## F I L E D United States Court of Appeals Tenth Circuit 

### APR 4 2000 

### PATRICK FISHER Clerk PUBLISH
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

THOMAS R. HUTCHINSON,

Plaintiff-Appellant,

v. MARY JOAN PFEIL; ART SERVICES INTERNATIONAL, INC.; WILLIAM H. GERDTS; DAVID BERNARD DEARINGER; SOUTH CHINA PRINTING COMPANY; RICHARD B. PFEIL; SONA JOHNSTON,

Defendants-Appellees. No. 98-5260

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OKLAHOMA

(D.C. No. 94-CV-711-E)

Submitted on the briefs: Glenn R. Beustring, Joan Godlove, and Todd Alexande r, Tulsa, Oklahoma, for Plaintiffs-Appellants. Lewis N. Carter of Doerner, Saunders, Daniel & Ande rson, L.L.P., Tulsa, Oklahoma, for Defendants-Appellees.

Before EBEL , LUCERO , and MURPHY , Circuit Judges.1 After examining the briefs and appellate record, th is panel has determined

unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). T he case is therefore ordered submitted on the briefs without o ral argument. Mr. Hutchinson insists that we should not consider appellees’ answer brief, because it was filed six days after the deadline se t by Fed. R. App. P. 31(a)(1). It is, however, always within this court’s discretion to permit the late filing of a brief for good cause. See Fed. R. App. P. 26(b). The exercise of that discr etion is especially appropriate here, as there is no suggestion of prejudice. See Hammett v. Seastrunk , 365 F.2d 232, 233 n.2 (4th Cir. 1966). Mr. Hutch inson himself tested the forbearance of this court by fil ing a deficient opening brief four days after a twice-extended deadline. This court t hus finds good cause to allow the filing of appellees’ answer brief.

-2- MURPHY , Circuit Judge.

Plaintiff Thomas R. Hutchinson appeals 1 from the dismissal of his suit under § 43(a) of the Lanham Act, 15 U.S.C. § 1125(a ), for lack of standing. He also challenges certain procedural rulings issued i n the course of the proceedings. Joining in his notice of appeal are Hope Cobb, whos e motion to intervene in district court was denied, and several individuals whom Mr. Hutchinson proposed to add as plaintiffs when he unsuccessfully moved t o amend his pleadings. For reasons stated below, we dismiss the appeals of Ms. Cobb and those proposed plaintiffs, deny their joint motion to intervene in the Hutchinson appeal, and affirm all of the rulings challenged by Mr. Hutchin son.-3- Cobb’s Appeal from Denial of Intervention The district court denied Hope Cobb’s motion to int ervene on February 27, 1998. She did not attempt to appeal that order unt il she joined Mr. Hutchinson’s notice of appeal from the final judgment entered ov er eight months later. “An order denying intervention is final and subjectto immediate review if it prevents the applicant from becoming a party to an action.” Coalition of Ariz./N.M. Counties for Stable Econ. Growth v. Department of the Interior , 100 F.3d 837, 839 (10th Cir. 1996). This is “because d enial of intervention precludes the proposed intervenor’s ability to appeal the lat er judgment (and at that time to challenge the earlier denial of intervention).” B.H. ex rel. Pierce v. Murphy , 984 F.2d 196, 199 (7th Cir. 1993). Thus, an appeal from the denial of intervention “cannot be kept in reserve; it must be taken within thirty days of the entry of the order, or not at all.” Credit Francais Int’l, S.A. v. Bio-Vita, Ltd. , 78 F.3d 698, 703 (1st Cir. 1996); see Hunter v. Department of the Air Force Agency , 846 F.2d 1314, 1316-17 (11th Cir. 1988) (distinguishing fina l order denying intervention from appealable interlocutory orders for which imme diate review in lieu of appeal from final judgment is optional); see, e.g. , B.H. ex rel. Pierce , 984 F.2d at 199; United States EPA v. City of Green Forest , 921 F.2d 1394, 1401 (8th Cir. 1990); Marks v. U.S. West Direct , No. 98-1043, 1998 WL 856139, at **1 (10th Cir. Dec. 11, 1998) (unpublished), cert. denied , 119 S. Ct. 1757 (1999) . Ms. Cobb’s-4-

appeal is therefore untimely and must be dismissed. See Budinich v. Becton Dickinson & Co. , 486 U.S. 196, 203 (1988) (“the taking of an appea l within the prescribed time is mandatory and jurisdictional”).

