                                                                           FILED
                            NOT FOR PUBLICATION                             APR 25 2013

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



In re: U.S. PHILIPS CORPORATION, a               No. 12-71696
Delaware corporation,
                                                 D.C. No. 2:05-cv-08953-R-PLA

U.S. PHILIPS CORPORATION,
                                                 MEMORANDUM *
              Petitioner,

  v.

UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF
CALIFORNIA, LOS ANGELES,

              Respondent,

KBC BANK N.V.,

              Real Party in Interest.



                    Appeal from the United States District Court
                       for the Central District of California
                     Manuel L. Real, District Judge, Presiding

                       Argued and Submitted March 5, 2013
                              Pasadena, California



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Before: GOODWIN, WARDLAW, and GOULD, Circuit Judges.

      U.S. Philips Corporation (“Philips”) petitions for a writ of mandamus from

the district court’s May 11, 2012 order granting KBC Bank, N.V.’s Motion to

Discontinue the Evidentiary Hearing on the ground that it lacked jurisdiction. We

construe the petition as a notice of appeal, see Calderon v. U.S. Dist. Court, 137

F.3d 1420, 1422 (9th Cir. 1998), and find the appeal timely. We reverse and

remand with instructions that the Clerk of the Court reassign this matter to a

different district court judge.

                                          I

      Because this is the third round of appeals in this matter, we review the

procedural background in detail. Philips filed this patent infringement action in

2005 against KXD Technology and its affiliates (“KXD”). Philips was awarded

treble compensatory damages in the amount of $87,765,249. On July 31, 2007, the

district court found that KXD was “in the process of liquidating and concealing

their assets,” and issued a temporary restraining order (“TRO”) freezing KXD’s

assets. The TRO restricted “all persons . . . in possession or control of [KXD’s]

assets” from

      directly or indirectly transferring . . . concealing, secreting,
      distributing, disposing of, shipping in any way or otherwise hiding
      assets and making unavailable to [Philips] . . . any funds in [KXD’s]


                                          2
      possession, control or in the possession or control of others on behalf
      of [KXD].

On September 17, 2007, the district court entered a preliminary injunction (“PI”)

incorporating the terms of the TRO. However, on the same day, the district court

also entered a default judgment in Philips’s favor, thereby dissolving the PI. See

U.S. Philips Corp. v. KBC Bank N.V. (Philips I), 590 F.3d 1091, 1094 (9th Cir.

2010). KXD maintained accounts in the U.S. and Singapore branches of KBC

Bank. Between the entry of the TRO and the dissolution of the PI, KBC Bank

received and then allegedly froze the transfers of funds into the accounts held by

KXD.1

      KBC Bank, although not initially a party to this action, intervened in the

underlying lawsuit on March 31, 2008. KBC Bank contended that, despite the

TRO, PI, and default judgment entered in Philips’s favor, KBC Bank holds

superior rights to the $1.87 million as part of a contractual and equitable right to



      1
        In the motion to show cause why KBC Bank should not be held in
contempt for violating the TRO and PI, Philips requested that KBC Bank’s
Singapore branch pay the sum of $1,540,790.00, and that KBC Bank’s U.S. branch
pay the sum of $332,470.23. Combined, these constitute the $1,873,260.23 sum
that appears to be in dispute at this stage of this litigation. However, in the prior
appeals, the amount in dispute was stated as $2.6 million. See Philips I, 590 F.3d
at 1093. We are unable to determine the explanation for this discrepancy on this
record. On remand, the district court should determine the precise amount at issue
in the course of determining which entity has superior rights to the funds.

                                           3
“set off” the funds against some $2.86 million in debts independently owed to

KBC Bank by KXD. Accordingly, in their Motion to Modify Asset Freeze Order,

KBC Bank sought to clarify that it was permitted by the TRO and PI not only to

receive the funds, but also to retain them as a set off against KXD’s debts. The

district court granted this motion, finding that KBC was permitted to retain the

funds in order “to reduce [KXD’s] indebtedness to KBC.” Philips appealed.

      In Philips I, we first clarified that KBC Bank’s motion was void ab initio

because entry of default judgment had dissolved the PI, so there was no

preliminary injunction that could be modified. 590 F.3d at 1094. Given this, we

vacated the district court’s modification order. Id. at 1094-95. However, we also

rejected KBC Bank’s contention that the dissolution of the preliminary injunction

rendered this dispute moot. Instead, we invoked our congressional authority to

“remand the cause and direct the entry of such appropriate judgment, decree, or

order, or require such further proceedings to be had as may be just under the

circumstances.” Id. at 1095 (quoting 28 U.S.C. § 2106). We explained that “[o]ur

holding d[id] not affect Philips’s continuing ability to seek damages, through

contempt proceedings,” for violations of the temporary restraining order and

preliminary injunction “that may have occurred while those orders were in effect.”

