author: WOLLMAN, Circuit Judge.

text:
    DULUTH NEWS-TRIBUNE, A DIVISION OF NORTHWEST PUBLICATIONS, INC., a Delaware corporation, Appellant, v. MESABI PUBLISHING COMPANY, a Minnesota corporation; Hibbing Tribune Company, Inc., a Minnesota corporation, Appellees.
    No. 95-2912.
    United States Court of Appeals, Eighth Circuit.
    Submitted March 11, 1996.
    Decided June 3, 1996.

      Kenneth R. Hartman, Miami, Florida, argued (Gail A. McQuilkin, on the brief), for Appellant.
    Tim A. Strom, Duluth, Minnesota, argued (R. Thomas Torgerson, on the brief), for Appellees.
    Before FAGG, BRIGHT, and WOLLMAN, Circuit Judges.
   WOLLMAN, Circuit Judge.

Duluth News-Tribune, a division of Northwest Publications, Inc., filed this trademark infringement action against Mesabi Publishing Company (Mesabi) and Hibbing Tribune Company, Inc., (Hibbing) under section 43(a) of the Lanham Trademark Act, 15 U.S.C. § 1125(a) (1995) and under Minnesota Stat. § 325D.165 (1995). After considering cross-motions for summary judgment, the district court granted judgment in favor of defendants on all claims. We affirm.

I. Background

For more than 100 years plaintiff has circulated a daily newspaper, the Duluth News-Tribune, in the Northeast region of Minnesota, which includes the distinct geographic area known as the Iron Range. Although the paper has always provided both national and regional news coverage, in 1992 plaintiff expanded the Iron Range edition to provide more local coverage.

From 1946 to the present, defendant Mesabi has published a daily newspaper, the “Mesabi Daily News,” in Virginia, Minnesota, which is located in the eastern region of the Iron Range. Since 1899 defendant Hibbing has published a paper Sunday through Friday in Hibbing, Minnesota, in the western Iron Range. That paper, previously entitled the “Hibbing Daily Tribune,” is now entitled simply the “Daily Tribune.”

This controversy began when Mesabi and Hibbing, both subsidiaries of the Murphy Publishing Company, began a joint publication of a Saturday newspaper entitled the “Saturday Daily News Tribune,” which they distributed throughout the Iron Range. On July 9, 1994, in response to plaintiffs complaints about the similarity in names between plaintiffs paper and the new Saturday paper, defendants added an ampersand between the words “News” and “Tribune.”

Duluth News-Tribune, unsatisfied with this change, filed suit claiming trademark infringement under the Lanham Act and trademark dilution under Minnesota law. The district court denied plaintiffs motion for a preliminary injunction and granted summary judgment in defendants favor on all counts.

II. The Summary Judgment Standard

Summary judgment is proper when, after reviewing the facts in the light most favorable to the nonmovant and giving that party the benefit of all reasonable inferences to be drawn from the facts, the court finds that no genuine issue of material fact exists and that the moving party is entitled to judgment as a matter of law. Barry v. Barry, 78 F.3d 375, 379 (8th Cir.1996). A factual dispute is material if it might affect the outcome of the suit. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-248, 106 S.Ct. 2505, 2509-2510, 91 L.Ed.2d 202 (1986). On appeal we apply this standard de novo. Barry, 78 F.3d at 379.

III. The Lanham Act: Likelihood of Confusion

To prevail under the Lanham Act, plaintiff must prove that defendants’ use of the name “Saturday Daily News & Tribune” creates a likelihood of confusion, deception, or mistake among an appreciable number of ordinary buyers as to the source of or association between the two papers. See 15 U.S.C. § 1114(1) and General Mills, Inc. v. Kellogg Co., 824 F.2d 622, 626 (8th Cir.1987).

In determining whether a likelihood of confusion exists, we consider the following factors: 1) the strength of the trademark; 2) the similarity between the parties’ marks; 3) the competitive proximity of the parties’ products; 4) the alleged infringer’s intent to confuse; 5) evidence of actual confusion; and 6) the degree of care reasonably expected of potential customers. Anheuser-Busch, Inc. v. Balducci Publications, 28 F.3d 769, 774 (8th Cir.1994), cert. denied, — U.S. -, 115 S.Ct. 903, 130 L.Ed.2d 787 (1995). These factors do not operate in a mathematically precise formula; rather, we use them at the summary judgment stage as a guide to determine whether a reasonable jury could find a likelihood of confusion. Factual disputes regarding a single factor are insufficient to support the reversal of summary judgment unless they tilt the entire balance in favor of such a finding. See SquirtCo v. Seven-Up Co., 628 F.2d 1086, 1091 (8th Cir.1980) (“Resolution of [the likelihood of confusion] issue does not hinge on a single factor”). Accordingly, we will separately examine each factor with its corresponding relevant facts.

A. The Strength of the Trademark

As a preliminary matter, we must determine whether plaintiff’s mark is strong enough to merit trademark protection. To do this, we must classify the mark, “Duluth News-Tribune,” into one of four categories: 1) arbitrary or fanciful, 2) suggestive, 3) descriptive, or 4) generic. Cellular Sales, Inc. v. Mackay, 942 F.2d 483, 485 (8th Cir.1991). An arbitrary or fanciful trademark is the strongest type of mark and is afforded the highest level of protection. Id. at 486. At the other end of the spectrum, a generic term is one that is used by the general public to identify a category of goods, and as such merits no trademark protection. See Miller Brewing Co. v. G. Heileman Brewing Co., 561 F.2d 75, 79-81 (7th Cir.1977) (holding “Lite Beer” to be generic), cert. denied, 434 U.S. 1025, 98 S.Ct. 751, 54 L.Ed.2d 772 (1978). Suggestive and descriptive marks fall somewhere in between. A suggestive mark is one that requires some measure of imagination to reach a conclusion regarding the nature of the product. See American Home Products Corp. v. Johnson Chemical Co. Inc., 589 F.2d 103, 106 (2d Cir.1978) (holding the mark “Roach Motel” to be suggestive because “[w]hile roaches may live in some motels against the will of the owners, motels are surely not built for roaches to live in”). A descriptive mark, on the other hand, immediately conveys the nature or function of the product and is entitled to protection only if it has become distinctive by acquiring a secondary meaning. See 20th Century Wear, Inc. v. Sanmark-Stardust Inc., 747 F.2d 81, 87-88 (2d Cir.1984) (finding “Cozy Warm ENERGY-SAVERS” to be descriptive), cert. denied, 470 U.S. 1052, 105 S.Ct. 1755, 84 L.Ed.2d 818 (1985).

We find that the district court properly classified plaintiffs mark, “Duluth News-Tribune,” as descriptive. The words convey meaning too directly to be suggestive, yet are too specific to be generic. The name “Duluth News-Tribune” notifies the reader that the product is a Duluth newspaper, but is too specific to describe all newspapers, or even all Duluth newspapers. Viewing the facts in plaintiffs favor, we will also assume that the mark “Duluth News-Tribune” has acquired secondary meaning meriting trademark protection.

Plaintiff attempts, however, to extend this protection beyond “Duluth News-Tribune,” to the term “News-Tribune,” • on the theory that customers in the Iron Range refer to plaintiffs paper in shorthand form as the “News-Tribune.” Plaintiff has offered no evidence sufficient to substantiate this claim. The only direct evidence of a customer’s shorthand reference to the Duluth News-Tribune is from a customer who refers to the paper as “Duluth News.” Moreover, the widespread use of the words “news” and “tribune” throughout the newspaper industry precludes plaintiff from claiming exclusive privilege to use these words. Thus, although the mark “Duluth News-Tribune” merits some level of protection, the shorthand “News-Tribune” merits none.

B.The Similarity Between the Parties’ Marks

Having determined that the relevant protected mark is “Duluth News-Tribune,” we must consider the similarity between that mark and defendants’ mark, “Saturday Daily News & Tribune.” The use of dominant identical words in common does not mean that two marks are similar. General Mills, 824 F.2d at 627. Rather than consider the similarities between the component parts of the marks, we must evaluate the impression that each mark in its entirety is likely to have on a purchaser exercising the attention usually given by purchasers of such products. Id.

Although the marks are aurally similar, when pronounced in their entirety the word “Saturday” and the ampersand in defendants’ paper make the two distinguishable. Moreover, several significant visual distinctions distinguish the two marks. First, in defendants’ paper the words “news” and “tribune” appear on different lines; in plaintiffs paper the words “news” and “tribune” appear on the same line. Second, defendants’ title appears in two colors, i.e., red and black; plaintiffs title appears all in black. In addition, the size and style of type used by the two papers differs. Cf. Esquire, Inc. v. Esquire Slipper Manuf. Co., Inc., 243 F.2d 540, 542 (1st Cir.1957) (giving weight to distinctive script in avoiding likelihood of confusion).

The most significant distinction, however, is the defendants’ placement of a blue banner reading, “Publication of the Mesabi Daily News, Virginia and Daily Tribune, Hibbing” beneath the title. Cf. Pignons S. A. de Mecanique v. Polaroid Corp., 657 F.2d 482, 487 (1st Cir.1981) (otherwise similar marks are not likely to be confused when used in conjunction with clearly displayed name of manufacturer). These distinctions appear to be sufficient to notify an ordinary customer that the papers originate from two different publishers.

C. The Competitive Proximity of the Parties’ Products

Neither party contests that both papers provide regional and local news coverage and that they directly compete in the Iron Range; thus we need not further examine this factor.

D. The Alleged Infringer’s Intent to Confuse

Plaintiff alleges bad faith on the part of defendants, pointing specifically to defendants’ adoption of the mark “Saturday Daily News & Tribune” and simultaneous decision to expand the Saturday edition to provide regional news coverage shortly after plaintiffs paper extended regional coverage in its Iron Range edition. Plaintiff also points to the absence of a 'written agreement between Hibbing and Mesabi as evidence that defendants’ “joint venture” explanation for the use of the words “Daily News & Tribune” is simply an excuse to infringe on plaintiffs mark.

