M2 Software Inc., a Delaware Corporation v. M2 Communications, L.L.C., a of California, Limited Liability Company Jeff Moseley, an Individual Gaylord Entertainment Inc., a Corporation
Docket: 03-56602
Court: Court of Appeals for the Ninth Circuit; August 21, 2006; Federal Appellate Court
M2 Software Inc. (Appellant) sought to recall the mandate and vacate a previous opinion from the Ninth Circuit involving M2 Communications, L.L.C. and other defendants. The court denied these motions, including M2 Communications' request for sanctions against M2 Software. Circuit Judge Pregerson, in a special concurrence, clarified that he had an indirect interest in Time Warner—specifically, an unexercised option to purchase a minority stake in Warner Music, which contracted with M2 Communications. He asserted that this remote interest did not require his recusal under 28 U.S.C. § 455, as it did not directly pertain to the case, and that his impartiality could not reasonably be questioned. Circuit Judge Beezer also concurred, stating that the court lacked jurisdiction to address the recusal challenge due to the mandate not being recalled. The court emphasized that recalling a mandate is reserved for extraordinary circumstances, which were not present in this case. M2 Software's claims did not demonstrate any fraud or gross misconduct that would make enforcing the judgment unconscionable. The Supreme Court had previously reviewed the case without granting certiorari, reinforcing the need for finality in judicial decisions.