Zapata Industries, Inc. v. W.R. Grace & Co.-Connecticut

Questions presented: Whether the 14-day deadline for filing a notice of cross-appeal in rule 4(a)(3) of the Federal Rules of Appellate Procedure is mandatory and jurisdictional or, instead, a rule of practice permitting the appellate court to consider a late-filed cross-appeal where there is excusable neglect and no prejudice occurs.

BY NANCY PERLA, MEDILL NEWS SERVICE

Zapata Industries makes beer-bottle caps. Called "beer crowns," the bottle-tops are sealed with a liner that is coated with an oxygen-destroying chemical. Oxygen ruins beer.

In November 1995, Zapata Industries engaged in a legal battle with another beer crown-making company, W.R.Grace & Co. The corporate dispute was over each companys ownership rights to the anti-oxygen chemical found in the beer crown liners.

Zapata claimed W.R. Grace unfairly held several patents to the chemical processes. The case went to trial in Florida, where Zapata Industries is headquartered.

"W.R. Grace won in that court on every issue except for one aspect of the validity of the patents," said Gary Levin, an attorney representing W.R. Grace.

"So we appealed that issue that we lost on," he said.

All patent infringement issues are appealed to the Federal Circuit Court of Appeals in Washington, D.C. This appeals court has nationwide jurisdiction, unlike the 11 other circuit courts, which preside by location.

"And then Zapata filed a cross appeal, meaning that they wanted their issues reconsidered, too," Levin said. "But they filed it four days too late."

The Federal Circuit Court of Appeals has standard time limits for all the legal elements of the process including motions, appeals and cross-appeals. Zapata exceeded its time limit.

Philip Allen, the lawyer representing Zapata Industries, attributes the mix-up to a post office misunderstanding.

"What happened is, I had changed offices. The postman knew me and thought I had moved to a different office in the same building. I had left a forwarding address, but that law firm took three days to send it to me," Allen said.

Thus, Zapata lost its case in the Federal Circuit Court of Appeals when its appeal was dismissed.

When Zapata's case got thrown out of court because of bureaucratic confusion, Allen found a way for his clients case to go forward.

"There's a dispute among the circuit courts as to whether the timeliness of a cross-appeal is a steadfast rule," Allen said.

Levin agrees.

"It's a split among the circuits. Some say, 'It's a hard and fast rule,' and some others say, 'Under the right circumstances, well cut you a break,"' Levin explained.

The 1st, 3rd, 6th and 7th circuits agree with W.R. Grace that the rule should be steadfast. The 2nd, 9th and D.C. circuits disagree and think Zapata should be allowed to proceed with its case.

"And when there is a disagreement among the circuit courts, its almost certain that the Supreme Court will take a case," Levin said.

"So Zapata went to the Supreme Court and said, 'Mama, your children are squabbling here. Decide for us.'"

On Oct. 1, 2002, as the U.S. Supreme Court was nearing the beginning of its 2002-03 term, the Court granted certiorari in the case and added it to its docket.

Six weeks later, on Nov. 15, Zapata Industries withdrew its petition, and the Court dismissed the case, with the consent of both parties.