We find these bare allegations to be unsupported by the record. The name “Saturday Daily News & Tribune” is a logical merger of the names “Daily News” and “Daily Tribune.” The identification of defendants’ paper as a joint publication appears on each individual paper. The paper’s sales extend to cover both the area served by the Mesabi paper and that served by the Hib-bing paper. The paper is sold in newsstands identified as belonging to either Hibbing or Mesabi, and through subscriptions to the Mesabi or Hibbing paper. Likewise, defendants announced the formation of the joint Saturday edition in each of their respective papers, clearly identifying the source of the Saturday edition. Moreover, after plaintiffs initial letter protesting the paper’s name, defendants contacted the Minnesota Newspaper Association and accepted the Association’s recommendation that defendants add an ampersand between the words “news” and “tribune.” The record, then, reveals no evidence of bad faith on the part of defendants, leaving no genuine factual dispute regarding defendants’ intent.

E. Evidence of Actual Confusion

“[W]hen determining whether there exists a likelihood of confusion, weight is given to the number and extent of instances of actual confusion.” Life Technologies, Inc. v. Gibbco Scientific, Inc., 826 F.2d 775, 777 (8th Cir.1987). Plaintiff points to the following incidents of actual confusion: 1) plaintiffs receipt of defendants’ mail and phone calls; 2) a reporter who alleges that he routinely identifies himself as working for the News-Tribune, and that on a particular occasion he was asked, “which News-Tribune?”; 3) plaintiffs receipt of phone calls asking whether the two newspapers are associated; 4) plaintiff’s receipt of a subscription form for defendants’ paper; and 5) plaintiffs receipt of a reader’s letter proposing corrections to an article that appeared in defendants’ paper.

In evaluating the evidence at the summary judgment stage, we consider only those responses that are supported by admissible evidence. Postscript Enterprises v. City of Bridgeton, 905 F.2d 223, 226 (8th Cir.1990). Applying this standard, we find that plaintiffs claim of actual confusion through misdirected mail and phone calls fails to raise a genuine factual dispute for two reasons.. First, the vague evidence of misdirected phone calls and mail is hearsay of a particularly unreliable nature given the lack of an opportunity for cross-examination of the caller or sender regarding the reason for the “confusion.” See Davidson & Schaaff, Inc. v. Liberty National Fire Insurance Co., 69 F.3d 868, 871 (8th Cir.1996) (refusing to consider hearsay evidence); Vitek Systems, Inc. v. Abbott Labs., 675 F.2d 190, 193 (8th Cir.1982) (affirming district court’s decision to discount this type of hearsay evidence). Second, we find such evidence to be de minimis and to show inattentiveness on the part of the caller or sender rather than actual confusion. See J. Thomas McCarthy, Trademarks and Unfair Competition, § 23.2, p. 52, n. 1 (2d ed. 1984).

The question to the reporter who was asked to specify which News-Tribune he worked for indicates a distinction in the mind of the questioner, rather than confusion. See Fisher Stoves, Inc. v. All Nighter Stove Works, 626 F.2d 193, 195 (1st Cir.1980) (questions about affiliations of two companies indicate that customers were aware of different product sources). The nature of the question demonstrates an understanding that at least two newspapers contain the words “news” and “tribune.” Likewise, the calls questioning whether the two papers were associated demonstrate that potential customers do not automatically associate the words “news” and “tribune” with “Duluth News-Tribune.”

Plaintiff next points to its receipt of a subscription form for defendants’ paper. This evidence is of little value to plaintiff, as upon defendants’ inquiry the sender clarified that she subscribed to both papers and had inadvertently placed the subscription forms in the wrong envelopes. Moreover, the fact that her check was made out to “Duluth News” cuts against plaintiff’s claim of actual confusion.

Plaintiff offers one incident of actual confusion — a letter from a reader offering plaintiff editorial suggestions regarding an article that appeared in defendants’ paper. Although this incident provides some support for plaintiffs claim of likelihood of confusion, even several isolated incidents of actual confusion that occur initially upon the creation of a potentially confusing mark are insufficient to establish a genuine issue of material fact as to the likelihood of confusion. See Astra Pharmaceutical Prod. Inc. v. Beckman Instruments Inc., 718 F.2d 1201, 1207-08 (1st Cir.1983) (holding that temporary confusion regarding the association of salesmen from the plaintiffs company with the defendant was insufficient to raise a genuine issue of material fact); Scott Paper Co. v. Scott’s Liquid Gold, Inc., 589 F.2d 1225, 1231 (3rd Cir.1978) (holding that nineteen misdirected letters in four years were insufficient to establish likelihood of confusion). Rather, we look to whether an appreciable number of ordinary purchasers are likely to be so misled, and here the record before us compels an answer in the negative.

F. The Degree of Care Reasonably Expected of Potential Customers

In evaluating this factor, we look to the degree of care expected of an ordinary purchaser. Plaintiff argues that because of the low cost of newspapers, ordinary buyers will exercise only minimal care in selecting one. Although plaintiffs argument is not without some force when applied to the customer who makes a quick stop at a convenience store to buy a paper, plaintiff ignores the reality of defendants’ distribution methods. Approximately ninety-two percent of defendants’ papers are sold through home subscriptions. Customers who spend the money and effort to subscribe to a newspaper are likely to know which paper they are buying, and to complain if they get the wrong one. Moreover, an additional two percent are sold through newspaper racks that clearly identify defendants as the paper’s publication source. This leaves only six percent of papers sold as potential candidates for buyer confusion, a number too small to create a genuine issue of fact regarding the likelihood that an appreciable number of customers will be confused.

IV. The Appropriateness of Summary Judgment in this Case

When, as in this ease, a trademark dispute centers on the proper interpretation to be given to the facts, rather than on the facts themselves, summary disposition is appropriate. Woodsmith Pub. Co. v. Meredith Carp., 904 F.2d 1244, 1247 (8th Cir.1990).

Our evaluation of the foregoing six factors leads us to conclude that no factual dispute exists the resolution of which would allow a reasonable jury to find a likelihood of confusion. Plaintiffs trademark, though deserving of some protection, is relatively weak. Although the newspapers themselves compete directly and provide similar news coverage, the titles, as they appear on the two papers, are sufficiently distinct to allow an ordinary purchaser to distinguish between them. Moreover, the remaining factors balance in defendants’ favor. We find no evidence that defendants chose their mark with the intent to infringe on plaintiffs goodwill. The evidence of actual confusion is de minim-is and insufficient to establish a genuine issue of material fact. Finally, and most decisive, defendants’ distribution methods ensure that the vast majority of ordinary purchasers will not be confused. Thus we affirm the district court’s grant of summary judgment on the Lanham Act claims.

V. State Claim: Dilution

The Minnesota anti-dilution statute protects trademark owners from dilution of the distinctive quality of their marks notwithstanding the likelihood of confusion. The statute defines “distinctive quality” as meaning that “the mark is inherently distinctive or has acquired distinctiveness, and the mark is well known or famous.” Minn.Stat. § 325D.165 (1995).

The Minnesota statute, which is similar to other state dilution statutes, appears to codify the common law, which has functioned to protect well-known, distinctive marks from uses that are likely to tarnish or erode the distinctive nature of the mark. See DeRosier v. 5931 Business Trust, 870 F.Supp. 941, 948 (D.Minn.1994) (holding that the Minnesota statute simply codifies common law); See also Anheuser-Busch, 28 F.3d at 777 (interpreting Missouri anti-dilution statute, which is virtually the same as Minnesota statute, to protect against uses that tend to weaken or tarnish the unique nature of a mark). See, e.g., Polaroid Carp. v. Polaroid, Inc., 319 F.2d 830 (7th Cir.1963) (“Polaroid” as used in connection with the installation of refrigeration and heating systems constitutes a dilution of “Polaroid.”).

The gravamen of a dilution claim is that the plaintiffs mark be particularly distinctive and well-known or famous. We conclude that the mark “Duluth News-Tribune” is not sufficiently distinctive to merit protection under this statute. Plaintiff cannot expect to acquire exclusive use, even in a limited area, of the common words “news” and “tribune.” Plaintiffs claim of extensive advertising does not change this fact. See Esquire, 243 F.2d at 543 (1st Cir.1957) (“We do not think a trader can pluck a word ... out of the general vocabulary and appropriate it to his exclusive use no matter how much effort and money he may expend in the attempt”). Thus, we affirm the district court’s grant of summary judgment for defendants on the state claim.

The judgment is affirmed.

      . The Honorable Michael J. Davis, United States District Judge for the District of Minnesota.

      . We take judicial notice of plaintiffs recent registration of the trademark "Duluth News-Tribune."


source: Caselaw Access Project

author: JOHN R. GIBSON, Circuit Judge.

license: Public Domain

text:
    Patsy L. CONNER, Plaintiff-Appellant, v. RECKITT & COLMAN, INC., Defendant-Appellee.
    No. 95-2923.
    United States Court of Appeals, Eighth Circuit.
    Submitted Jan. 12, 1996.
    Decided June 4, 1996.

      David C. Vaughn, III, argued, Springfield, MO, for appellant.
    Todd A. Johnson, argued, Springfield, MO (Lester J. Boyle, III, on the brief), for appel-lee.
    Before RICHARD S. ARNOLD, Chief Judge, JOHN R. GIBSON, and BOWMAN, Circuit Judges.
   JOHN R. GIBSON, Circuit Judge.

Patsy L. Conner appeals from an order of the district court granting her former employer’s motion for summary judgment in her suit alleging she was fired because of her disability and because she filed a workers’ compensation claim. Conner argues that the statute of limitations did not bar her disability claim and that summary judgment was inappropriate because she had not completed discovery. We affirm.

Conner worked for Reckitt & Colman, Inc. on its second shift at its Springfield, Missouri distribution center when she was fired on September 28, 1992. At the time she was fired, Conner was receiving medical treatment for her left knee, which she injured while working at Reckitt & Colman. Eight months after she was fired, Conner asked Reckitt & Colman to make reasonable accommodations for her disability so she could return to work. Reckitt & Colman never responded to this request.

Reckitt & Colman stated that it fired Conner because she worked on its second shift, and it sold all of its second shift business. Once that business was sold, Reckitt & Col-man no longer needed its second shift workers. Reckitt & Colman stated that Conner was one of twelve workers it fired, and that it has not replaced Conner.

