral to the main cause of action—issues to 

which Rule 59(e) was never intended to apply.” White, 

455 U.S. at 451.

Other circuits confronting similar situations as here—

i.e., an initial decision denying fees and a post-judgment 

motion renewing the request for fees—have likewise held 

that the time to appeal the original judgment was not based 

on the denial of the later fees motion. See Yost v. Stout, 

607 F.3d 1239, 1243 (10th Cir. 2010) (“[The] ‘Motion to 

Alter or Amend Judgment’ did not challenge the district 

court’s judgment on the merits, but only challenged the 

court’s denial of fees. We therefore conclude that the motion 

concerned only a collateral issue—attorney’s fees—and was 

properly construed as a motion brought pursuant to Rule 

54(d) rather than Rule 59(e).”); Moody, 383 F.3d at 253 

(“[R]eading (4)(a)(4) and the rule it refers to—Rule 58—

together, it is clear to us that any post-judgment motion

addressing costs or attorney’s fees must be considered a 

collateral issue even when costs or attorney’s fees are 

included in a final judgment.”). These authorities as well 

confirm that under the Federal Rules, it is the character of a 

motion for attorneys’ fees, rather than its timing, that 

prevents us from recharacterizing Nutrition Distribution’s 

motion as a Rule 59 motion. See Ray Haluch Gravel Co., 

571 U.S. at 188; Budinich, 486 U.S. at 200–03.

3

Finally, Nutrition Distribution argues that by challenging 

the district court’s finding that the case was not 

“exceptional” under the Lanham Act, its post-judgment 

attorneys’ fees motion addressed “substantive” issues 

already adjudicated in the case. This, according to Nutrition 

Distribution, brings its motion for attorneys’ fees under the 

umbrella of Rule 59.
NUTRITION DISTRIBUTION V. IRONMAG LABS 23

Nutrition Distribution’s argument on this point relies on 

Hairline Creations, Inc. v. Kefalas, 664 F.2d 652 (7th Cir. 

1981). In that case, the Seventh Circuit held that a postjudgment motions for attorneys’ fees under the Lanham Act 

should be treated as a Rule 59 motion, explaining that:

whether a trademark case is “exceptional” 

cannot be separated from whether trademark 

rights have been violated or abused. This 

identity of issues weds the determination of 

attorneys’ fees to the final judgment. It is 

because of this bond that a motion for fees 

after judgment is necessarily a Rule 59(e) 

motion to alter or amend the judgment.

Id. at 659.

The Seventh Circuit believed that because any finding 

that the case was “exceptional” would conflict with the 

district court’s previous rulings in that case, “the attorneys’ 

fees motion thus would have required reexamination of 

factual findings and legal conclusions in the judgment.” Id. 

This meant the motion was really a motion to alter or amend 

the judgment under Rule 59. Id.

Hairline is not easily reconciled with the Supreme 

Court’s later decisions in White, Buchanan, and Budinich. 

Those cases underscored the distinction between the 

judgment and an award of fees or costs under Rule 54(d). 

See White, 455 U.S. at 451–52; Buchanan, 485 U.S. at 268; 

Budinich, 486 U.S. at 200. In fact, Hairline relied on the 

First Circuit’s decision in White, which the Supreme Court 

later overruled. White, 455 U.S. at 451–52.

For these reasons, the Seventh Circuit has itself 

questioned whether Hairline survives the Supreme Court’s 
24 NUTRITION DISTRIBUTION V. IRONMAG LABS

decisions in this area, calling Hairline an “outlier” and 

distinguishing it when possible. See Bittner v. Sadoff & 

Rudoy Indus., 728 F.2d 820, 827 (7th Cir. 1984), overruled 

on other grounds by McCarter v. Ret. Plan for Dist. 

Managers of Am. Fam. Ins. Grp., 540 F.3d 649 (7th Cir. 

2008); Exch. Nat’l Bank of Chi. v. Daniels, 763 F.2d 286, 

293–94 (7th Cir.), amended on reh’g in part, 768 F.2d 140 

(7th Cir. 1985) (explaining that the circuit has “distinguished 

Hairline on razor-thin grounds,” referred to it an “outlier,” 

and “questioned whether it survived White”).

Other courts have also recognized that Hairline is 

inconsistent with later Supreme Court decisions. See SGSThomson Microelectronics, Inc. v. Int’l Rectifier Corp., 

31 F.3d 1177 (Table) (Fed. Cir. 1994) (“Hairline was 

decided by the Seventh Circuit before Budinich and White 

and hence has little precedential value.”); Specht v. Google, 

Inc., 805 F. Supp. 2d 551, 556 (N.D. Ill. 2011) (“While 

Hairline Creations may technically still be viable, it appears 

relegated to the back corner of a locked closet, with the 

Seventh Circuit disregarding it.”).

