FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
MASSACHUSETTS Hon. Michael A. Ponsor, U.S. District Judge
William E. Reynolds, with whom Nixon Peabody LLP was on
brief, for appellee.
Griffith, with whom The Griffith Firm, Jesse Belcher-Timme,
and Doherty, Wallace, Pillsbury & Murphy, P.C. were on
brief, for appellants.
Lynch, Stahl, and Barron, Circuit Judges.
Defendants' fifth appeal in a case that stems from
Plaintiff's unsuccessful attempts to enforce a $23
million judgment against Defendants, which it obtained in New
York in 2012. See AngioDynamics, Inc. v. Biolitec
AG, 711 F.3d 248 (1st Cir. 2013) (Biolitec I)
(per curiam); AngioDynamics, Inc. v. Biolitec AG,
780 F.3d 420 (1st Cir. 2015) (Biolitec II);
AngioDynamics, Inc. v. Biolitec AG, 780 F.3d 429
(1st Cir. 2015) (Biolitec III); AngioDynamics,
Inc. v. Biolitec AG, 823 F.3d 1 (1st Cir. 2016)
(Biolitec IV). Over the course of this litigation,
Defendants have repeatedly refused to comply with court
orders. See Biolitec IV, 823 F.3d at 10.
Biolitec I, we affirmed the district court's
preliminary injunction barring Biolitec AG ("BAG")
from merging with its Austrian subsidiary. 711 F.3d at 250,
252. But, in disregard of the district court injunction,
Defendants completed the enjoined merger. See id. at
250 n.1. In Biolitec II, we affirmed the district
court's imposition of contempt sanctions --including
escalating fines against Defendants and a warrant for the
arrest of Wolfgang Neuberger, the CEO of Biolitec, Inc.
--which would cease once Defendants unwound the enjoined
merger. 780 F.3d at 423. We remanded solely to direct the
district court to cap the fines at a fixed amount.
Id. at 428. In Biolitec III, we affirmed
the district court's decision to sanction Defendants for
discovery violations by entering a default judgment against
Defendants and awarding damages of approximately $75 million.
780 F.3d at 436-37. Defendants unsuccessfully petitioned for
certiorari in both Biolitec II and Biolitec
III. See Biolitec AG v. AngioDynamics, Inc.,
136 S.Ct. 535 (2015).
recently, in Biolitec IV, we affirmed the district
court's revised contempt order, which capped
Defendants' total contempt liability at $70 million. 823
F.3d at 4, 10. We rejected Defendants' argument that the
preliminary injunction had expired by its terms when the
district court entered final judgment in favor of Plaintiff
on March 18, 2014, and so the district court was
"without authority" to enter its revised contempt
order on April 24, 2015. Id. In rejecting this
argument, we noted that Defendants failed to raise it in
their prior appeals, id., and that
"Defendants' window of opportunity" to do so
had "closed with our twin decisions in Biolitec
II and Biolitec III, " id. at 5.
This court rejected Defendants' subsequent petition for
rehearing and rehearing en banc. Defendants' petition for
certiorari was denied by the Supreme Court. See Biolitec
AG v. AngioDynamics, Inc., 137 S.Ct. 631 (2017).
our decision in Biolitec IV, Defendants filed what
purported to be a Rule 60 motion in the district court,
contending that the contempt sanctions "should be
vacated because the order for which they were intended to
coerce compliance" -- the preliminary injunction -- had
"expired by its own terms." The district court
denied the motion on the grounds that Defendants had waived
the argument, that this court had rejected the same argument
in Biolitec IV, that Defendants' position was
"contrary to the civil rules, " and that
Defendants' claim "lack[ed] substantive merit."
now appeal the district court's denial of their Rule 60
motion. They argue that their Rule 60 argument is not
precluded by the law of the case doctrine or waiver because,
they say, it raises distinct issues from those held to have
been waived in Biolitec IV. They separately argue
that "changing circumstances" make prospective
application of the contempt orders inequitable; that
continued enforcement of the contempt order amounts to the
unconstitutional imposition of punitive contempt sanctions;
and that our holding in Biolitec IV that they had
waived the injunction-expiration argument was clearly
erroneous. Because none of Defendants' arguments on
appeal have any merit, we affirm.
held in Biolitec IV, Defendants waived their
injunction-expiration argument. 823 F.3d at 4. The district
court correctly held that the purported "new"
injunction-expiration Rule 60 argument is not new at all, but
the same argument that this court already had rejected. In
fact, the section of Defendants' brief on this appeal
that articulates Defendants' claim of a purported
constitutional violation is an almost word-for-word
reiteration of the section of Defendants' Biolitec
IV brief that presented Defendants' argument that
the district court did not have authority to impose contempt
sanctions. Moreover, Defendants' brief contains no
argument as to why their challenge to the Rule 60 ruling,
which, like their previously rejected jurisdictional
argument, is predicated on the expiration of the preliminary
injunction, is not similarly waived for not having been
raised earlier. And while Defendants contended at oral
argument that the district court premised its denial of the
Rule 60 motion on its lack of jurisdiction to address it, the
plain text of the order denying the Rule 60 motion makes
clear that the District Court did not. Because
Defendants' Rule 60 argument essentially rehashes the
injunction-expiration argument that we deemed waived in
Biolitec IV, the law of the case doctrine forecloses
reconsideration of the former. See Ellis v. United
States, 313 F.3d 636, 646 (1st Cir. 2002)
("[U]nless corrected by an appellate tribunal, a legal
decision made at one stage of a civil or criminal case
constitutes the law of the case throughout the pendency of
the litigation." (quoting Flibotte v. Pa. Truck
Lines, Inc., 131 F.3d 21, 25 (1st Cir. 1997))).
find no abuse of discretion in the district court's
denial of Defendants' motion for relief, purportedly
under Rules 60(a) and 60(b)(5). See Bowen Inv., Inc. v.
Carneiro Donuts, Inc., 490 F.3d 27, 29 (1st Cir. 2007);
Giroux v. Fed. Nat'l Mortg. Ass'n, 810 F.3d
103, 106 (1st Cir. 2016). Rule 60(a) plainly does not apply;
it provides for the correction of a judgment by a district
court due to "clerical, " "copying, " or
"computational" mistakes, Bowen Inv., 490
F.3d at 29 (quoting In re W. Tex. Mktg. Corp., 12
F.3d 497, 504-05 (5th Cir. 1994)), none of which are present
here. Nor does the motion fall within the language of Rule
60(b)(5), which affords relief from a judgment if that
judgment "has been satisfied, released, or discharged;
it is based on an earlier judgment that has been reversed or
vacated; or applying it prospectively is no longer
equitable." Fed.R.Civ.P. 60(b)(5). The contempt
sanctions have not been "satisfied, released, or
discharged, " nor are they based on a judgment that has
been "reversed or vacated." Id.
prospective application of sanctions inequitable. To the
contrary, the relief Defendants seek would be inequitable.
Moreover, the Supreme Court has held that, in order to show
that the prospective application of a judgment is inequitable
under the last clause of Rule 60(b)(5), a party seeking
relief must point to "a significant change either in
factual conditions or in law." Agostini v.
Felton, 521 U.S. 203, 215 (1997) (quoting Rufo v.
Inmates of Suffolk County Jail, 502 U.S. 367, 384
(1992)). There are no such changes here. All the Defendants
have done is to restate previous arguments that have been
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