Proposed Plaintiffs’ Appeal After the case had been pending in district court f or some time, Mr. Hutchinson filed a motion to amend his pleading s to, among other things, add several new plaintiffs under Fed. R. Civ. P. 21. T he proposed plaintiffs did not themselves invoke the power of the court by, for ex ample, moving to intervene under Fed. R. Civ. P. 24. Thus, they are not parti es to the action nor have they affirmatively sought and been denied such status. “A nonparty does not have standing to appeal in the absence of most extraordinary circumstances.” Coffey v. Whirlpool Corp. , 591 F.2d 618, 619 (10th Cir. 1979) (insurer lacked standing to appeal where district court denied insured’s motion to vacate dismissal to permit subs titution of insurer as plaintiff). Such circumstances are clearly not present here. I ndeed, two distinct considerations undercut the proposed plaintiffs’ ap pellate standing. The first is their indirect, passive relationship to the proceed ings conducted in district court. To paraphrase an apt, albeit non-precedential, stat ement of the Second Circuit, expressly relying on our Coffey decision in a similar case: the plaintiff--not th e proposed plaintiffs--moved to amend his complaint, and he--not they--is the-5-

proper party to appeal the denial of that motion. See Kahn v. Chase Manhattan Bank, N.A. , Nos. 97-7213, 97-7233, 1997 WL 734139, at **2 (2dCir. Nov. 25, 1997) (unpublished). The second consideration relates to the proposed plaintiffs’ lack of a substantive interest in the outcome. Bec ause the action was dismissed based on Mr. Hutchinson’s lack of standing and thus without any ruling on the merits, the proposed plaintiffs are in the same pos ition as the non-party denied appellate standing in Coffey : “no requirement is imposed upon [the proposed plaintiffs] to do anything” to preserve their claim s; the dismissal by the court was without prejudice to their interests. Coffey , 591 F.2d at 619.

Appellate Intervention Ms. Cobb and the proposed plaintiffs also moved to intervene on appeal, in case their joinder in the notice of appeal filed by Mr. Hutchinson was ineffective. We deny the motion for reasons peculiar to each mov ant. As for Ms. Cobb, the motion is, in effect, an attempt to obtain appellat e review lost by her failure to timely appeal the denial of her motion to intervene in district court. Appellate intervention is not a means to escape the consequen ces of noncompliance with traditional rules of appellate jurisdiction and procedure. See, e.g. , United States v. Dorfman , 690 F.2d 1217, 1223 (7th Cir. 1982) (defendants w ho prematurely appealed suppression order “cannot circumvent the rule against . . . interlocutory appeal” by intervening in third-party appeal); United States v. Ahmad , 499 F.2d-6-

851, 854 (3d Cir. 1974) (party who failed to file n otice of appeal “cannot circumvent the requirements for taking an appeal inhis own right by a later petition for intervention” in another’s appeal). The proposed plaintiffs lacked standing to obtain d irect appellate review and, thus, do not seek intervention to excuse a fai lure to perfect a proper appeal. Their request, however, is undercut by a different omission. As noted above, they never moved to intervene in the district court. “‘ A court of appeals may, but only in an exceptional case for imperative reasons, perm it intervention where none was sought in the district court.’” Hall v. Holder , 117 F.3d 1222, 1231 (11th Cir. 1997) (quoting McKenna v. Pan Am. Petroleum Corp. , 303 F.2d 778, 779 (5th Cir. 1962)); see Bates v. Jones , 127 F.3d 870, 873 (9th Cir. 1997); Amalgamated Transit Union Int’l v. Donovan , 771 F.2d 1551, 1552 (D.C. Cir. 1985). Nothing stated in their conclusory motion or inherent in th e surrounding circumstances suggests the requisite justification for the propos ed plaintiffs’ intervention on appeal.

Hutchinson’s Standing to Sue On summary judgment, the district court held that M r. Hutchinson could not satisfy the requirements for standing under the Lanham Act set out by this court in Stanfield v. Osborne Industries, Inc. , 52 F.3d 867 (10th Cir. 1995). On de novo review, see Wilson v. Glenwood Intermountain Properties, Inc. , 98 F.3d2 After entry of judgment, the Pfeils sold the E.M.J. Betty . The sale does not

affect our analysis and, for simplicity, we continu e to refer to it as the Pfeils’ painting. -7- 590, 593 (10th Cir. 1996), we reach the same conclu sion. Further, we hold that the standing deficiencies implicate the limitations of Article III of the Constitution.

