NOTE: This disposition is nonprecedential. 

## United States Court of Appeals for the Federal Circuit

2008-1047

DAVID L. HILDEBRAND, Plaintiff-Appellant,

v. STECK MANUFACTURING COMPANY, INC.,

CORNWELL QUALITY TOOLS COMPANY, MATCO TOOLS, SNAP-ON TOOLS COMPANY, TOOLS USA AND EQUIPMENT COMPANY and MAC TOOLS, Defendants-Appellees, and ATC PRODUCTS, INC., Defendant.

David L. Hildebrand , of Denver, Colorado, pro se. Charles F. Shane , Bieser, Greer & Landis, LLP, of Dayton, Ohio, for defendantsappellees. With him on the brief was David C. Greer

. Appealed from: United States Distric t Court for the District of Colorado Judge Lewis T. BabcockNOTE: This disposition is nonprecedential. 

## United States Court of Appeals for the Federal Circuit

2008-1047 DAVID L. HILDEBRAND, Plaintiff-Appellant,

v. STECK MANUFACTURING COMPANY, INC.,

CORNWELL QUALITY TOOLS COMPANY, MATCO TOOLS, SNAP-ON TOOLS COMPANY, TOOLS USA AND EQUIPMENT COMPANY and MAC TOOLS, Defendants-Appellees, and ATC PRODUCTS, INC., Defendant.

Appeal from the United States District Court fo r the District of Colorado in case no.

02-CV-01125, Judge Lewis T. Babcock.

__________ ________________ DECIDED: September 8, 2008

__________________________ Before MICHEL, Chief Judge , MAYER, Circuit Judge and STEARNS, District Judge *. PER CURIAM. David L. Hildebrand appeals orders of th e United States District Court for the

_____________________ * The Honorable Richard G. Stearns, District Ju dge, United States District Court of Massachusetts, sitting by designation.District of Colorado denying his motion for relief from judgment and his application for attorney fees and costs. See Hildebrand v. Steck Mfg. Co. , No. 02-CV-01125-LTB, 2007 U.S. Dist. LEXIS 61508 (D. Colo. Aug. 15, 2007); Hildebrand v. Steck Mfg. Co. , No. 02-CV-01125-LTB, 2007 U.S. Dist. LEXIS 58949 (D. Co lo. Aug. 10, 2007). We affirm

. On October 28, 2005, a jury found t hat Hildebrand’s U.S. Pa tent No. 5,737,981 had been infringed by products manufactured by Steck M anufacturing Company, Inc., Cornwell Quality Tools Company, Matco Tools, Snap-On Tools Company, Tools USA and Equipment Company, and Mac Tools (collect ively “Steck”). The jury determined that Steck’s infringement wa s not willful and awarded Hildeb rand $74,863 in lost profit damages. The court entered j udgment on the jury verdict on November 4, 2005, and ordered that the parties proc eed according to District of Colorado Local Rule 54.1 regarding the taxation of costs and that Hildebrand subm it, within 30 days, an application for attorney fees pursuant to District of Colorado Local Rule 54.3. In December 2005, Hild ebrand and Steck cross-app ealed to this court. 1 We affirmed, holding that the jury’s finding of non-willful infringem ent was supported by substantial evidence and that the dam ages award was adequate to compensate Hildebrand for any harm caused by the infringement. See Hildebrand v. Steck Mfg. Co., Inc. , 232 Fed. Appx. 985 (Fed. Cir. 2007) (hereinafter “ Hildebrand II ”). Subsequently,

1 This was the second occasion that Hildebrand and Steck had come before this court. When the parties were here the firs t time, the issue wa s whether the United States District Court for the Southern District of Ohio had jurisdiction over the dispute. See Hildebrand v. Steck Mfg. Co. , 279 F.3d 1351 (Fed. Cir. 2002) (hereinafter

“ Hildebrand I ”). We concluded that the Ohio distri ct court had no jurisdiction to decide the case because Hildebrand was not an Ohio resident and his contacts with Ohio did “not create a constitutionally adequat e basis for personal jurisdiction.” Id. at 1356.