Id. at 1095 n.3. We declined to resolve the question of which party holds superior


                                          4
rights to the funds, because whether Philips’s claim as a judgment creditor was

superior to KBC Bank’s as a lender was a factual question, hotly disputed by the

parties. Id. at 1095 & n.4.2

      On remand, Philips moved for an order to show cause why KBC Bank

should not be held in contempt for violating the TRO and PI, first, by receiving and

freezing the funds, and second, by attempting to retain the funds as a set off against

KXD’s debts. The district court held that the terms of the TRO and PI did not

preclude KBC Bank from receiving and then freezing the funds. The district court,

without holding the evidentiary hearing as instructed by the Philips I panel, went

on to conclude once again that KBC Bank was not in contempt when it retained the




      2
         In Philips I, we identified the following issues as necessary for the district
court to resolve before it could determine whether KBC Bank holds superior rights
to the funds and, as a result, whether KBC Bank should be held in contempt:

       (1) when KBC Bank first had notice of the TRO, (2) whether Philips
      has properly executed its judgment in regard to the funds, (3) what
      jurisdiction the funds were transferred from, (4) what jurisdiction the
      funds were transferred to, (5) who transferred the funds, (6) which
      defendant’s account received the funds, (7) the respective rights of the
      KXD Defendants to funds deposited in the KBC Bank accounts in
      question, and (8) possibly other facts we do not list here, but that the
      parties or the district court may view as relevant on remand.

590 F.3d at 1095 n.4.

                                           5
funds, because it held legally superior rights to the funds. The district court

therefore denied the contempt motion. Philips again appealed.

      A different panel of our court concluded that the district court did not abuse

its discretion by denying the contempt motion as to KBC’s actions in receiving and

freezing the funds. U.S. Philips Corp. v. KBC Bank N.V. (Philips II), 466 F. App’x

601 (9th Cir. 2012). And we explained that “if all that KBC Bank had done was to

receive funds and freeze them that would have been the end of it.” Id. at 603.

However, because KBC Bank continued to maintain that it had the right to offset

those funds against KXD’s debts, we held that the district court erred by again,

without an evidentiary hearing, finding that KBC Bank held rights to the funds

superior to those of Philips. Id. If, in fact, Philips’s rights are superior and KBC

Bank retained the funds as a set-off to KDX’s debts while the TRO and PI were in

effect, KBC Bank would be in contempt. Id. Pursuant to the power set forth in 28

U.S.C. § 2106, we again vacated and remanded with instructions that the district

court hold an evidentiary hearing on the question of whether Philips’s or KBC

Bank’s rights to the funds are superior. Id.

      Although the district court scheduled the necessary evidentiary hearing as

instructed, it later granted KBC Bank’s motion to vacate the evidentiary hearing,

reasoning that: (1) its motion to modify was void ab initio and then formally


                                           6
withdrawn; (2) Philips’s motion for contempt was fully resolved in KBC Bank’s

favor by the Philips II panel; and (3) there were no longer any pending motions or

proceedings brought by either party in this action. Agreeing with KBC Bank, the

district court concluded there was no longer a case or controversy to resolve, and

dismissed the case by granting the motion to discontinue on May 11, 2012. Philips

filed a petition for writ of mandamus pursuant to 28 U.S.C. § 1651(a) on May 30,

2012.

                                          II

        Mandamus is not available to Philips because Philips could have obtained

review of the district court’s order through direct appeal. Calderon, 137 F.3d at

1422. However, our precedent permits us to construe petitions for writs of

mandamus as notices of appeal under circumstances such as those here. See id.

(explaining that mandamus petition filed within time allowed for filing notice of

appeal may be construed as a notice of appeal); see also Clorox Co. v. U.S. Dist.

Court, 779 F.2d 517, 520 (9th Cir. 1985) (construing a mandamus petition as a

notice of appeal where it was “prudent and wise”); Diamond v. U.S. Dist. Court,

661 F.2d 1198, 1198 (9th Cir. 1981); In re Roberts Farms, Inc., 652 F.2d 793, 795

(9th Cir. 1981). This is consistent with the general rule that courts should liberally




                                           7
construe the requirements for a notice of appeal under Rule 3 of the Federal Rules

of Appellate Procedure. Smith v. Barry, 502 U.S. 244, 247-49 (1992).

      We therefore construe Philips’s petition for writ of mandamus as a timely

notice of appeal. First, Philips filed its writ of mandamus within the 30-day limit

for filing a notice of appeal provided for by Rule 4 of the Federal Rules of

Appellate Procedure.3 Second, the intransigence of the district court in refusing to

comply with our prior mandates has required Philips to bring three separate

appeals to obtain relief from the district court’s initial, and premature,

determination that KBC held rights superior to Philips. It is also important that

district courts comply with our instructions upon remand, and we are empowered

to ensure that they do. See Vizcaino v. U.S. Dist. Court, 173 F.3d 713, 719 (9th

Cir. 1999). Finally, there is an open question as to whether KBC Bank violated the

district court’s TRO and PI when it either attempted to retain, or actually retained

the disputed funds, and whether it acted in contempt of those orders. Thus, we

conclude that the interests of justice dictate that we construe Philips’s petition as a

timely notice of appeal.