Plaintiffs bear the burden of proving standing withthe manner and degree of evidence required at the particular s tage of the litigation. In response to a summary judgment moti on, the nonmovant must present specific facts by affidavit or other evidence, which will be taken as true for purposes of the mot ion. Summary judgment is then proper if there is no genuine issu e of material fact so that the moving party is entitled to judgment as a matter of law. Gilbert v. Shalala , 45 F.3d 1391, 1394 (10th Cir. 1995) (citations omitted); see Cache Valley Elec. Co. v. State of Utah Dep’t of Transp. , 149 F.3d 1119, 1124 (10th Cir. 1998) (“[a]t summary judgment, it is a p laintiff’s burden to adduce evidence sufficient to establish necessary jurisdic tional facts” and, thus, plaintiff “may not establish standing by merely hypothesizing”), cert. denied , 119 S. Ct. 1333 (1999). Mr. Hutchinson is a descendant of nineteenth century American Impressionist artist Theodore Robinson, who painteda work owned by defendants Richard and Mary Joan Pfeil, entitled E.M.J. Betty

. 2 Mr. Hutchinson contends that the Pfeils’ painting is actually an unfinishedversion with a forged signature, and that he has an ownership interest in a finished “real” E.M.J. Betty , allegedly-8-

stolen after the artist died in 1896. The thrust o f Mr. Hutchinson’s Lanham Act claim is that by representing their painting as a f inished version of the Robinson work in an exhibition catalogue, the Pfeils have “u se[d] in commerce [a] . . . false designation of origin, false or misleading descript ion of fact, or false or misleading representation of fact,” in violation of 15 U.S.C. § 1125(a)(1). The other defendants are the corporations which produce d and printed the catalogue, and the art historians whose professional work was used for the E.M.J. Betty annotation therein. “There are two distinct bases for liability under s ection 1125: (1) false representation in advertising concerning the qualit ies of goods (false advertising claims); and (2) false representations concerning the origin or endorsement of goods (false association or product infringement claims).” Stanfield , 52 F.3d at 873. Each requires an injury sufficient to confer standing, with the type of harm dependant on the focus of the claim. For a false a dvertising claim designed to prevent unfair competition, the plaintiff “must be a competitor of the defendant and allege a competitive injury;” for a false association claim designed to prevent product misidentification, the plaintiff must alleg e a “reasonable interest to be protected” in the subject goods or services, or in the misused mark causing a misidentification. Id.3 The district court refers here to “plaintiffs,” as this action was initially

prosecuted jointly by Mr. Hutchinson and his wife, who has since died. -9- The district court’s standing analysis rested on “the undisputed fact that Plaintiffs [3] . . . do not have the ‘real E.M.J. Betty,’ have ne ver seen the ‘real E.M.J. Betty’ or a copy of the ‘real E.M.J. Betty’ and do not know who is in possession of the ‘real E.M.J. Betty.’” Appellant’ s Appendix Vol. II (App. II) at 450. In fact, “they do not know that the ‘real E.M .J. Betty’ exists at this time.” Id. at 451. The court concluded that even if Mr. Hutc hinson could establish, in some abstract sense, an ownership interest in the posited “real” E.M.J. Betty , the compounded uncertainties inherent in any concrete r ealization of that interest rendered the potential for harmful competition fromdefendants’ rival painting too speculative to confer standing for a false advertis ing claim. We agree. In the commercial language of PDK Lab., Inc. v. Friedlander , 103 F.3d 1105 (2d Cir. 1997), Mr. Hutchinson’s “hopes of eventually obtain ing . . . a [competitive] product are too remote at this stage to confer stan ding to challenge [the Pfeils’] advertising.” Id. at 1112 (plaintiff’s proposed rival product, undev eloped and contingent upon future FDA approval, held insuffici ent to support Lanham Act standing). Further, his inability to compete with the Pfeils’ painting is not itself a function of the alleged misconduct. Cf. Stanfield , 52 F.3d at 873 (plaintiff’s unrealized plans to compete with defendant held ins ufficient to confer standing4 Although the broadly framed pleadings potentially e ncompass both types of

Lanham Act violations, the district court refused t o consider the false association claim because Mr. Hutchinson did not refer to it until late in the proceedings. Hence, the court did not address the standing issue on that claim. Given the fundamental nature of the issue, we elect to resolv e the entire case on standing grounds and therefore need not delve into the parti es’ dispute over the timeliness of Mr. Hutchinson’s specific assertion of the false association claim. Cf. Steel Co. v. Citizens for a Better Env’t , 523 U.S. 83, 88-102 (1998) (discussing analytical priority of standing questions).