2008-1047 2the district court issued orders that denied Hildebrand’s motion for relief from judgment under Fed. R. Civ. P. 60(b) and his application for attorney fees and costs. Hildebrand then sought reconsideration of these orders, but his reques t for reconsideration was denied. Hildebrand timely appealed to this cour t. We have jurisdicti on under 28 U.S.C. § 1295(a)(1). Because the issue of whether to award cost s to a prevailing party is a procedural matter not unique to patent law, we apply the law of the appropriate r egional circuit. Kohus v. Cosco, Inc. , 282 F.3d 1355, 1357 (Fed. Cir. 2002). In the Tenth Circuit, an order denying costs is reviewed for an abuse of discretion. Munoz v. St. Mary-Corwin Hosp. , 221 F.3d 1160, 1170 (10th Cir. 2000); Klein v. Grynberg , 44 F.3d 1497, 1506 (10th Cir. 1995). The district court did not abuse its discret ion in denying Hildebrand his costs. The court’s November 4, 2005 judgment clear ly and unambiguously specified that to recover costs Hildebrand had to comply with District of Colorado Local Rule 54.1. That rule requires the party seeking costs to file a bill of costs within ten days after the entry of judgment or final order. 2 Since Hildebrand filed his appl ication for costs more than a month after the entry of judgment in his favor, the district court properly concluded that his application was untimely. See Woods Constr. Co. v. Atlas Chem. Indus., Inc. , 337

2 In pertinent part, Local Rule 54.1 provides: Each judgment or final order shal l indicate which party or parties are entitled to costs. A bill of costs must be filed on the form provided by the court within ten days after entry of the judgment or final order. D.C. Colo. L. R. 54.1 (emphasis added).

2008-1047 3F.2d 888, 891 (10th Cir. 1964) (“A case c annot remain open for indeterminate or unspecified periods awaiting a party's action to request the assessment of costs.”). On appeal, Hildebrand argues that the district court extended the filing deadline for his bill of costs. Specifically, he points to an October 26, 2005 statement from District Court Judge Alan B. Johnson informing Hildebrand that if he prevailed, he would be given “30 days to file [his] Bill of Costs with the clerk of court. ” Even accepting that Hildebrand was given 30 days to file for costs, however, his December 5, 2005 application still would have been untimely since it was filed more than 30 days after the October 28, 2005 jury verdict in his favor. Th e district court, theref ore, did not abuse its discretion in denying Hildebrand’s application for costs. Nor did the district court err in determi ning that Hildebrand was not entitled to an award of attorney fees. See Digeo, Inc. v. Audible, Inc. , 505 F.3d 1362, 1367 (Fed. Cir. 2007) (Whether a case is exce ptional for purposes of awarding attorney fees is “a factual determination reviewed for clear error.”) . A district court has authority to award reasonable attorney fees to a prevai ling party in “exceptional cases.” 35 U.S.C. § 285. “Exceptional cases usually feature some material, inappropriate conduct related to the matter in litigation, such as willful infri ngement, fraud or inequitable conduct in procuring the patent, misconduct dur ing litigation, vexatious or unjus tified litigation, conduct that violates Federal Rule of Civil Procedure 11 , or like infractions.” Serio-US Indus., Inc. v. Plastic Recovery Techs. Corp. , 459 F.3d 1311, 1321-22 (Fed. Ci r. 2006). Here, the jury found that that Steck’ s infringement was not willful, a nd this finding was affirmed on appeal. See Hildebrand II , 232 Fed. Appx. at 986. While Hildebrand vigorously asserts that Steck engaged in litig ation misconduct, he fails to establis h clear error in the district

