This case, man, it's nothing but twists.
As we noted last week, Following the Federal Circuit's denial of their mandamus petition, Nimitz failed to produce the documents ordered by the Court by the December 8th deadline. Judge Connolly responded by issuing an order for Nimitz to show cause why it should not be sanctioned for that failure.
Well, Nimitz Responded
On the deadline to respond to the show cause order, Nimitz filed a short (653 word) paper explaining why it had not produced the documents. The upshot is that it intends to seek rehearing of the denial of its mandamus petition:
Nimitz is filing a Combined Petition For Panel Rehearing Or Rehearing En Banc with the Federal Circuit in which Nimitz notes at least two lines of Supreme Court authority that should result in reconsideration of the Panel’s decision to deny a writ of mandamus. Nimitz cannot produce the documents specified in the Order during this process, because such production moot [sic] Nimitz’ Petition
Nimitz Technologies LLC v. CNET Media, Inc. C.A. No. 21-1247-CFC, D.I. 38 at 3
Moreover, they contend that until the Federal Circuit issues its mandate (which it will not do until the time to request rehearing expires at the earliest) the Court lacks jurisdiction to order it to produce the documents.
Nimitz respectfully states that the Court has no jurisdiction with respect to the Order because the Federal Circuit had not yet issued a mandate returning the case to the district court. Nothing in the Federal Rules of Appellate Procedure or the Federal Circuit Rules exempts this case from the normal rule that the case is returned to the district court with the mandate. Cf., Fed. R. App. P. Rule 41 and Federal Circuit Rule 41.
Id. at 2-3.
I must say, I had not seen this one coming. If past is prelude, I would expect an order from the Court on the issue quite soon -- we'll keep you posted.
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