5 Cases holding that an artist incurs injury when his name or work is misused are inapposite. Cf., e.g. , King v. Innovation Books , 976 F.2d 824, 829, 831 (2d Cir. 1992); Wildlife Internationale, Inc. v. Clements , 591 F. Supp. 1542, 1548 (S.D. Ohio 1984). Neither Mr. Hutchinson’s name no r any work of his has been misused. -10- where his entrance into market was “in no way depen dent on the availability of [the] trademark” allegedly misused by defendant). The same uncertainties which undercut Mr. Hutchinso n’s false advertising claim also undermine his false association claim. 4 With no present prospect of locating an extant finished work with which the Pfe ils’ painting has allegedly been misidentified, “he has no reasonable interest to be protected under the Lanham Act,” and “[w]ithout a protectible interest, [he] lacks standing to bring this [false association] claim under section 1125.” Id. (noting “mere potential of commercial interest in one’s family name is insuffi cient to confer standing” for false association claim). 5-11-

Indeed, the utterly speculative character of Mr. Hu tchinson’s interest and consequent injury not only undercuts statutory stan ding under the Lanham Act, but constitutes a fundamental Article III deficienc y as well.

The irreducible constitutional minimum of standing contains three requirements. First and foremost, there mustbe alleged (and ultimately proved) an injury in fact--a harm suffer ed by the plaintiff that is concrete and actual or imminent, not conjec tural or hypothetical. Second, there must be causation--a f airly traceable connection between the plaintiff’s injury and the c omplained-of conduct. And third, there must be redressability-- a likelihood that the requested relief will redress the alleged injury. This triad of injury in fact, causation, and redressability const itutes the core of Article III’s case-or-controversy requirement, and the party invoking federal jurisdiction bears the burden of establishi ng its existence. Steel Co. , 523 U.S. at 102-04 (footnote, citations, and quot ations omitted). Mr. Hutchinson was unable to show that the alleged “real” E.M.J. Betty exists, let alone that he will likely locate the pa inting and obtain it from any current possessor. His claim of injury rests on “c onjecture based on speculation that is bottomed on surmise,” and cannot support fe deral jurisdiction under Article III. Utah v. Babbitt , 137 F.3d 1193, 1210 n. 25 (10th Cir. 1998) (quotation omitted) (future injury, contingent on m atters “not presently known,” too speculative for Article III standing); see United Transp. Union v. ICC , 891 F.2d 908, 912 (D.C. Cir. 1989) (“When considering any chain of allegations for standing purposes, we may reject as overly speculat ive . . . predictions of future events . . . .”); see also Sea Shore Corp. v. Sullivan , 158 F.3d 51, 56 (1st Cir.-12-

1998) (“Outside the sphere of economic theory, pred icting future injury and the behavior of third parties is usually suspect.”). F or essentially the same reasons, a remedial order curtailing the Pfeils’ use of the E.M.J. Betty name would not at present--or likely in future--inure to Mr. Hutchins on’s benefit, so his action fails under the redressibility prong as well. See Wyoming ex rel. Sullivan v. Lujan , 969 F.2d 877, 882 (10th Cir. 1992) (plaintiff lacks standing where possible benefit from favorable ruling “founders on too many conting encies”). Finally, Mr. Hutchinson contends the absence of dem onstrable injury or likely threat of harm is not preclusive with respec t to injunctive relief, when the objectionable representations are not just misleadi ng but patently false. In support of this argument, he relies on two lines of authority, neither of which is apposite here. First, he cites several cases holdi ng that the literal falsity of the defendant’s statements obviates the need to presentproof regarding likely deception or confusion of the consumer. This princ iple, dubbed the “presumption of deception” by one court, relates to the merits o f the case, not the standing of the plaintiff to seek redress for such statements. See Porous Media Corp. v. Pall Corp. , 110 F.3d 1329, 1333 (8th Cir. 1997) (noting “pres umption of deception” allows factfinder “to assume actual deception, the second element of the cause of action”); see also Mylan Lab., Inc. v. Matkari , 7 F.3d 1130, 1138 (4th Cir. 1993) (holding representation “false on its face” or “lik ely to mislead” is “essential-13-