On September 2, 1993, Conner filed a charge with the Missouri Commission on Human Rights, claiming that Reckitt & Colman discriminated against her based on her disability. Once the commission gave Conner a “Right-to-Sue” letter, she filed suit in federal district court. Conner claimed that Reek-itt & Colman had violated the Americans With Disabilities Act of 1990, 42 U.S.C. § 12112 (1994), and Missouri law, Mo.Rev. Stat. § 213.055.1(l)(a) (1994), by firing her because of her injury and by failing to respond to her later request that it make reasonable accommodations for her disability so she could return to work. Conner also claimed that Reckitt & Colman violated section 287.780 of the Missouri statutes by firing her in retaliation for filing a workers’ compensation claim because of her injured knee.

In response to Reckitt & Colman’s motion for summary judgment, Conner argued that the statute of limitations did not bar her claims. In addition Conner stated that Reckitt & Colman had not completely answered her interrogatories and requests for documents and that she did not have an opportunity to schedule depositions. Despite her objections, Conner refused to schedule depositions, and failed to file a motion to compel Reckitt & Colman to more fully answer her interrogatories and requests for documents.

On June 22, 1995, the district court granted Reckitt & Colman’s motion for summary judgment, holding that the statute of limitations for Conner’s claims of disability discrimination was 300 days and that she filed her charge more than 300 days after Reckitt & Colman fired her. The district court also held that Conner had not produced any evidence to support her claim that Reckitt & Colman fired her in retaliation for filing her workers’ compensation claim. Conner appeals.

I.

Conner argues that she filed her disability discrimination claim in time because she filed it within 300 days of Reckitt & Colman’s failure to respond to her May 26, 1993 request for reasonable accommodations. Conner does not dispute that the statute of limitations bars her claim if the only act of discrimination is her firing. Conner argues, however, that Reckitt & Colman discriminated against her twice, first by firing her on September 28,1992 because of her knee injury, and second by refusing to accommodate her disability by not responding to her May 26, 1993 request. Conner also asserts that these two acts constitute a continuing violation of the ADA.

We review the district court’s grant of summary judgment de novo. McKee v. Federal Kemper Life Assurance Co., 927 F.2d 326, 328 (8th Cir.1991). Summary judgment is appropriate if there are no disputed issues of material fact and Reckitt & Colman is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c).

The statute of limitations for a disability discrimination claim under the ADA, 42 U.S.C. § 12117 (1994) (incorporating 42 U.S.C. § 2000e-5), is 300 days. The statute of limitations begins to run at the time of the discriminatory act, and not when the consequences of the act become most painful. Delaware State College v. Ricks, 449 U.S. 250, 258, 101 S.Ct. 498, 504, 66 L.Ed.2d 431 (1980).

Ricks requires us to reject Conner’s argument that Reckitt & Colman committed unlawful discrimination by not responding to her request for reasonable accommodations. Assuming Reckitt & Colman fired Conner because of her disability, the firing constitutes the discriminatory act. Reckitt & Col-man’s failure to consider her later request for accommodation was merely a consequence of its discriminatory act.

We also reject Conner’s argument that Reckitt & Colman’s firing of Conner and its later failure to answer her letter constitute a continuing violation that tolls the statute of limitations. The firing of an employee cannot be a continuing violation, Rudolph v. Wagner Elec. Corp., 586 F.2d 90, 92 (8th Cir.1978), cert. denied, 441 U.S. 924, 99 S.Ct. 2033, 60 L.Ed.2d 397 (1979), even when the effects of the firing are felt later, see Ashley v. Boyle’s Famous Corned Beef Co., 66 F.3d 164, 167 (8th Cir.1995) (en banc). Conner’s employment relationship with Reckitt & Col-man ended when she was fired. Reckitt & Colman cannot continue to discriminate against Conner when it no longer employs her. Additionally, allowing Conner to restart the statute of limitations by sending a letter requesting reasonable accommodations after she has been unequivocally fired would destroy the statute of limitations. There is no continuing violation that tolls the statute of limitations in this case, and the district court properly granted Reckitt & Colman’s motion for summary judgment on Conner’s disability discrimination claim.

II.

Conner argues that the district court improperly granted summary judgment in favor of Reckitt & Colman on her claim that Reckitt & Colman fired her in retaliation for filing a workers’ compensation claim. See Hansome v. Northwestern Cooperage Co., 679 S.W.2d 273, 275 (Mo.1984). Reckitt & Colman stated that it fired Conner because it sold the part of its business involving the work that Conner used to do. Conner admits in her brief that she has no evidence to refute Reckitt & Colman’s explanation for her firing. Because Conner has produced no facts establishing an essential element of her claim on which she has the burden of proof, Reckitt & Colman is entitled to judgment as a matter of law. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-25, 106 S.Ct. 2548, 2552-54, 91 L.Ed.2d 265 (1986).

III.

Conner argues that summary judgment was inappropriate because she did not have an adequate opportunity to conduct discovery before the district court granted Reckitt & Colman’s motion for summary judgment.

The party defending a motion for summary judgment may request that the district court postpone ruling on the motion until it can conduct further discovery. Fed. R.Civ.P. 56(f); Humphreys v. Roche Biomedical Labs., Inc., 990 F.2d 1078, 1081 (8th Cir.1993). We review the district court’s refusal to allow further discovery before ruling on the motion for summary judgment for abuse of discretion. See Id. at 1081.

Reckitt & Colman objected to some of Conner’s interrogatories and requests for documents. Conner informed the district court of Reckitt & Colman’s objections to her discovery, but never filed a motion to compel Reckitt & Colman to fully comply with her discovery requests. She also advised the district court that she would not conduct any further discovery until Reckitt & Colman fully complied with her discovery requests. Given Conner’s failure to file a motion to compel and her refusal to conduct further discovery until Reckitt & Colman fully complied with her discovery requests, the district court did not abuse its discretion in refusing to postpone its ruling on Reckitt & Colman’s motion for summary judgment.

We affirm the district court’s grant of summary judgment in favor of Reckitt & Colman.

      . The Honorable Russell G. Clark, Senior Judge, United States District Court for the Western District of Missouri.

      . Conner does not appeal from the district court’s grant of summary judgment in favor of Reckitt & Colman on her Missouri disability discrimination claim. The district court's decision on that claim is thus final.

      . Conner also argues that she recently discovered another violation of the ADA committed by Reckitt & Colman and points particularly to an interrogatory answer in which Reckitt & Colman stated it issued an Equal Employment Opportunity and Sex Harassment policy statement on April 1, 1994. Conner asserts that there is no indication in Reckitt & Colman’s answer that Reckitt & Colman ever posted a notice regarding the ADA before the date in its answer. Conner contends that she would need to amend her complaint to include a claim for failure to post such notices.
      The record does not reflect that Conner filed a motion to amend her complaint. She simply stated, in language much as we have set forth above, that she would need to amend her complaint. This is not a sufficient request for relief on which to base a claim that the district court erred, nor do we read Conner’s brief to specifically so argue.


text:
    UNITED STATES of America, Appellee, v. Joseph William FOLEN, IV, Appellant.
    No. 95-3496.
    United States Court of Appeals, Eighth Circuit.
    Submitted May 30, 1996.
    Decided June 4, 1996.

      Omar F. Green, II, Little Rock, AR, for Appellant.
    Clarence Daniel Stripling, Little Rock, AR, for Appellee.
    Before McMILLIAN, WOLLMAN, and MURPHY, Circuit Judges.
   WOLLMAN, Circuit Judge.

Joseph William Folen, IV, appeals his conviction following his conditional guilty plea to conspiring to violate 18 U.S.C. § 842(i), which prohibits felons from possessing explosives that have travelled in interstate commerce. We affirm.

Folen and a friend broke into a storage shed at a quarry in Pulaski County, Arkansas, and stole explosives. After his arrest, Folen pleaded guilty to an information charging him with conspiring “to possess explosives which had been shipped or transported in interstate commerce.” Having reserved his right to challenge the constitutionality of section 842(i), Folen moved the court to dismiss the information, citing United States v. Lopez, — U.S.-,-, 115 S.Ct. 1624, 1634, 131 L.Ed.2d 626 (1995). The district court rejected Folen’s challenge and sentenced him to sixty months imprisonment and three years of supervised release.

On appeal, Folen argues that Congress has exceeded its power under the Commerce Clause by continuing to regulate indefinitely the possession of explosives after they have crossed state lines; and that his conduct, which occurred entirely within Pulaski County, constituted a local offense and did not substantially affect interstate commerce.

The constitutionality of a statute is a legal question we review de novo. United States v. Monteleone, 77 F.3d 1086, 1091 (8th Cir.1996).

Section 842(i)(l) makes it unlawful for a felon to “possess any explosive which has been shipped or transported in interstate ... commerce.” We hold that section 842(i)(l) is constitutional because its express jurisdictional element ensures that it regulates only the possession of explosives that have travelled in interstate commerce. Cf. United States v. Bates, 77 F.3d 1101, 1104 (8th Cir.1996) (upholding 18 U.S.C. § 922(g)(1) because it contains express jurisdictional element limiting regulation to firearm possessions with explicit nexus to interstate commerce). The interstate nexus is not dependent upon a defendant’s personal interstate transportation of the explosives he possessed. Cf. United States v. Shelton, 66 F.3d 991, 992 (8th Cir.1995) (per curiam) (for purposes of 18 U.S.C. § 922(g), interstate nexus is sufficient where firearm has at some time been in interstate commerce), cert. denied, — U.S.-, 116 S.Ct. 1364, 134 L.Ed.2d 530 (1996).

Accordingly, the judgment of conviction is affirmed.

      . The Honorable Henry Woods, United States District Judge for the Eastern District of Arkansas.


author: PER CURIAM.

text:
    In re Kenneth L. KASDEN, Debtor. STEINER AND SAFFER, Plaintiff/Appellee, v. Kenneth L. KASDEN, Defendant/Appellant.
    No. 95-3078.
    United States Court of Appeals, Eighth Circuit.
    Submitted May 16, 1996.
    Decided June 4, 1996.

      Before MURPHY and ROSS, Circuit Judges, and VAN SICKLE, District Judge.

