                                                                 FILED
                                                     United States Court of Appeals
                        UNITED STATES COURT OF APPEALS       Tenth Circuit

                                FOR THE TENTH CIRCUIT                    April 1, 2015

                                                                     Elisabeth A. Shumaker
                                                                         Clerk of Court
CLEARONE COMMUNICATIONS,
INC., a Utah corporation,

               Plaintiff–Appellee,

v.                                               Nos. 14-4052, 14-4064, 14-4094,
                                                   14-4103, 14-4104 & 14-4108
ANDREW CHIANG; JUN YANG;                          (D.C. No. 2:07-CV-00037-DN)
LONNY BOWERS; WIDEBAND                                      (D. Utah)
SOLUTIONS, INC., a Massachusetts
corporation; VERSATILE DSP, a
Massachusetts corporation; BIAMP
SYSTEMS, an Oregon corporation,

                Defendants.
----------------------------------

DONALD BOWERS,

               Interested Party–Appellant.


                                 ORDER AND JUDGMENT*


Before BRISCOE, Chief Judge, LUCERO, and MATHESON, Circuit Judges.



       *
       After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of this
appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
       Donald Bowers, proceeding pro se, appeals from six different orders entered

against him in post-judgment civil contempt proceedings.1 We dismiss five of the

appeals for lack of jurisdiction, as the contempt proceedings are ongoing in the

district court and none of these non-final orders provide a basis for interlocutory

review. Pursuant to 28 U.S.C. § 1292(a)(1), we have jurisdiction to review the

interlocutory appeal in appeal number 14-4103. We affirm the district court’s order

in that appeal.

                                            I

       The parties are familiar with the long and tortuous history of this litigation,

and we will not repeat it in detail. As is relevant to these appeals, ClearOne sued the

defendants in 2007 for misappropriation of trade secrets. Bowers was not a

defendant in that action, but he is the father of one of the defendants. After ClearOne

prevailed at trial, a permanent injunction was entered against the defendants,

prohibiting them from further using ClearOne’s trade secrets. Bowers, however,

continued to sell products containing ClearOne’s trade secrets through a company

registered in his name.

       In August 2010, the district court found Bowers in contempt of court for

violating the permanent injunction and other injunctive orders related to the use of

       1
        Appeals 14-4052 and 14-4064 were consolidated for procedural purposes, as
were appeals 14-4094, 14-4103, 14-4104, and 14-4108. We determined that all of
these appeals should be considered together. Because Bowers is proceeding pro se,
we construe his filings liberally. Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.
1991).

                                           -2-
ClearOne’s trade secrets. The court also amended the permanent injunction to

expressly cover Bowers, and prohibited him from engaging in the acts described in

the original permanent injunction. He was given the opportunity to purge his

contempt by providing specific information and materials in his possession.

However, he failed to do so.

      In October 2010, the district court ordered that Bowers be incarcerated until he

purged his contempt. The district court then issued a bench warrant for his arrest,

although it was not executed at that time because Bowers was not present in Utah.

Bowers appealed from the contempt order, arguing that the court lacked personal

jurisdiction over him as a non-party because he was not a named defendant in the

original ClearOne trial. He further argued that the court erred by holding him in

contempt of its injunctive orders. We concluded that the district court had personal

jurisdiction over Bowers and affirmed the district court’s contempt order. See

ClearOne Commc’ns, Inc. v. Bowers, 651 F.3d 1200, 1210-16 (10th Cir. 2011).

      Eventually, Bowers was indicted and arrested on criminal contempt charges.

He was brought back to Utah, which led to the civil contempt bench warrant being

executed. In August 2013, Bowers was released on conditions in the criminal case

and was brought before the district court on the civil contempt warrant. The district

court decided to release Bowers, although he had not yet purged his contempt. It

began holding hearings on various issues in the case, including Bowers’ motion to




                                          -3-
stay the civil contempt proceedings pending the disposition of his criminal contempt

case.