                                           III


      3
        The district court dismissed the case by granting KBC Bank’s motion to
discontinue on May 11, 2012. Philips filed its mandamus petition on May 30,
2012.

                                            8
      The district court erred when it concluded that it lacked jurisdiction to

resolve the dispute between Philips and KBC Bank. First, jurisdiction over this

matter has been proper since KBC Bank first intervened in this dispute in 2008.

The district court originally had jurisdiction over the matter because a dispute

existed between the parties and KBC Bank willingly intervened by filing its motion

to modify the asset freeze order. Philips properly appealed the district court’s final

order granting KBC Bank’s motion, and the Philips I panel had jurisdiction to

vacate and remand under 28 U.S.C. § 1291. On remand, Philips properly filed its

motion for an order to show cause why KBC Bank should not be held in contempt.

A district court “has the power to adjudge in civil contempt any person who

willfully disobeys a specific and definite order of the court.” Gifford v. Heckler,

741 F.2d 263, 265 (9th Cir. 1984); see also Hilao v. Estate of Marcos, 103 F.3d

762, 764 (9th Cir. 1996) (holding that post-judgment contempt orders are final and

appealable orders). Accordingly, jurisdiction over the matter at this stage was

proper. See Gifford, 741 F.2d at 265. Philips properly appealed the district court’s

final order denying its motion. The Philips II panel affirmed in part, vacated in

part, and remanded on the basis that the district court had failed to properly resolve

whether KBC Bank was in contempt when it attempted to retain, or retained, the

disputed funds.


                                           9
      Upon remand, the district court misapprehended the Philips II decision and

mandate. Philips II confirmed that the district court was within its discretion to

find that KBC Bank was not in violation of the TRO and PI when it chose to

receive and freeze the funds. However, Philips II did not fully resolve Philips’s

contempt motion. 466 F. App’x. at 602. Instead, Philips II explicitly left open the

question of whether KBC Bank was in contempt when it attempted to retain the

funds. Id. at 603. If KBC Bank’s rights to the transferred funds are not superior to

those of Philips, then retaining those funds violated the TRO and PI, which

prohibited KBC Bank from “making unavailable to [Philips] . . . any funds”

covered by the injunction. Id. As we have now stated three times, it is not possible

to determine whether KBC Bank’s attempt to retain the funds was an act in

contempt of the TRO and PI without making certain factual findings as to

      (1) when KBC Bank first had notice of the TRO, (2) whether Philips
      has properly executed its judgment in regard to the funds, (3) what
      jurisdiction the funds were transferred from, (4) what jurisdiction the
      funds were transferred to, (5) who transferred the funds, (6) which
      defendant’s account received the funds, (7) the respective rights of the
      KXD Defendants to funds deposited in the KBC Bank accounts in
      question, and (8) possibly other facts we do not list here, but that the
      parties or the district court may view as relevant on remand.

Philips I, 590 F.3d at 1095 n.4. Accordingly, Philips II did not fully resolve the

contempt motion because it could not do so without the necessary evidentiary



                                          10
hearing. Given that the contempt motion remains unresolved, a live controversy

exists between the parties for Article III purposes. See Hilao, 103 F.3d at 767

(affirming a district court’s finding of contempt). As on remand after the Philips I

decision, the district court has jurisdiction over Philips’s motion for an order to

show cause why KBC Bank should not be held in contempt. See Gifford, 741 F.2d

at 265.

                                          IV

      We remand this matter for a third time so that Philips’s motion for an order

to show cause why KBC Bank should not be held in contempt can be fully

resolved. On remand, we instruct the Clerk of the Court to reassign this matter to a

different district court judge. We make two inquiries when deciding whether a

case falls into one of the “rare occasions” in which we reassign a case on remand.

United States v. Sears, Roebuck & Co., 785 F.2d 777, 780 (9th Cir. 1986) (per

curiam). “First, we ask whether the district court has exhibited personal bias

requiring recusal from a case.” United Nat’l Ins. Co. v. R & D Latex Corp., 242

F.3d 1102, 1118 (9th Cir. 2001). Second, we look to whether “unusual

circumstances” warrant reassignment. Id. These circumstances focus on three

factors, only one of which must be present to support reassignment:




                                          11
      (1) whether the original judge would reasonably be expected upon
      remand to have substantial difficulty in putting out of his or her mind
      previously expressed views or findings determined to be erroneous or
      based on evidence that must be rejected, (2) whether reassignment is
      advisable to preserve the appearance of justice, and (3) whether
      reassignment would entail waste and duplication out of proportion to any
      gain in preserving the appearance of fairness.

Id. at 1118-19.

      We conclude that reassignment of this matter to a different judge is

warranted. The district judge has shown substantial difficulty in putting out of his

mind his previously expressed views. We also conclude that the appearance of

justice in this case must be preserved through the mechanism of reassignment. See

In re Ellis, 356 F.3d 1198, 1211 (9th Cir. 2004) (en banc). Accordingly, we

instruct the Clerk of the District Court for the Central District of California to

reassign this case to a different district court judge upon remand.

      VACATED and REMANDED with instructions.




                                           12