Hairline’s endeavor to identify attorneys’ fees 

provisions that touch on the “substance” or “merits” of a case 

is inconsistent with the “bright-line” rule that attorneys’ fees 

issues are not part of the judgment. Budinich, 486 U.S. 

at 202. The Supreme Court in Budinich squarely rejected an 

approach “that requires the merits or nonmerits status of 

each attorney’s fee provision to be clearly established before 

the time to appeal can be clearly known.” Id. And we cannot 

revive a framework for assessing fee requests that conflicts 

with the 1993 amendments to the Federal Rules and the 

decision in Budinich on which those amendments were 

based.
NUTRITION DISTRIBUTION V. IRONMAG LABS 25

Our decision in this regard aligns with Gnesys, Inc. v. 

Greene, 437 F.3d 482 (6th Cir. 2005), another Lanham Act 

case. In Gnesys, the notice of appeal was filed within 

30 days of the district court’s order granting attorneys’ fees 

under the Act’s “exceptional case” provision. Id. at 485. But 

the notice of appeal was filed more than 30 days after two 

other relevant orders in the case (for contempt and damages). 

Id. In holding the appeal was untimely as to the contempt 

judgment and damages award, the Sixth Circuit relied on the 

“clear message of Budinich” to “reaffirm” that “a decision 

awarding attorney’s fees is not part of the merits for purposes 

of determining if the lower court issued a ‘final decision.’” 

Id. at 487. This was the result commanded by Budinich, 

“even if the attorney’s fees” at issue “are authorized by 

statute,” as they are under the Lanham Act. Id.

Gnesys, and not Hairline, is the more faithful application 

of Supreme Court precedent in the context of notices of 

appeal involving the Lanham’s Act “exceptional case” 

provision for attorneys’ fees.4

III

Although its notice of appeal was untimely as to the 

district court’s December 13, 2018 judgment, the notice of 

appeal was timely filed within 30 days of the district court’s 

January 30, 2019 denial of attorneys’ fees. Fed. R. App. 

4 Even if the timeliness issue were not jurisdictional, IronMag did 

not waive or forfeit its timeliness objection. We would therefore still be 

required to treat the appeal as untimely. See Nutraceutical Corp. v. 

Lambert, 139 S. Ct. 710, 714 (2019) (“Courts may not disregard a 

properly raised procedural rule’s plain import any more than they may a 

statute’s.”).
26 NUTRITION DISTRIBUTION V. IRONMAG LABS

P. 4(a)(1)(A). We thus have jurisdiction to review the latter 

order.5

As noted, the Lanham Act allows an award of attorneys’ 

fees in “exceptional cases.” 15 U.S.C. § 1117(a). A denial 

of attorneys’ fees under this Act is reviewed for abuse of 

discretion. SunEarth, Inc. v. Sun Earth Solar Power Co., 

839 F.3d 1179, 1180–81 (9th Cir. 2016) (en banc) (per 

curiam). We have held that because the Lanham Act 

“permits, but does not mandate, an award of attorneys’ fees” 

in “exceptional” circumstances, “[a] party alleging that the 

district court erred by failing to award attorneys’ fees under 

§ 1117 faces an uphill battle.” Gracie v. Gracie, 217 F.3d 

1060, 1071 (9th Cir. 2000).

The district court did not abuse its discretion in denying 

fees. The district court found that Nutrition Distribution’s 

post-judgment motion for attorneys’ fees violated certain 

local rules. The district court also based its denial of fees on 

the fact that Nutrition Distribution had failed to show injury 

or damage resulting from IronMag’s advertising, or proof

that IronMag had engaged in litigation misconduct or 

violated the district court’s injunction. These facts—

combined with Nutrition Distribution’s decision to file over 

80 similar lawsuits in a three-year span—do not make this 

case “stand[] out from others” as “exceptional.” See 

SunEarth, 839 F.3d at 1180.

* * *

5 Nutrition Distribution’s unopposed motion for judicial notice is 

granted.
NUTRITION DISTRIBUTION V. IRONMAG LABS 27

We affirm the district court’s denial of attorneys’ fees. 

We otherwise dismiss the appeal for lack of jurisdiction.

DISMISSED IN PART AND AFFIRMED IN PART.