        In May 2014, the district court denied Bowers’ motion to stay the civil

contempt proceedings. It also directed Bowers to serve ClearOne with written

responses to the items enumerated in a January 2010 contempt order. ClearOne was

then to review the responses and file them with the court along with commentary on

the adequacy of each response. The court stated that “[t]he responses [would] be

carefully reviewed for accuracy and completeness, and if found to be deficient, the

full powers of the court to enforce the orders may be employed.” Bowers’ appeal of

the denial of his motion to stay is before us as appeal 14-4052.

        Bowers then filed a motion to recuse the district court judge. He appealed the

denial of that motion in appeal number 14-4064. Over the next few months, he filed

several other motions. When those were denied, he appealed from the denials in

appeal numbers 14-4094 (denial of motion to receive electronic notification of docket

activity); 14-4103 (denial of motion to vacate permanent injunction); 14-4104 (denial

of motion to terminate the civil contempt proceedings); and 14-4108 (denial of

motion requesting access to six sealed docket entries).

        The civil contempt proceedings continued in the district court throughout

2014. In August, Bowers served ClearOne with responses to the contempt order.

Subsequently, ClearOne filed the responses under seal with the court along with its

commentary about the adequacy of the responses. ClearOne alleged that the


                                           -4-
responses did not comply with the contempt order and filed a motion to enforce the

court’s previous order that Bowers be incarcerated until his contempt is purged. That

matter remains pending before the district court.

                                            II

      We have an independent duty to examine our jurisdiction. See Amazon, Inc.

v. Dirt Camp, Inc., 273 F.3d 1271, 1274 (10th Cir. 2001). “Generally, only final

decisions of the district court are appealable.” Id. at 1275. “To be final, a decision

ordinarily ends the litigation on the merits and leaves nothing for the district court to

do but execute the judgment.” Mesa Oil, Inc. v. United States, 467 F.3d 1252, 1254

(10th Cir. 2006) (citation and quotations omitted). Appellate jurisdiction under

28 U.S.C. § 1291 over an appeal from post-judgment civil contempt proceedings

exists only when a finding of contempt has been made and a sanction imposed. See

United States v. Gonzales, 531 F.3d 1198, 1202 (10th Cir. 2008).

      When the district court released Bowers from incarceration under the 2010

bench warrant in August 2013, it reopened the civil contempt proceedings and gave

Bowers another opportunity to purge his contempt. In its May 2014 order, the court

indicated that it would review Bowers’ responses to the 2010 contempt order and, if

the responses were found to be deficient, would issue further orders as necessary to

compel compliance. The district court has not yet issued an order determining the

sufficiency of Bowers’ responses or whether any sanction should be imposed.




                                           -5-
       Bowers asserts that the May 2014 order is reviewable under the collateral

order doctrine. That doctrine is a narrow exception to the final judgment rule. Miller

v. Basic Research, LLC, 750 F.3d 1173, 1176 (10th Cir. 2014). “Under the collateral

order doctrine, the district court’s order must [1] conclusively determine the disputed

question [on appeal], [2] resolve an important issue completely separate from the

merits of the action, and [3] be effectively unreviewable on appeal from a final

judgment.” Id. (quotation omitted). Specifically, Bowers contends that providing

disclosures in compliance with the May 2014 order would waive his Fifth

Amendment rights in the parallel criminal contempt proceedings, and that this waiver

would be unreviewable. But Bowers subsequently submitted responses to ClearOne

that were allegedly in compliance with the May 2014 order. Accordingly, this

argument is now moot.

       Further, the district court specified that it was not ruling on the Fifth

Amendment waiver issue, and would consider that issue once the responses were

filed. Because the post-judgment civil contempt proceedings are ongoing and the

district court has not yet entered a final, appealable order, this court lacks jurisdiction

over the non-final orders at issue in appeals 14-4052, 14-4064, 14-4094, 14-4104,

and 14-4108. None are appropriate for interlocutory review.

                                            III

       We have jurisdiction to review the district court’s interlocutory order denying

the motion to vacate the permanent injunction. See 28 U.S.C. § 1292(a)(1).