2008-1047 4court’s conclusion to the contrary. Wit hout a doubt, the lengthy dispute between Steck and Hildebrand has been stri dent, resulting in significant costs to both sides. After reviewing the record, however, we see no erro r in the district court’s conclusion that Steck’s claims and defenses were not frivol ous and that the award of attorney fees under 35 U.S.C. § 285 wa s therefore unwarranted. The fact that Steck ultimately decided not to pursue some of the counte rclaims it originally asserted does not establish that those counterclaims were baseless or that Steck asserted them in bad faith. Hildebrand argues that the fact that this court, in 2002, rejected Steck’s contentions that the district c ourt in Ohio had author ity to exercise jurisdiction over the dispute, see Hildebrand I , 279 F.3d at 1355-56, establishes that Steck’s arguments regarding jurisdiction were “frivolous and vexati ous as a matter of law.” We disagree. Although this court ultimately concluded that the Ohio district court was without authority to exercise jurisdiction, Steck’s arguments in support of jurisdiction had a reasonable basis and there is nothing to indicate t hat they were asserted in bad faith. Finally, we turn to the district court’ s order denying Hildebrand’s motion for relief from judgment. Motions seeking relief from judgment under Fed. R. Civ. P. 60(b)(2) and 60(b)(3) must “be made within a reasonable time ,” but never “more than a year after the entry of the judgment.” Fed. R. Civ. P. 60(c) 3 ; Tool Box, Inc. v. Ogden City Corp. , 419

3 In pertinent part, Rule 60 provides: (b) Grounds for Relief from a Final Judgment, Order, or Proceeding. On motion and just te rms, the court may relieve a party or its legal representative from a final judgment, order, or proceeding for the following reasons:

2008-1047 5F.3d 1084, 1088-89 ( 10th Cir. 2005). Hildebrand has not established that it was reasonable for him to wait until November 6, 2006 to file his motion or that circumstances beyond his control prevented him from filing at an earlier time. Cummings v. Gen. Motors Corp. , 365 F.3d 944, 954 (10th Cir. 2004) (noting that Rule 60(b) motions must be filed within a reasonab le time, and not merely within one year of entry of judgment)

. Furthermore, Hildebrand fails to appreciate that a motion seeking relief from judgment under Rule 60(b) is “clearly not a substitu te for appeal” and must involve “matters outside the issues raised and cons idered by the court in reaching its judgment.” Brown v. McCormick , 608 F.2d 410, 413 (10th Cir. 1979) . While Hildebrand alleges that Steck engaged in fraud before the United St ates Patent and Trademark Office and the district court, and t hat its brief before this court contains “lies,” he fails to produce the clear and convincing evidence nece ssary to substantiate his allegations.

(1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduc t by an opposing party . . . . (c) Timing and Effect of the Motion. (1) Timing. A motion under Rule 60(b) must be made within a reasonable time—and for reasons (1 ), (2), and (3) no more than a year after the entry of the judgment or order or the date of the proceeding. Fed. R. Civ. P. 60 (emphasis added).

2008-1047 62008-1047 7 See Zurich N. Am. v. Matrix Serv., Inc. , 426 F.3d 1281, 1290 (10th Cir. 2005) (A party seeking to rely on Rule 60(b)(3) must produc e clear and convincing proof of fraud.). Moreover, although Hildebrand poin ts to what he believes are deficiencies in the jury verdict, Rule 60(b) is not designed to allo w a litigant to rehash arguments which have previously been consi dered and rejected. See Van Skiver v. United States , 952 F.2d 1241, 1243 (10th Cir. 1991) (“[R]evisiting the issues al ready addressed is not the purpose of a motion to reconsider.” (quotations and citations omitted)). “Relief under Rule 60(b) is extraordinary and may only be granted in exceptional circumstances.” Bud Brooks Trucking, Inc. v. Bill Hodges Trucking Co. , 909 F.2d 1437, 14 40 (10th Cir. 1990) . No such exceptional circ umstances are present here.