Opinion
No. 2010-1374.
October 26, 2010.
Appeal from the United States District Court for the Southern District of New York in case no. 07-CV-9260, Richard J. Holwell, Judge.
John Flock, Kenyon Kenyon LLP, New York, NY, for Defendant-Appellee.
Tony Colida, Quebec, Canada, pro se.
Before LINN, DYK, and PROST, Circuit Judges.
ON MOTION ORDER
Sony Ericsson Mobile Communications (USA), Inc. moves to dismiss Tony Colida's appeal as frivolous and also moves for sanctions.
Colida sued Sony Ericsson alleging infringement of his design patent. The United States District Court for the Southern District of New York dismissed Colida's complaint as barred by res judicata because he had lost in two previous patent infringement cases involving Sony Ericsson that were essentially the same design as the Sony Ericsson product currently at issue. Colida appeals.
We note that on at least two previous occasions, we have determined that Colida's appeals involving his design patent were frivolous as filed. See Colida v. Sharp Elec. Corp., 125 Fed.Appx. 993 (Fed. Cir. 2005); Colida v. Sanyo N. Am, Corp., ___ Fed.Appx. ___, 2004 WL 2853034 (Fed. Cir. 2004).
An appeal is frivolous when an appellant grounds his appeal on arguments or issues that are "beyond the reasonable contemplation of fair-minded people." Abbs v. Principi 237 F.3d 1342, 1345 (Fed. Cir. 2001). Moreover, an appeal as to which "no basis for reversal in law or fact can be or is even arguably shown" is frivolous. State Indus., Inc. v. Mor-Flo Indus., Inc., 948 F.2d 1573, 1578 (Fed. Cir. 1991). Such an appeal unnecessarily wastes the limited resources of the court as well as those of the appellee. Id.
When an appellant is proceeding in forma pauperis, as Colida is in this appeal, "the court shall dismiss the case at any time if the court determines that . . . the action or appeal . . . is frivolous. . . ." 28 U.S.C. § 1915(e)(2). Here, Colida's brief fails to provide any support for why the district court might have erred in dismissing his complaint. In response to the questions whether the district court erred, Colida responds with "JURIS-PRUDENCE." No basis for reversal in law or fact can be or is arguably shown, and the appeal is frivolous. Although we decline to award sanctions in this appeal, we award Sony Ericsson its costs pursuant to Fed.R.App.P. 39(a)(1) and 28 U.S.C. § 1915(f)(1).
Accordingly,
IT IS ORDERED THAT:
(1) Sony Ericsson's motion to dismiss is granted.
(2) Sony Ericsson's motion for sanctions is denied.
(3) Costs are awarded to Sony Ericsson.