element” of Lanham Act violation); Castrol, Inc. v. Pennzoil Co. , 987 F.2d 939, 943 (3d Cir. 1993) (explaining literal falsity and likely confusion “are two different theories of recovery” under Lanham Act). Thus, the cases do not invoke this “presumption of deception” to resolve standing issues, but instead to assess the merits of Lanham Act claims, usually asserted b y manufacturers of competing products whose obvious standing is not in question. The second line of authority involves a “presumptio n of causation and injury” that allows a factfinder to presume injury caused by representations which are literally false or demonstrably deceptive. See Porous , 110 F.3d at 1333; see also McNeil-P.C.C., Inc. v. Bristol-Myers Squibb Co. , 938 F.2d 1544, 1549 (2d Cir. 1991); Abbott Lab. v. Mead Johnson & Co. , 971 F.2d 6, 16, 18 (7th Cir. 1992). As these cases reflect, this presumption is likewise invoked primarily to resolve the merits of Lanham Act claims--to establi sh injury as an essential element of the claim, or irreparable harm as a cond ition for injunctive relief--when the plaintiff, typically a commercial competitor of the defendant, clearly has standing. Such cases merely support th e proposition that when a plaintiff with an otherwise sufficient interest to have standing shows that its interest has been subjected to patently false repre sentations, harm sufficient to sustain a claim and justify equitable relief may be presumed.-14-

We recognize that the merits issue to which this se cond presumption relates does overlap conceptually with the injury prerequis ite for standing, and the presumption has been discussed, albeit rarely and u nfavorably, in that connection.
See Ortho Pharm. Corp. v. Cosprophar, Inc. , 32 F.3d 690, 694-95 (2d Cir. 1994) (considering but rejecting presumption in affirming dismissal of Lanham Act claim for lack of standing); see also PDK Lab. , 103 F.3d at 1112 (citing Ortho as “applying the general rule . . . against making pre sumptions of injury and causation to Lanham Act standing question” (quotati on omitted)). In any event, the presumption is properly limited to circumstance s in which injury would indeed likely flow from the defendant’s objectionable stat ements, i.e., when the defendant has explicitly compared its product to th e plaintiff’s or the plaintiff is an obvious competitor with respect to the misrepresented product. See Ortho , 32 F.3d at 694; Porous , 110 F.3d at 1335. Clearly neither of these condi tions exists here. Mr. Hutchinson’s standing is deficient precisely because he has no product in competition with the Pfeils’ painting. A demonstration that the Pfeils’ representations we re patently false would not avail Mr. Hutchinson in this case. It might as sist his Lanham Act claims on the merits, by obviating the need for proof of cons umer confusion. Because he lacks a cognizable interest affected by such confus ion, however, he still lacks standing to assert such claims in federal court.6 We note in this regard the speciousness of Mr. Hutc hinson’s procedural

objection that the district court “[mis]led counsel to believe it would defer ruling on [summary judgment] until after a scheduling conf erence was conducted and a scheduling order entered,” lulling him into believi ng amendment could safely be postponed. Opening Brief at 39. The court, in fac t, conducted the conference, set summary judgment for a subsequent hearing, and expl ained that further scheduling would proceed only if needed. See docket entry for July 21, 1995. -15- Denial of Amendment Mr. Hutchinson contends the district court abused i ts discretion when it refused to permit him to amend his pleadings to adda state tort law claim for negligent misrepresentation. The district court ci ted delay and the inapt procedural posture of the case, after summary judgm ent had already been granted on standing, as the grounds for denying leave to amend. See App. II at 521-22; App. III at 845. We do not question the soundness of this exercise of discretion, 6 but we deem it appropriate to affirm the denial of the attempted amendment on the more fundamental ground of standing. “Standing [under Article III] is, of course, a threshold issue in every case before a federal court,” and diversity claims are no exception. Wolfe v. Gilmour Mfg. Co. , 143 F.3d 1122, 1126 (8th Cir. 1998) (emphasis added); see also Wheeler v. Travelers Ins. Co. , 22 F.3d 534, 537 (3d Cir. 1994). Thus, the jurisdictional deficiency discussed above in connec tion with the Lanham Act would be equally fatal to the proposed negligent mi srepresentation claim, which rests on the same speculative injury. Because Mr. Hutchinson lacked standing to7 In the present civil context, Fed. R. Civ. P. 83(b) is to the same effect. -16- assert this new claim and does not argue that addin g the “proposed plaintiffs” cured this deficiency, his futile amendment was pro perly rejected in any event.
See TV Communications Network, Inc. v. Turner Network Television, Inc. , 964 F.2d 1022, 1028 (10th Cir. 1992) (“Where a complaint, as amended, would be subject to dismissal, leave to amend need not be gr anted.”) (quotation omitted);
Manson v. Stacescu , 11 F.3d 1127, 1133 (2d Cir. 1993) (rejecting as f utile proposed amendment of claim plaintiffs lacked stand ing to assert).