       The Honorable Bruce M. Van Sickle, United States District Judge for the District of North Dakota, sitting by designation.

   PER CURIAM.

Kenneth Kasden filed for protection under Chapter 7 of the Bankruptcy Code in August 1994, and identified property located in Edi-na, Minnesota as exempt homestead property. Steiner and Saffer, which is a judgment creditor of Kasden, filed an objection to his claimed homestead exemption, arguing that Kasden had lost his homestead exemption to the property when he ceased to occupy it for more than six months without filing notice as required by Minnesota Statute § 510.07. Kasden has not resided on the property since it was damaged extensively by fire in November 1993 and has not filed a homestead notice with the county recorder.

The bankruptcy court denied the objection of Steiner and Saffer on two grounds: that a person forced from homestead property due to casualty has not ceased to occupy it within the meaning of the statute, and that Kasden physically occupied the property, albeit not as a residence. The district court reversed and remanded on the basis that Minnesota law does not recognize a casualty exception to statutory abandonment, Joy v. Cooperative Oil Ass’n, 360 N.W.2d 363, 366 (Minn.Ct.App.1984) (en bane), review denied (Minn. March 6, 1985) (owner absent from property more than six months due to destruction of premises by fire lost homestead exemption when he failed to file notice), and requires that a property owner occupy the property as a residence to maintain a homestead exemption.

After careful review of the record before us and the arguments raised, we conclude the district court correctly resolved the issues. The order is affirmed. See 8th Cir.R. 47B.

      . The bankruptcy trustee also filed an objection to the claimed exemption, but is not a party to this appeal.

      . The Honorable Donald D. Alsop, United States District Judge for the District of Minnesota.


author: POOLE, Circuit Judge:

text:
    SIMPLY FRESH FRUIT, INC., a California corporation; P & C Services, Inc., a California corporation, Plaintiffs-Appellants, v. The CONTINENTAL INSURANCE COMPANY, a New Hampshire corporation, Defendant-Appellee.
    No. 94-56061.
    United States Court of Appeals, Ninth Circuit.
    Argued and Submitted Feb. 9, 1996.
    Memorandum Filed March 8, 1996.
    Order and Opinion Filed May 30, 1996.

      Edouard V. Rosa, Huebner & Rosa, Los Angeles, California, for plaintiffs-appellants.
    James H. Wilkins, Robert K. Landen, McCormick, Barstow, Sheppard, Wayte & Carruth, Fresno, California, for defendant-appellee.
    Before: POOLE, WIGGINS and RYMER, Circuit Judges.
   ORDER

The appellee’s request for publication pursuant to Ninth Cir. R. 36-2 is GRANTED. Thus, the memorandum disposition filed March 8, 1996 is hereby redesignated as an authored opinion by Judge Cecil F. Poole.

OPINION

POOLE, Circuit Judge:

OVERVIEW

Simply Fresh Fruit, Inc. and P & C Services, Inc. (collectively “Appellants”) appeal the district court’s grant of summary judgment in favor of their insurer, Continental Insurance Company, on their complaints for breach of contract and the implied covenant of good faith and fair dealing. The district court found that Continental did not have a duty to defend Simply Fresh and P & C in two earlier actions brought by a third-party for misappropriation of trade secrets and patent infringement. Applying California law, the district court held that the underlying actions were not covered under the “advertising injury” provision of the appellants’ insurance policies. We affirm.

I.

Simply Fresh is in the business of processing and selling fresh fruit and fruit segments for use in salads and similar products. At the time the lawsuits at issue here arose, Simply Fresh had engaged the services of P & C as its primary processing facility for its fruit products. Simply Fresh and P & C held separate insurance contracts with Continental whereby the insurer agreed to defend and indemnify them for injuries suffered as a result of their business advertising activities.

Under the policy terms, coverage extended to “advertising injury” only if caused by an offense committed: (1) in the “coverage territory” during the policy period; and (2) in the course of advertising their goods, products or services. Further, for purposes of coverage, the relevant provisions defined “advertising injury” to include any “misappropriation of advertising ideas or style of doing business.”

During the time the policies were in effect, one of Simply Fresh’s competitors, Reddi-Made Foods Company, Inc. (“Reddi-Made”), filed three lawsuits (collectively “the underlying actions”) against Simply Fresh and P & C. The first action was filed in California state court and contained allegations of: (1) misappropriation of trade secrets, (2) breach of contract, (3) violation of the Uniform Trade Secrets Act, and (4) intentional interference with economic advantage. The second and third actions were filed in federal district court and, once consolidated, alleged claims for patent infringement, contributory infringement and inducing infringement.

The gravamen of Reddi-Made’s state court action was that Simply Fresh and P & C had misappropriated its secret automated process for slicing fruit. The allegations underlying this complaint were that a former mechanic for Reddi-Made, while still employed by Reddi-Made, began to build an identical fruit cutting system and production line for Simply Fresh. Subsequently, Simply Fresh hired another ex-employee of Reddi-Made’s, who allegedly solicited a third Reddi-Made employee to steal various parts from the processing system. At all times during these events, the Reddi-Made employees were parties to confidentiality agreements. Reddi-Made’s complaint alleged that as a result of this misappropriation of its trade secrets, Simply Fresh was able to significantly cut its production costs and effectively destroy Red-di-Made’s economic advantage.

In the federal actions, Reddi-Made alleged that Simply Fresh and P & C infringed its patents in the fruit-cutting device and processes by using them in their manufacturing operations. Further, Reddi-Made alleged that Simply Fresh had induced and contributed to P & C’s infringement of its patented cutting devices and operating processes. Although not included in the allegations in Red-di-Made’s complaints, appellants admit that they would on occasion give prospective and current customers tours of their newly automated processing facilities in order to highlight the improved quality of their fruit products.

Simply Fresh and P & C tendered the defense of both the federal and state actions to Continental. Continental refused the tendered defenses and denied coverage. Subsequently, Reddi-Made and the appellants settled the underlying actions, which were dismissed with prejudice. This diversity action pursuant to 28 U.S.C. § 1332 between the insurer and the appellants followed.

On April 18, 1994, Continental filed a motion for summary judgment or partial summary judgment. Simply Fresh and P & C filed an opposition on June 6, 1994, and subsequently filed cross-motions for summary judgment on June 16, 1994. All the motions were scheduled to be heard on July 11,1994; however, the motions were removed from the calendar and taken under submission by the district court prior to the scheduled hearing date.

On June 28, 1994, the district court granted Continental’s motion for summary judgment, and found that the summary judgment in favor of Continental rendered the cross-motions moot. This timely appeal followed, and we have jurisdiction pursuant to 28 U.S.C. § 1291. We affirm.

II.

We review a district court’s grant of summary judgment de novo. Jesinger v. Nevada Federal Credit Union, 24 F.3d 1127, 1130 (9th Cir.1994). Our task is to determine, viewing the evidence in the light most favorable to the nonmoving party, whether there are any genuine issues of material fact and whether the district court correctly applied the relevant substantive law. Id.

III.

Relying on the express policy language and the undisputed fact that the policies were in effect at all times relevant to this litigation, the district court found that, under California law, Continental had no duty to defend either the state trade secret action or the federal patent claim. The district court based its conclusion on the California Supreme Court’s interpretation of the scope of “advertising injury” coverage expressed in Bank of the West v. Superior Court, 2 Cal.4th 1264, 10 Cal.Rptr.2d 538, 833 P.2d 545 (1992).

In Bank of the West, the California Supreme Court held that any “ ‘advertising injury5 must have a causal connection with the insured’s ‘advertising activities’ before there can be coverage.” 2 Cal.4th at 1277, 10 Cal.Rptr.2d 538, 833 P.2d 545. We address the district court’s application of Bank of the West to each of the underlying actions in turn. We note preliminarily, however, that we agree with the district court’s conclusion that under the clear language of the policies, coverage is provided for “ ‘advertising injury5 only if it was committed by Simply/P & C [sic] in the course of advertising their goods, products or services.” In other words, any of the policy’s enumerated advertising injuries must be caused by Simply Fresh’s or P & C’s advertising in order to satisfy Bank of the West’s nexus requirement. See Bank of the West, 2 Cal.4th at 1265, 10 Cal.Rptr.2d 538, 833 P.2d 545 (a “court must interpret the language in context, with regard to its intended function in the policy.”).

A. The State Misappropriation of Trade Secrets Claims

We note from the outset that the duty to defend is broad in California. See Gray v. Zurich Ins. Co., 65 Cal.2d 263, 276, 54 Cal.Rptr. 104, 419 P.2d 168 (1966)(“courts do not examine only the pleaded word but the potential liability created by the suit.”). However, the seminal Gray case added the caveat that “the insurer need not defend if the third party complaint can by no conceivable theory raise a single issue which could bring it within the policy coverage.” Id. at 275 n. 15, 54 Cal.Rptr. 104, 419 P.2d 168.

Simply Fresh and P & C assert that Red-di-Made’s state law misappropriation of trade secrets claims alleged facts that could potentially give rise to claims for trade dress infringement, false designation of origin in violation of the Lanham Act, and common law unfair competition. Further, they argue, any of these potential claims could reasonably fall within the “misappropriation of style of doing business” language of the policy, thus triggering Continental’s duty to defend.

Even if we accept the appellants’ argument, our recent decision in Microtec Research Inc., et al. v. Nationwide Mutual Ins. Co., et al., 40 F.3d 968 (9th Cir.1994), would compel us to affirm the district court’s finding that the allegations in the trade secret action did not arise in the course of Simply Fresh’s advertising activities. The allegations in the underlying dispute in Mi-crotec were virtually identical to those asserted by Reddi-Made. Id. at 970 (complaint included claims for inter alia, breach of contract, misappropriation of trade secrets, intentional interference with prospective economic advantage). Although the insured in Microtec allegedly “passed off,” or advertised, its competitor’s intellectual property as its own, we noted that “[t]he complaint conspicuously and carefully omit[ted] to allege any wrongdoing with respect to [Microtee’s] advertisements.” Id. at 971 (“If Microtec had been able to establish that it faced potential liability for those advertisements, it might have arguably had a claim against its insurers under Gray [citations and internal quotations omitted]_[however] there was no potential liability based on these ....advertisements, because Green Hills elected not to make that claim.”). As we went on to note in Microtec, the “harm ... .is allegedly caused by misappropriation of the [trade secret], not by the advertising itself.” Id.

