Federal Trade Commission v. JAMES D. NOLAND, Jr., individually

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
FEDERAL TRADE COMMISSION,
Plaintiff-Appellee,
v.
JAMES D. NOLAND, Jr., individually and
as an officer of Success by Media Holdings
Inc. and Success by Media LLC, AKA Jay
Noland AKA JD Noland; et al.,
Defendants-Appellants,
and
SUCCESS BY MEDIA HOLDINGS
INCORPORATED, DBA Success By
Health, DBA Success By Media; et al.,
Defendants,
------------------------------
KIMBERLY FRIDAY,
Receiver-Appellee.
No. 20-17324
D.C. No. 2:20-cv-00047-DWL
MEMORANDUM*
Appeal from the United States District Court
for the District of Arizona
Dominic Lanza, District Judge, Presiding
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
FILED
JUL 28 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Submitted July 26, 2021**
San Francisco, California
Before: McKEOWN and NGUYEN, Circuit Judges, and LAMBERTH,*** District
Judge.
Defendants-Appellants appeal the district court’s order denying their motion
to allow representation and the order denying their motion to dissolve or modify
the preliminary injunction. We dismiss as untimely the challenge to the denial of
the motion to allow representation. We have jurisdiction under 28 U.S.C.
§ 1292(a)(1) over the challenge to the denial of the motion to dissolve or modify
the preliminary injunction, and we affirm.
The order denying the motion to allow representation was entered on July
29, 2020, and the notice of appeal was filed on November 27, 2020. Even
assuming, arguendo, that the order on representation is an appealable collateral
order, the appeal of that order was untimely. Fed. R. App. P. 4(a)(1)(B); see SEC
v. Cap. Consultants LLC, 453 F.3d 1166, 1173 (9th Cir. 2006) (per curiam) (“[T]he
time for appeal of an appealable collateral order begins to run on the date the court
enters the order.”). We therefore dismiss the appeal as to that order. See Bowles v.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
*** The Honorable Royce C. Lamberth, United States District Judge for
the District of Columbia, sitting by designation.

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Russell, 551 U.S. 205, 209 (2007) (“[T]he taking of an appeal within the prescribed
time is mandatory and jurisdictional.” (internal quotation marks omitted)).
Although Defendants-Appellants challenge the propriety of the preliminary
injunction, “we do not consider the propriety of the underlying order.” Sharp v.
Weston, 233 F.3d 1166, 1169–70 (9th Cir. 2000). Rather, the question we have
jurisdiction to address is whether the district court abused its discretion in denying
the motion to modify or dissolve the preliminary injunction. See Karnoski v.
Trump, 926 F.3d 1180, 1198 (9th Cir. 2019) (per curiam). Defendants-Appellants
“bear[] the burden of establishing that a significant change in facts or law warrants
revision or dissolution of the injunction.” Sharp, 233 F.3d at 1170. Despite the
absence of any ruling from the Supreme Court at the time this appeal was filed,
Defendants-Appellants argue that the Court’s grant of the petition for writ of
certiorari in AMG Capital Management, LLC v. FTC, 141 S. Ct. 194 (2020),
constituted a significant change in the law. The district court correctly concluded
to the contrary, and we affirm its denial of the motion to dissolve or modify the
preliminary injunction. We leave it to the district court in the first instance to
consider whether and to what extent the decision in AMG Capital Management,
LLC v. FTC, 141 S. Ct. 1341 (2021), bears on the preliminary injunction.
DISMISSED IN PART and AFFIRMED IN PART.

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