                                            -6-
                                           A

      The district court had subject matter jurisdiction over the underlying trade

secret action on diversity grounds. See 28 U.S.C. § 1332. Bowers argues that Rule

4.1(b) of the Federal Rules of Civil Procedure prevents the district court from having

jurisdiction over him, but Rule 4.1(b) does not alter the district court’s subject-matter

jurisdiction; it speaks only to limits on the service and enforceability of an order

committing a person for civil contempt in a case that does not involve a federal

question. See Fed. R. Civ. P. Rule 4.1(b). The limits in Rule 4.1(b) precluded the

district court from executing the civil contempt bench warrant it issued in October

2010. However, Rule 4.1(b) does not eliminate the district court’s subject-matter

jurisdiction over the post-judgment civil contempt proceedings.

      Additionally, Bowers argues that the decision in Allergan, Inc. v. Athena

Cosmetics, Inc., 738 F.3d 1350 (Fed. Cir. 2013), petition for cert. filed, 82 U.S.L.W.

3690 (U.S. May 15, 2014), demonstrates that the district court lacks subject-matter

jurisdiction. But Allergan involved a fact-specific question: whether a court abused

its discretion by imposing a nationwide injunction. See id. at 1352. It did not

involve any question of subject-matter jurisdiction, and accordingly does not help

Bowers.

                                            B

      We review a district court’s denial of a motion to vacate a permanent

injunction for abuse of discretion. See Sierra Club v. Cargill, 11 F.3d 1545, 1548


                                           -7-
(10th Cir. 1993). “[C]hanges in injunctions must be based on some substantial

change in law or facts.” SEC v. Blinder, Robinson & Co., 855 F.2d 677, 680 (10th

Cir. 1988) (quotation omitted).

       Bowers argues that the district court had no legal authority to issue a

permanent injunction in 2009 because it allegedly used improperly modified

language from a Supreme Court decision. This argument is untimely and should

have been made in his original appeal. In ClearOne Communications, Inc. v.

Bowers, 643 F.3d 735, 751-54 (10th Cir. 2011), we affirmed the district court’s

decision to enter the amended permanent injunction. Bowers could have discovered

the alleged improper modification of the language from the Supreme Court decision

in that appeal. Because he demonstrates no change in the law or facts that gave rise

to the original injunction, there is no basis to vacate that injunction.

       Bowers also renews his request to terminate the injunction pursuant to Utah

Code § 13-24-3. He raised this same argument in February 2011, but the district

court lacked jurisdiction to hear it because the injunction was then being reviewed on

appeal. Moreover, these same arguments were made by Bowers’ son and rejected by

the district court throughout the underlying trade secret action. Bowers has presented

no new information that was not previously presented to and rejected by the district

court. Accordingly, there has been no change in the facts that would provide a basis

for vacating the injunction.




                                            -8-
       Finally, Bowers advances a new argument on appeal that he did not raise

below. He argues that ClearOne’s trade secret is no longer protected based on a

September 2014 press release, and that ClearOne’s website reveals the trade secret to

the public. If a theory is not raised before the district court, we usually hold it

forfeited. See Richison v. Ernest Grp., Inc., 634 F.3d 1123, 1127-28 (10th Cir.

2011). Thus, we need not resolve this issue, because Bowers did not raise these

arguments in the district court.

       Bowers has failed to demonstrate any change in the law or the facts following

the district court’s entry of the permanent injunction. Accordingly, the district court

did not abuse its discretion when it denied the motion to vacate that injunction.

                                            IV

       We DISMISS appeal numbers 14-4052, 14-4064, 14-4094, 14-4104, and

14-4108 for lack of jurisdiction. Additionally, we AFFIRM the district court’s order

denying the motion to vacate the permanent injunction in appeal number 14-4103.

       Bowers’ request for appointment of counsel in appeal numbers 14-4104 and

14-4108 is DENIED. His motions for leave to proceed on appeal without

prepayment of costs or fees in appeal numbers 14-4064, 14-4104 and 14-4108 are

also DENIED. The filing fees for these appeals must be paid immediately.

       ClearOne’s motions to seal that were filed in the consolidated briefing in

appeal numbers 14-4094, 14-4103, 14-4104, and 14-4108 are GRANTED. As

ClearOne requested in those motions, the redacted versions of appellant’s opening


                                           -9-
brief and reply brief will remain available on the public docket and the unredacted

versions shall remain sealed.

                                                     Entered for the Court



                                                     Carlos F. Lucero
                                                     Circuit Judge




                                         -10-