Appellants produced no evidence on summary judgment that Reddi-Made had suffered damages because of their advertising in order to prove the elements of any such claim. Thus, the appellants’ argument utterly fails to address the correct causation requirement under the language of the policy and California law.

B. The Federal Patent Infringement Claims

The appellants argue that the Bank of the West causal nexus requirement is satisfied here because their alleged use of ReddiMade’s patented devices and processes occurred in concert with the advertising and promotion of their fruit products. This argument is flawed for two reasons.

First, we have previously held that, as a matter of law, patent infringement cannot occur in the course of an insured’s advertising activities. See, e.g., Iolab Corp. v. Seaboard Surety Co., 15 F.3d 1500, 1505 (9th Cir.l994)(holding that infringement claim based on manufacture and sale of patented lens did not arise out of the insured’s advertising activities under Bank of the West); Everest and Jennings, Inc. v. American Motorists Ins. Co., 23 F.3d 226, 229 (9th Cir.l994)(drawing same conclusion based oh policy language identical to that used in the case at bar); see also New Hampshire Ins. Co. v. R.L. Chaides Construction Co., 847 F.Supp. 1452, 1456-57 (N.D.Cal.1994)(holding that patent infringement cannot be committed in the course of advertising activities).

Here, Reddi-Made’s federal claims for direct, contributory and inducing infringement all accrued when Simply Fresh and P & C allegedly used its patented devices and processes. This injury has no causal connection to any advertising activities as a matter of law because it could have occurred independent and irrespective of any advertising by the appellants. That Simply Fresh exploited its alleged use of the patented processes in conjunction with its product promotional activities is immaterial. The gravamen of the patent infringement claim is the use alone. See, e.g, Iolab, 15 F.3d at 1506 (“a patent is infringed by making, using, or selling a patented invention, not by advertising it”); Everest, 23 F.3d at 229 (“the statutory definition of patent infringement [under 35 U.S.C. § 271(a) ] refers only to the making, using or selling of a product”).

Second, the appellants’ argument would lead this court to a finding that when the alleged infringement (e.g.use) of a patented process constitutes a form of advertisement, the causal nexus of Bank of the West is satisfied. As such, they argue, an insurer cannot avoid its contractual duty to defend.

However, this argument ignores the plain language of the policy. Appellants maintain, in effect, that because they exposed their alleged infringement of Reddi-Made’s patented processes through their product promotion, their conduct falls within the coverage of Continental’s policy. As noted, however, under the policy, the advertising activities must cause the injury-not merely expose it. Accord Iolab, 15. F.3d at 1507 (noting that insured failed to show that patent holder’s loss was caused by its advertising, rather than its infringement); Everest, 23 F.3d at 229 (noting that patentee’s claim never asserted that infringement occurred because of insured’s advertising); Microtec, 40 F.3d at 971 (“It is now the clearly established law in California '_that the injury for which coverage is sought must be caused by the advertising itself.”). We therefore agree with the district court that the appellants’ advertising activities did not cause the injuries alleged in Reddi-Made’s federal patent infringement claims.

IV.

Based on the foregoing discussion, we hold that Continental had no duty to defend Simply Fresh and P & C in Reddi-Made’s state trade secret or federal patent infringement suits under the advertising injury provisions of their insurance policies. The judgment of the district court is AFFIRMED.

      . Indeed, the appellants assert that when the defenses were tendered to Continental, Reddi-Made could at any time have amended its complaint to include such claims. As we discuss infra, however, under our decision in Microtec, even if these specific causes of actions could have been added, no potential coverage would exist under the advertising injury clause.

      . The appellants draw our attention to the recent case of Sentex Systems v. Hartford Accident and Indemnity Co., 882 F.Supp. 930 (C.D.Cal.1995), which addressed a similar insurance coverage dispute involving an underlying action with striking factual similarity to Reddi-Made’s state court action. The Sentex court held that the misappropriation of a competitor's trade secrets by a former employee for use in the promotion of the insured's products raised a potential for liability under the covered offense of "misappropriation of advertising ideas or style of doing business.” Id. at 944. We do not find the Sentex court's reasoning persuasive for two reasons. First, it disregards our conclusion in Microtec that "the injury for which coverage is sought must be caused by the advertising itself." See Microtec, 40 F.3d at 971. In Sentex, as here, the misappropriation of trade secrets occurred prior to any advertisement of products or services. Simply stated, the advertising did not cause the misappropriation. Second, the Sentex court relies heavily on case law from another federal district which, as noted by the California Supreme Court, did not resolve the issue of the causal connection between “advertising injury” and "advertising activities.” See Bank of the West, 2 Cal.4th at 1275, 10 Cal.Rptr.2d 538, 833 P.2d 545 (discussing John Deere Ins. Co. v. Shamrock Industries, Inc., 696 F.Supp. 434, 440 (D.Minn.1988), aff'd 929 F.2d 413 (8th Cir.1991)). Now that the issue has been conclusively resolved by the California Supreme Court, that resolution must control.


author: LEAVY, Circuit Judge: FARRIS, Circuit Judge,

text:
    UNITED STATES of America, Plaintiff-Appellee, and The State of California; The State Bar of California, Intervenors-Appellees, v. William WUNSCH; Beverly Wunsch; Teri Lee Sowers, Defendants, and Frank L. Swan, Respondent-Appellant.
    No. 93-50671.
    United States Court of Appeals, Ninth Circuit.
    Argued and Submitted Aug. 3, 1994.
    Opinion Filed April 28, 1995.
    Rehearing Granted Oct. 12, 1995.
    Reargued and Submitted Dec. 12, 1995.
    Opinion Withdrawn May 23, 1996.
    Decided May 24, 1996.

      Carol A Sobel, ACLU Foundation of Southern California, Los Angeles, California, for respondent-appellant.
    Paul L. Seave, Assistant United States Attorney, Sacramento, California; Elana Shavit Artson, Assistant United States Attorney, Santa Ana, California, for plaintiff-ap-pellee.
    Karen Leaf, Deputy Attorney General, Sacramento, California, for petitioner-inter-venor-appellee.
    James M. Wagstaffe and Mark L. Tuft, Cooper, White & Cooper, San Francisco, California, for petitioner-intervenor-appellee.
    Robert A Hawley and Lawrence C. Yee, Office of General Counsel, The State Bar of California, San Francisco, California, for petitioner-intervenor-appellee.
    Lynn Hecht Schafran, NOW Legal Defense and Education Fund, New York City, for amici curiae.
    Robert M. Ikemi, California Women’s Law Center, Los Angeles, California, for amici curiae.
    Meir J. Westreich, Glendale, California, for amicus curiae.
    Before: BROWNING, FARRIS and LEAVY, Circuit Judges.
   LEAVY, Circuit Judge:

In this case we are called upon to determine whether the district court properly sanctioned an attorney for conduct that occurred outside the courtroom and after the attorney had ceased to represent any of the parties involved with the proceedings before the court. For the reasons that follow, we reverse.

FACTS AND PRIOR PROCEEDINGS

This matter arose during the course of a criminal tax prosecution brought by the United States against three defendants, William and Beverly Wunsch and their daughter, Teri Sowers. Shortly after Sowers’s arrest by federal agents on March 18, 1993, Frank Swan telephoned Assistant United States Attorney Elana Artson, counsel for the United States. Swan identified himself as Sowers’s lawyer and asked about the charges pending against his client, including the conditions for her release. Swan also told Artson that he would be unable to attend Sowers’s bail hearing that afternoon, but would send another attorney, Gerald Wilson, in his stead.

On March 24, 1993, Artson moved to disqualify Swan and Wilson from representing Sowers, arguing that their representation of both Sowers and her parents, who at that time were the targets of a grand jury investigation, amounted to a conflict of interest. In a memorandum in opposition filed five days later, Sowers argued that disqualifying Swan would adversely affect her ability to present an effective defense, because Swan had represented both her and her parents since November 1990 in connection with the underlying Internal Revenue Service civil audit and summons enforcement hearings. Sowers also declared that she and her parents were prepared to waive any conflict. On March 29, 1993, Artson filed a supplement to her motion, noting that Swan had previously represented two accountants the government intended to call as witnesses during its case-in-chief.

On April 5, 1993, the district court conducted a hearing at which both Swan and Wilson appeared and argued against the government’s motion. The court granted the motion, finding that a serious potential for conflict of interest existed. Sowers filed a motion to reconsider four days later. The following week (i.e., April 15,1993), a federal grand jury handed down a 14-count superseding indictment containing additional charges against Sowers as well as new charges against the Wunsches. On April 20, 1993, Artson also moved to disqualify Swan and Wilson from representing the Wunsches. Neither Swan nor Wilson filed any opposition to this motion. On April 28, 1993, the district court granted the motion to disqualify them from representing the Wunsches, and denied Sowers’s motion to reconsider.

On May 6, 1993, Artson received a letter from Swan. The letter was dated May 3, 1993, and read as follows:

Dear Elana: I have something here that I think applies to you.
Your disqualification of Wilson and me was neither just nor fair to the defendants. Surely, it serves your interests because now it will be easy for you.
Very truly yours,
/s/ Frank Swan
FRANK L. SWAN, INC.

Appended to the letter was a single sheet of paper with the following photocopied words, all enlarged and in capital letters:

MALE LAWYERS PLAY BY THE RULES, DISCOVER TRUTH AND RESTORE ORDER. FEMALE LAWYERS ARE OUTSIDE THE LAW, CLOUD TRUTH AND DESTROY ORDER.

On May 10, 1993, the government filed a motion asking the district court to punish Swan for violating Rules 2.5.1 and 2.5.2 of the Local Civil Rules of Practice for the United States District Court, Central District of California (“Local Rules”). In his opposition filed May 21, 1993, Swan argued that the court lacked disciplinary authority (i.e., jurisdiction) over him because he had not appeared in the criminal case and his conduct was unconnected with that litigation. In the alternative, Swan contended that, even if his comments ran afoul of the Local Rules, they were protected speech under the First Amendment. The government filed its reply on May 28, 1993, and the matter was argued to the court ten days later.