Case Reassignment Mr. Hutchinson argues that the district judge who e ntered judgment in this case lacked authority to hear and decide it, becaus e it had been transferred unilaterally from another judge of the district in a manner not expressly authorized by the local rules, specifically N.D. Ok la. L. R. 40.1 (Assignment of Cases). This court recently rejected essentially t he same objection in a criminal case, explaining:

In light of this [judicial] discretion in managing court business [derived from 28 U.S.C. § 137 and Fed. R. Crim. P. 57(b) 7 ], we agree with the Fifth Circuit that: “[d]istrict judges may by rule, order or consent transfer cases between themselves. . . . Each jud ge of a multi-district court has the same power and authori ty as each other judge. . . . Moreover, the District Judges have th e inherent power to transfer cases from one another for the expeditious administration of justice.” United States v. Martinez , 686 F.2d 334, 338 (5th Cir.-17-

1982) (quoting United States v. Stone , 411 F.2d 597, 598 (5th Cir. 1969)) (emphasis added). United States v. Diaz , 189 F.3d 1239, 1244 (10th Cir. 1999). Further, n othing in Local Rule 40.1, which deals with the initial assig nment of cases to judges in the district, proscribes or limits the traditional disc retionary power of intra-district transfer recognized in Diaz . Finally, not only was the reassignment within th e discretion of the district court, Mr. Hutchinson ha s failed to allege that the reassignment resulted in any constitutionally cognizable prejudice. See id. at 1244-45.

Protective Order Finally, Mr. Hutchinson challenges the district cou rt’s refusal to modify or vacate a protective order entered by the magistrate judge covering testimony and materials obtained through discovery in connection with this and related litigation. Mr. Hutchinson has raised this same ob jection in more than one appeal and, recently, another panel of this court expressl y affirmed the challenged order.
See Hutchinson v. Pfeil , No. 98-5043, 1999 WL 1015557, at **5-**7 (10th Ci r. Nov. 9, 1999). Although that decision was not publ ished, it is nevertheless “binding . . . under the doctrines of res judicata, and collateral estoppel.” 10th Cir. R. 36.3(A); see Miller v. American Trust Ins. Co. , 931 F.2d 703, 705 (10th Cir.1991) (quoting prior version of Rule 36.3).-18- Motions There are two contested procedural matters on appea l yet to be resolved. First, defendants have submitted as supplemental authority the Seventh Circuit’s recent decision in Hutchinson v. Spanierman , 190 F.3d 815 (7th Cir. 1999), holding Mr. Hutchinson barred by laches from claimi ng an interest in a collection of Thomas Robinson paintings long held by other des cendants of the artist. Mr. Hutchinson has moved to strike the supplemental authority under Fed. R. App. P. 28(j), as irrelevant and argumentative. He has als o submitted a request that we take judicial notice of the petition for rehearing now pending in the case. Neither party indicates whether an E.M.J. Betty , finished or unfinished, was ever included in the collection addressed by the Spanierman decision. In any event, because our analysis of Mr. Hutchinson’s standing does not depe nd on legal ownership issues but, rather, the practical unavailability of the painting, Spanierman is immaterial to our holding. The motion to strike and request t o take judicial notice are therefore denied as moot. Second, as noted above, the Pfeils sold their E.M.J. Betty , and now Mr. Hutchinson has submitted a request that this court conduct proceedings to determine the identity of the undisclosed purchaser s, so that he can add them as appellees. Mr. Hutchinson’s lack of standing, whic h is dispositive of this case,-19-

does not turn on the identity of the present owners of the Pfeils’ E.M.J. Betty . His request is therefore denied.

Conclusion The appeal of intervenor-appellant Hope Cobb is DIS MISSED as untimely. The appeal of the proposed plaintiffs-appellants is DISMISSED for lack of appellate standing. With regard to the appeal of p laintiff-appellant Thomas R. Hutchinson, the judgment of the United States Distr ict Court for the Northern District of Oklahoma is AFFIRMED in all respects. For reasons explained above, all pending motions are DENIED.