John A. BAILEY, Plaintiff-Appellant, v. DART CONTAINER CORPORATION OF MICHIGAN, Dart Container Corporation of Kentucky, Dart Container Corporation of Pennsylvania, and Dart Container Corporation, Defendants-Appellees. John A. Bailey, Plaintiff-Appellee, v. Dart Container Corporation of Michigan, Dart Container Corporation of Kentucky, Dart Container Corporation of Pennsylvania, and Dart Container Corporation, Defendants-Appellees.
No. 02-1165, No. 02-1166
United States Court of Appeals, Federal Circuit
DECIDED: June 7, 2002
292 F.3d 1360
Scott L. Robertson, Hunton & Williams, of Washington, DC, for defendants-cross appellants. Of counsel were Thomas J. Scott, Jr., Ozzie A. Farres, and Emerson V. Briggs, III.
Before LOURIE, LINN and DYK, Circuit Judges.
ON MOTION
LINN, Circuit Judge.
ORDER
1 John A. Bailey moves to dismiss appeal 02-1166 filed by Dart Container Corporation of Michigan et al. Dart Container opposes. Bailey replies.
3 As Bailey correctly notes, an appellee can present in this court all arguments supported by the record and advanced in the trial court in support of the judgment as an appellee, even if those particular arguments were rejected or ignored by the trial court. Datascope Corp. v. SMEC, Inc., 879 F.2d 820, 822 n. 1 (Fed.Cir.1989) (cross-appeal improper to offer arguments in support of the judgment; appellee can assert alternative grounds for affirming the judgment that are supported by the record); Glaxo, Inc. v. TorPharm, Inc., 153 F.3d 1366, 1371-72 (Fed.Cir.1998) (court may adopt ground advanced by appellee that was rejected by the trial court on summary judgment). Thus, the arguments made by the cross-appellants in IMS and Budde could have been considered by this court even if the cross-appellants had merely proceeded as appellees, as long as those arguments were made in support of the judgment of noninfringement. Similarly, in this case, Dart Container can as an appellee make appropriate arguments regarding claim construction that would result in affirmance of the judgment of noninfringement. See United States v. Am. Ry. Express Co., 265 U.S. 425, 435, 44 S.Ct. 560, 68 L.Ed. 1087 (1924) (an appellee can raise “any matter appearing in the record, although his argument may involve an attack upon the reasoning of the lower court or an insistence upon matter overlooked or ignored by it“).
4 It is only necessary and appropriate to file a cross-appeal when a party seeks to enlarge its own rights under the judgment or to lessen the rights of its adversary under the judgment. Am. Ry. Express, 265 U.S. at 435, 44 S.Ct. 560; Carnival Cruise Lines, Inc. v. United States, 200 F.3d 1361, 1365 (Fed.Cir.2000). Thus, a party must file a cross-appeal when acceptance of the argument it wishes to advance would result in a reversal or modification of the judgment rather than an affirmance. Radio Steel & Mfg. Co. v. MTD Prods., Inc., 731 F.2d 840, 844 (Fed.Cir.1984) (party that prevailed due to district court‘s determination of noninfringement must appeal to argue that the district court incorrectly denied its counterclaim for a declaratory judgment of invalidity).
5 In sum, allowing a cross-appeal to proceed in the circumstances of the present case is not permitted and unnecessarily expands the amount of briefing that is otherwise allowed, as well as giving the appellee an unfair opportunity to file the final brief and have the final oral argument, contrary to established rules.
6 Accordingly,
IT IS ORDERED THAT:
7 (1) Bailey‘s motion to dismiss the cross-appeal, 02-1166, is granted.
8 (2) Each side shall bear its own costs with respect to appeal 02-1166.