On September 13, 1993, the district court issued its Memorandum Opinion on Order Sanctioning Attorney for Gender-Based Discrimination. Matter of Swan, 833 F.Supp. 794 (C.D.Cal.1993). The court found that, by sending the letter to Artson, Swan had violated several Local Rules, including one that incorporated the provisions of a state statute governing attorney conduct. Id. at 798-99 & n. 6. The court ordered Swan to write a letter of apology to Artson, and referred the matter to the Central District’s Standing Committee on Discipline for any action it might deem appropriate. Id. at 800. Swan timely appealed.

By published opinion filed April 28, 1995, we reversed the district court’s decision on the grounds that two of the Local Rules in question were inapposite, and the state law provision relied upon by the district court was unconstitutionally vague. United States v. Wunsch, 54 F.3d 579, 584-86 (9th Cir.1995). Shortly thereafter, the State of California and the California State Bar Association (jointly, “California”) filed a motion to intervene on appeal and petitioned us to rehear the case, arguing that California had not been given an opportunity to challenge our determination that the statute in question was unconstitutional. After we had granted the motion to intervene, the National Conference of Black Lawyers (“NCBL”) sought leave to file a brief as an amicus curiae in favor of our decision and in opposition to the arguments advanced by California. On October 12, 1995, we granted NCBL’s motion along with California’s peti-üon for rehearing. Following additional briefing, we heard oral argument from the parties and parties-intervenor in December 1995.

ANALYSIS

Standard of Review

This Circuit has not squarely decided the question of what standard of review should govern appeals from decisions imposing sanctions for attorney conduct found to violate local rules. Compare United States v. Lopez, 4 F.3d 1455, 1458 (9th Cir.1993) (de novo) with Professional Programs Group v. Department of Commerce, 29 F.3d 1349, 1353 (9th Cir.1994) (abuse of discretion) and Guam Sasaki Corp. v. Diana’s Inc., 881 F.2d 713, 715 (9th Cir.1989) (according “great deference” to court’s interpretation of its local rules).

We have held in the context of Fed. R.Civ.P. 11 that a district court’s decision to impose sanctions against an attorney for violating the court’s local rules is subject to three levels of review: First, we examine for clear error the court’s findings of historical fact; second, we review de novo the determination that counsel violated the local rules; and third, we apply an abuse of discretion standard to the district court’s choice of sanctions. Warren v. Guelker, 29 F.3d 1386, 1388 (9th Cir.1994) (per curiam). We need not decide what the appropriate standard of review should be in the instant appeal, however, because we would reach the same result regardless of which one were applied.

With respect to the First Amendment, however, the scope of our review is clear: “Legal and constitutional questions are reviewed de novo. In eases ... raising First Amendment issues, an appellate court has an obligation to make an independent examination of the whole record in order to make sure that the judgment does not eonsti-tute a forbidden intrusion on the field of free expression.” United States Dist. Court v. Sandlin, 12 F.3d 861, 865 (9th Cir.1993) (internal quotations and citations omitted).

Discussion

The district court cited as authority for its disciplinary action Local Rules 2.2.6, 2.5.1, and 2.5.2; section 6068(f) of California’s Business and Professions Code; “and the Court’s inherent power[.]” Matter of Swan, 833 F.Supp. at 799 n. 6. With respect to the court’s inherent power, we note that an attorney admitted to a particular bar may be disciplined for conduct that violates that bar’s local rules of professional conduct. Standing Comm. on Discipline v. Ross, 735 F.2d 1168, 1170 (9th Cir.), appeal dism’d & cert. denied sub nom. Frontier Properties v. Elliott, 469 U.S. 1081, 105 S.Ct. 583, 83 L.Ed.2d 694 (1984). This power to discipline is not limited to conduct that occurs within the course of litigation. See Western Sys., Inc. v. Ulloa, 958 F.2d 864, 873 (9th Cir.1992) (as amended), cert. denied, 506 U.S. 1050, 113 S.Ct. 970, 122 L.Ed.2d 125 (1993). The questions before us, then, are whether the district court had the authority under the Local Rules to discipline Swan and, if so, whether Swan’s conduct amounted to a violation of the Local Rules.

I. Local Rule 2.2.6

Swan first argues that his removal from the case placed him beyond the reach of Local Rule 2.2.6, the basis upon which the district court relied in asserting disciplinary authority. Matter of Swan, 833 F.Supp. at 797. The government contends, and the district court implicitly held, that once Swan had appeared in the underlying criminal proceeding he remained within the reach of the court’s disciplinary authority under Rule 2.2.6 for as long as the litigation continued, regardless of his disqualification.

Rule 2.2.6 provides that “Any attorney who appears for any purpose submits to the discipline of this Court with respect to conduct of the litigation” (emphasis added). For the purposes of Rule 2.2.6, an attorney becomes subject to the disciplinary authority of the district court when two conditions are met: First, the attorney must actually appear before the court; and second, the behavior for which he is disciplined must have some nexus with the conduct of the litigation before the court. Id.

A. Appearance

Swan argued before the district court, and maintains on appeal, that he never formally entered an appearance on behalf of either Sowers or the Wunsehes in the underlying criminal proceeding, and therefore never “appeared” before the district court in connection with that litigation. We reject this contention as finding no support in the record.

The materials before us show that Swan identified himself as Sowers’s attorney in his initial telephone contact with Artson on March 18, 1993, and the Designation and Appearance of Counsel form filed later that same day identified Swan as one of Sowers’s attorneys. Moreover, the clerk’s criminal minutes for Sowers’s arraignment listed both Swan and Wilson as defense counsel, and further noted that Wilson was appearing for Swan. In addition, Defendant’s Opposition to Motion to Disqualify Defense Counsel, filed March 29, 1993, identified both Swan and Wilson as defense counsel. Further, Swan appeared with Wilson at counsel table during the April 5, 1993 hearing, where he was not sworn as a witness and argued against his own disqualification. We also note that it was Swan, not Wilson, who signed the substitution of attorney forms for the Wunsehes, and Swan himself expressly referred to “[yjour disqualification of Wilson and me ...” (emphasis added) in his letter to Artson. Finally, Swan never objected to his being identified as Sowers’s attorney.

Swan’s every action was consistent with his being exactly what he appeared, and what everyone else took him to be, viz., counsel for the accused. Moreover, Swan could have resolved any doubts concerning his status— and thereby rendered moot all of the government’s efforts to have him disqualified—by the simple expedient of telling the court that he was not one of the defense attorneys for either Sowers or the Wunsehes. Finally, it is disingenuous for Swan to argue that he had no connection with a ease in which he fought so hard against his own disqualification. Accordingly, we find no error in the district court’s ruling that Swan had “appeared” before the court during the course of the ongoing litigation.

B. Nexus

Similarly, we cannot say that the district court abused its discretion by concluding that Swan’s actions had the requisite nexus with the conduct of the litigation before the court. See Professional Programs Group, 29 F.3d at 1353. The motion to disqualify Swan was litigated during the course of the ongoing tax prosecution. Moreover, Swan’s communication to Artson was a direct and immediate response to the district court’s decision to bar Swan from participating further in that litigation. Finally, the subject matter of the communication was Swan’s perception of Artson’s conduct during .those proceedings.

To shield Swan from potential discipline the moment he was disqualified would effectively immunize conduct that was not unconnected with the ongoing prosecution. In light of the great deference we must accord the district court’s interpretation of its own Local Rules, see Guam Sasaki Corp., 881 F.2d at 715, we conclude that there was a sufficient nexus between Swan’s communication and the ongoing criminal prosecution to support the court’s exercise of its disciplinary authority under Local Rule 2.2.6.

II. Local Rule 2.5.2

As already noted, one of the bases upon which the district court relied in imposing sanctions was Local Rule 2.5.2, which provides that “[n]o attorney shall engage in any conduct which degrades or impugns the integrity of the Court or in any manner interferes with the administration of justice therein.” See Matter of Swan, 883 F.Supp. at 798-99. Swan argues that he should not have been sanctioned under this Rule because his conduct neither impugned the integrity of the court nor interfered with the administration of justice. We agree.

A. Impugning the Integrity of the Court

We begin by noting that, “[Ojnce a lawyer is admitted to the bar, although he does not surrender his freedom of expression, he must temper his criticisms in accordance with professional standards of conduct.” Sandlin, 12 F.3d at 866. When levelled against a court, such criticisms must be viewed objectively rather than in the subjective context of what the critic allegedly intended. Id. at 867 (construing Washington local court rule in conjunction with Rule of Professional Conduct involving claim that lawyer defamed trial judge).

No reference to any court or judge appears or is even hinted at in the letter or attachment. Moreover, Swan’s criticism “cannot be equated with an attack on the motivation or the integrity or the competence of the judge[ ].” In re Sawyer, 360 U.S. 622, 632, 79 S.Ct. 1376, 1381, 3 L.Ed.2d 1473 (1959). Finally, while the attachment impugns “female lawyers” and reveals a patently sexist attitude on Swan’s part, the cover letter indicates that Swan’s criticism is directed at Artson. “[A] lawyer may criticize ... the prosecution, even to the extent of suggesting wrongdoing ... without by that token impugning the judiciary.” Id. Accordingly, we reject the government’s contention that Swan’s conduct impugned the integrity of the court within the meaning of Rule 2.5.2.

B. Interference with the Administration of Justice

The district court cited to two published decisions in support of its conclusion that Swan’s sexist communication constituted an interference with the administration of justice under Local Rule 2.5.2. See Matter of Swan, 833 F.Supp. at 798 (citing In re Plaza Hotel Corp., 111 B.R. 882 (Bankr.E.D.Cal.), aff'd without op., 123 B.R. 466 (9th Cir. BAP 1990); Principe v. Assay Partners, 154 Misc.2d 702, 586 N.Y.S.2d 182 (N.Y.Sup.Ct.1992)). Neither of these decisions supports the district court’s conclusion.

In In re Plaza Hotel Corp., a bankruptcy court disqualified debtor’s male counsel in part because of “the gender bias that counsel has exhibited toward the women who represent the chapter 11 trustee and the United States Trustee[.]” Ill B.R. at 891-92. However, the court’s criticism of debtor’s lawyer was based on more than a display of gender bias. Although he had made slighting oral and written references during the proceedings to the designee as “office help” even though aware that she was a lawyer, debtor’s attorney had also refused to assist the debtor in meeting its obligation to cooperate with the Chapter 11 trustee, and had refused to respond to the designee’s written request for full disclosure on a question of conflict of interest. Id.

Similarly, in Principe, the court sanctioned an attorney for unprofessional conduct in the litigation process, based on a series of demeaning remarks directed against a female attorney at deposition. 586 N.Y.S.2d at 184. The remarks, which included references to the female lawyer as “little lady,” “little mouse,” “young girl,” and “little girl,” were accompanied by rude hand gestures and had been made in front of other counsel, the witness, and a court reporter. Id. The court concluded that sanctions were appropriate because the attorney’s repeated misconduct amounted to an egregious failure to conform to accepted notions, including a recent amendment to a Disciplinary Rule of New York’s Code of Professional Responsibility. Id. at 185.

In both cases the courts imposed sanctions based on facts showing that each attorney’s sexist behavior was not only deplorable, but clearly interfered with the administration of justice. In the instant case, however, we have a single incident involving an isolated expression of a privately communicated bias with no facts that would show how that communication adversely affected the administration of justice, either in this or in any other case. While we decline to hold that a single egregious act of bigotry could never subject an officer of the court to disciplinary sanctions, there has been no showing that Swan’s action adversely affected the administration of justice within the meaning of Rule 2.5.2. Accordingly, we must vacate that portion of the district court’s decision which finds a violation of Local Rule 2.5.2. Cf. Gentile v. State Bar of Nev., 501 U.S. 1030, 1075, 111 S.Ct. 2720, 2745, 115 L.Ed.2d 888 (1991) (part II of majority opinion; Rehnquist, C.J.) (in order to satisfy the First Amendment, there must be facts showing a “substantial likelihood of material prejudice” to an adjudicative proceeding before a lawyer may be disciplined for extrajudicial comments); Standing Comm. on Discipline v. Yagman, 55 F.3d 1430, 1442, 1443 (9th Cir.1995) (attorney speech may not be sanctioned absent showing that conduct was “highly likely” to prejudice administration of justice).

III. Local Rule 2.5.1

The bulk of Swan’s argument on appeal involves a challenge to the constitutionality of section 6068(f) of California’s Business and Professions Code as incorporated by Local Rule 2.5.1. Matter of Swan, 833 F.Supp. at 799 & n. 6. Swan contends that the statute fails, generally on grounds of vagueness and overbreadth, and specifically as applied to him. California offers two related arguments in response: First, we need not reach the merits of Swan’s constitutional arguments because section 6068(f) has been narrowly construed to apply only to conduct that adversely affects the administration of justice, and we have already concluded that Swan’s conduct did not adversely affect the administration of justice; and second, even if section 6068(f) is applicable, the California courts have sufficiently narrowed the interpretation of section 6068(f) to survive a void-for-vagueness challenge. We reject both of these contentions.

A. Inapplicability of Section 6068(f)

California cites to numerous state law decisions in support of its contention that, over the past century, the California courts had sufficiently narrowed the interpretation of section 6068(f) to make clear that Swan’s conduct in the instant ease fell outside the scope of that statute. We disagree. Our review of the California ease law dealing with “offensive personality” in the context of the administration of justice fails to reveal a single controlling decision — much less a clear line of authority — that either specifically discusses the scope of section 6068(f) or explicitly limits its applicability to, e.g., courtroom interactions.

To be sure, there are a few reported decisions which give some hint at the limits of section 6068(f). See, e.g., People v. Espinoza, 3 Cal.4th 806, 12 Cal.Rptr.2d 682, 689-90, 838 P.2d 204, 211-12 (1992) (as modified) (prosecutor’s behavior did not violate section 6068(f) because it was not prejudicial misconduct intended or likely to deceive the jury or affect either the jury’s evaluation of the evidence or its verdict), cert. denied, — U.S. -, 114 S.Ct. 2780, 129 L.Ed.2d 891 (1994); Lebbos v. State Bar, 53 Cal.3d 37, 278 Cal.Rptr. 845, 851, 806 P.2d 317, 323 (petitioner was accorded an important constitutional right when the state bar did not consider a derogatory comment she made about a judge as he walked into a cafeteria), cert. denied, 502 U.S. 932, 112 S.Ct. 352, 116 L.Ed.2d 291 (1991); Snyder v. State Bar, 18 Cal.3d 286, 133 Cal.Rptr. 864, 867, 555 P.2d 1104, 1107 (1976) (attorney sanctioned for filing a fraudulent declaration with offensive descriptions of opposing counsel and opposing parties); Lloyd v. Superior Court, 133 Cal.App.3d 896, 184 Cal.Rptr. 467, 469-70 (1982) (as modified) (counsel’s letter to a newspaper criticizing judges was an insufficient basis for discipline under section 6068(f) because, inter alia, the court proceedings had concluded by the time the letter had been printed). Nevertheless, we are unable to discern from these cases any clearly delineated bounds to the reach of CaLBus. & Prof.Code § 6068(f).

California argues in the alternative that the enforcement policy recently adopted (i.e., on October 5, 1995) by the California State Bar Association concerning section 6068 limits the application of the statute to conduct adversely affecting the administration of justice. See Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494 n. 5, 102 S.Ct. 1186, 1191 n. 5, 71 L.Ed.2d 362 (1982) (in evaluating a facial challenge to a state law, the court should consider any limiting construction that a state court or enforcement agency has proffered). This new policy states, in relevant part:

[T]o avoid constitutional challenges, application of section 6068(f) is limited to conduct prejudicial to the administration of justice, such as conduct unbecoming a lawyer in the courtroom and comments made therein. Purely personal conduct and conduct outside the courtroom are not grounds for section 6068(f) charges. Consistent with case law, section 6068(f) charges are most defensible when narrowly applied to conduct occurring in the courtroom or in any directly related setting, like at a deposition....
Conduct which is deemed “offensive,” but not within the parameters of section 6068(f), may be addressed by directional letter emphasizing civility.

We are not persuaded by the above. California has failed to show that this new policy represents an authoritative and binding construction of section 6068(f) rather than a mere enforcement strategy, which would not be binding on the courts. See, e.g., City of Mesquite v. Aladdin’s Castle, Inc., 455 U.S. 283, 289, 102 S.Ct. 1070, 1074-75, 71 L.Ed.2d 152 (1982) (despite the city’s removal of a vague phrase from an ordinance during the pendency of a court challenge thereto, the court can still determine the constitutionality of the ordinance because “voluntary cessation of a practice” does not render it moot); National Advertising Co. v. City of Fort Lauderdale, 934 F.2d 283, 286 (11th Cir.1991) (city’s deletion of allegedly impermissible exceptions from ordinance does not render case moot, because city could later change the ordinance by reinserting the language). Accordingly, we must turn our attention to the vagueness issue.

B. Void for Vagueness

California first contends that Swan must show that section 6068(f) is vague in all of its possible applications in order to sustain a constitutional challenge on the ground of vagueness. This contention is based on a misreading of the standard announced in Hoffman Estates, in which the Court actually said:

In a facial challenge to the overbreadth and vagueness of a law, a court’s first task is to determine whether the enactment reaches a substantial amount of constitutionally protected conduct. If it does not, then the overbreadth challenge must fail. The court should then examine the facial vagueness challenge and, assuming the enactment implicates no constitutionally protected conduct, should uphold the challenge only if the enactment is imper-missibly vague in all of its applications.

455 U.S. at 494-95, 102 S.Ct. at 1191 (footnotes omitted). The Court then went on to say that, in any vagueness challenge,

perhaps the most important factor affecting the clarity that the Constitution demands of a law is whether it threatens to inhibit the exercise of constitutionally protected rights. If, for example, the law interferes with the right of free speech or of association, a more stringent vagueness test should apply.

Id. at 499, 102 S.Ct. at 1193-94 (footnote omitted). As the statute in question clearly implicates constitutionally protected conduct, viz., free speech, a facial challenge is permissible. Id.

A statute is void for vagueness when it does not sufficiently identify the conduct that is prohibited. Thus, the Fifth Amendment due process clause requires a statute to be sufficiently clear so as not to cause persons “of common intelligence ... necessarily [to] guess at its meaning and [to] differ as to its applieation[.]” Connally v. General Constr. Co., 269 U.S. 385, 391, 46 S.Ct. 126, 127, 70 L.Ed. 322 (1926). Laws that are insufficiently clear are void for three reasons: (1) To avoid punishing people for behavior that they could not have known was illegal; (2) to avoid subjective enforcement of the laws based on arbitrary or discriminatory interpretations by government officers; and (3) to avoid any chilling effect on the exercise of First Amendment freedoms. Grayned v. City of Rockford, 408 U.S. 104, 108-109, 92 S.Ct. 2294, 2298-2299, 33 L.Ed.2d 222 (1972).

Clearly, “offensive personality” is an unconstitutionally vague term in the context of this statute. See, e.g., Cohen v. California, 403 U.S. 15, 25, 91 S.Ct. 1780, 1788, 29 L.Ed.2d 284 (1971) (“disturb[ing] the peace ... by ... offensive conduct” fails to give sufficient notice of what was prohibited). As “offensive personality” could refer to any number of behaviors that many attorneys regularly engage in during the course of their zealous representation of their clients’ interests, it would be impossible to know when such behavior would be offensive enough to invoke the statute. For the same reason, the statute is “so imprecise that discriminatory enforcement is a real possibility[,]” Gentile, 501 U.S. at 1051, 111 S.Ct. at 2732 (Kennedy, J., minority opinion), and is likely to have the effect of chilling some speech that is constitutionally protected, for fear of violating the statute.

Citing Chaplinsky v. New Hampshire, 315 U.S. 568, 62 S.Ct. 766, 86 L.Ed. 1031 (1942), California argues that a statute otherwise vague on its face can still pass constitutional muster if the courts have provided a narrowing construction of it, and Cal.Bus. & Prof. Code § 6068(f) has been so construed. As already noted, however, we have found no such narrowing by the California courts of the limits to section 6068(f). In fact, California’s highest court has yet to decide whether section 6068(f) is unconstitutionally vague. See, e.g., Espinoza, 12 Cal.Rptr.2d at 690, 838 P.2d at 212; Heavey v. State Bar, 131 Cal.Rptr. 406, 409, 551 P.2d 1238, 1241 (1976) (court declined to reach the petitioner’s constitutional challenge because his conduct was sanctionable under a different rule).

California next argues that section 6068(f) has specific content because it effectively requires the type of conduct mandated by the ethical codes that bind all lawyers. See In re Sawyer, 360 U.S. at 646, 79 S.Ct. at 1388 (“a lawyer belongs to a profession with inherited standards of propriety and honor[.] ... He who would follow that calling must conform to those standards.”) (Stewart, J., concurring). At least one other court has found this line of argument to be persuasive. See In re Beaver, 181 Wis.2d 12, 510 N.W.2d 129, 133 (1994) (upholding Wisconsin’s “offensive personality” statute against a similar vagueness challenge in part because of the context in which the phrase is used and the knowledge of ethical standards imputed to attorneys). See also United States v. Hearst, 638 F.2d 1190, 1197 (9th Cir.1980) (upholding prohibition against “conduct unbecoming a member of the bar” because the phrase “refers to the legal profession’s ‘code of behavior’ and ‘lore,’ of which all attorneys are charged with knowledge”), cert. denied, 451 U.S. 938, 101 S.Ct. 2018, 68 L.Ed.2d 325 (1981).

We find a certain circuity in California’s argument. Attorneys are on notice of the reach of section 6068(f) because they are attorneys, and the reach of section 6068(f) is defined by the conduct demanded of those same attorneys. While we have little trouble with the notion that “conduct unbecoming a member of the bar” has some definable substance, we find no such limits to “offensive personality.” The cases cited by California in support of its contention that the word “offensive” in other statutes has been upheld against similar vagueness challenges are inapplicable, because what is specific in one context need not be specific in another. See, e.g., Diaz v. Watts, 189 Cal.App.3d 657, 234 Cal.Rptr. 334, 340 (1987) (upholding prohibition against “material offensive to any race, gender, nationality, religious faith or similar group” in prison context).

Because we find no merit to any of California’s remaining arguments, we conclude that Cal.Bus. & Prof.Code § 6068(f)’s provision regarding “offensive personality” is unconstitutionally vague, and its incorporation by Local Rule 2.5.1 requires us to set aside that portion of the district court’s holding in reliance thereon.

CONCLUSION

The question before us is not whether Swan displayed a deplorable lack of sensitivity, but whether the district court’s decision to impose sanctions on Swan, in addition to whatever sanction(s) the Central District’s Standing Committee on Discipline may choose to impose, can be upheld as a matter of law based on the authorities cited. For the reasons set forth above, we conclude that it cannot.

The district court’s judgment imposing sanctions against Swan under Local Rules 2.5.1 and 2.5.2 is REVERSED. The parties will bear their own costs on appeal.

FARRIS, Circuit Judge,

concurring in part, dissenting in part:

I concur in Parts I & II of the opinion. I disagree with Part III. Since § 6068(f) does not apply to Swan’s conduct, there is no reason to decide whether § 6068(f) is void for vagueness.

“The void for vagueness doctrine is concerned with a defendant’s right to fair notice and adequate warning that his conduct runs afoul of the law.” Gentile v. State Bar of Nevada, 501 U.S. 1030, 1077-78, 111 S.Ct. 2720, 2746, 115 L.Ed.2d 888 (1991). Section 6068(f) states: “Lawyers are required to abstain from all offensive personality, and to advance no fact prejudicial to the honor or reputation of a party or witness, unless required by the justice of the cause with which he or she is charged.” The prohibition against “offensive personality” should be read as limited to conduct that affects the administration of justice. Since Swan’s conduct did not affect the administration of justice, it is not covered by § 6068. We should “avoid constitutional issues when resolution of such issues is not necessary for disposition of the case.” In Re Snyder, 472 U.S. 634, 642, 105 S.Ct. 2874, 2880, 86 L.Ed.2d 504 (1985). If we hold that § 6068(f) does not apply to Swan’s conduct, we should avoid ruling on the constitutionality of § 6068(f).

“[T]here are limitations in the English language with respect to being both specific and manageably brief, .... [and statutes] will not be struck down as vague, even though marginal cases could be put where doubts arise.” Arnett v. Kennedy, 416 U.S. 134, 159, 94 S.Ct. 1633, 1647, 40 L.Ed.2d 15 (1974), citing CSC v. Letter Carders, 413 U.S. 548, 578-79, 93 S.Ct. 2880, 2897, 37 L.Ed.2d 796 (1973). The vagueness doctrine is based on a rough idea of fairness. Id. It is not meant to convert into a constitutional dilemma the difficulty involved in drafting a professional code of conduct general enough to cover the variety of attorney misconduct, yet sufficiently specific to provide fair warning.

The Supreme court has recognized that lawyers may be subjected to restrictions on speech that an ordinary citizen cannot. “[T]he speech of lawyers representing clients in pending cases may be regulated under a less demanding standard[.]” Gentile, 501 U.S. at 1074, 111 S.Ct. at 2744. “Even in an area far from the courtroom and the pen-dency of a case ... our decisions ... have not suggested that lawyers are protected by the First Amendment to the same extent as those engaged in other businesses.” Id. at 1073, 111 S.Ct. at 2744 (referring to advertising restrictions).

Further, attorneys are charged with a knowledge of the legal profession’s “lore” or “code of behavior.” In United States v. Hearst, 638 F.2d 1190 (9th Cir.1980), the court held that Federal Rule of Appellate Procedure 46, which allows a court to sanction an attorney for “conduct unbecoming a member of the bar,” is not unconstitutionally vague. “[This language] refers to the profession’s ‘code of behavior’ and ‘lore’, of which all attorneys are charged with knowledge[.]” Id. at 1197. The term “offensive personality” is also part of this ‘lore’ or ‘code of behavior’ that attorneys are charged with knowing. See Charles Wolfam, Modern Legal Ethics (1986) at 609 (“Oral altercations, between lawyers characterized by derogatory personal comments are traditionally euphem-ized by the legalese ‘offensive personality’.”) The dangers of vagueness-lack of fair notice and adequate warning — are lessened with respect to the regulation of the legal profession because a lawyer will understand the context of the statutory language within the code of behavior that all lawyers are charged with knowing.

The majority rejects this argument by finding “a certain circuity” in it. The majority holds that: “While we have little trouble with the notion that ‘conduct unbecoming a member of the bar’ has some definable substance, we find no such limits to ‘offensive personality.’ ” The rationale offered to support this distinction is that “what is specific in one context need not be specific in another.” I find this rationale inadequate to support the distinction.

      . Swan copied the attachment from “No Way to Treat a Lawyer,” an article from the December 1992 issue of California Lawyer that discussed negative gender stereotyping of female attorneys in movies and television.

      . That Rule reads, in relevant part: “Rules of Professional Conduct of the State Bar of California-State Bar Act. Each attorney shall ... comply with the standards of professional conduct required of members of the State Bar of California and contained in the State Bar Act[.] ... Those statutes, rules and decisions are hereby adopted as the standards of professional conduct of this Court.”

      . That Rule reads in its entirety: “Other Standards. No attorney shall engage in any conduct which degrades or impugns the integrity of the Court or in any manner interferes with the administration of justice therein.”

      . See 28 U.S.C. § 2403(b); Fed.R.Civ.P. 24(c); Fordyce v. City of Seattle, 55 F.3d 436, 442 (9th Cir.1995).

      . That Rule reads in its entirety: “Jurisdiction of Court. Any attorney who appears for any purpose submits to the discipline of this Court with respect to conduct of the litigation.”

      . Section 6068(f) of California’s Business and Professions Code reads, in relevant part: “It is the duty of an attorney ... [t]o abstain from all offensive personality!)]”

      . The government also contends that, by failing to present this jurisdictional argument to the district court, Swan has waived his right to pursue it on appeal. Regardless of whether or not the issue turns on a question of waivable personal jurisdiction or nonwaivable subject matter jurisdiction, see Fed.R.Civ.P. 12(h)(1), (3), we note that the matter involves a question of law in which the facts are not in dispute. Accordingly, we elect to reach the merits of Swan’s argument. See New Hampshire Ins. Co. v. Vieira, 930 F.2d 696, 702 (9th Cir.1991).

      . Pursuant to the Local Rules, an attorney cannot appear before the district court unless he or she is first "admitted to the Bar of or permitted to practice before this Court.” Local Rule 2.1. The nature of this "admission or permission” Rule is laid out in Local Rule 2.2. Admission to the Central District Bar requires that the attorney be a person of good moral character who is an active member of, and in good standing with, the State Bar of California. Local Rule 2.2.1. An attorney not otherwise eligible for admission to the Central District Bar may nonetheless be granted permission to practice before the district court, either on a pro hac vice basis or for the limited purpose of representing the United States or its agencies, provided certain conditions not here relevant are first met. See Local Rule 2.2.3 (Pro Hac Vice Appearance); Local Rule 2.2.4 (Attorneys for the United States).

      . The argument as framed is implied in Swan's contention that the district court's application of Local Rule 2.5.2 to the facts of his case amounted to a violation of his First Amendment rights. Because resolution of this1 particular constitutional question is unnecessary to the disposition of this issue, we decline to reach the merits of Swan’s argument on this point. See In re Snyder, 472 U.S. 634, 642-43, 105 S.Ct. 2874, 2879-80, 86 L.Ed.2d 504 (1985). Cf. Standing Comm. on Discipline v. Yagman, 55 F.3d 1430, 1442, 1443 (9th Cir.1995) (attorney speech may not be sanctioned absent showing that conduct was “highly likely” to prejudice administration of justice).

      . In a general sense, all manifestations of gender bias related in any way to the adjudicative process affect the administration of justice. See, e.g., Ninth Circuit Gender Bias Task Force, Final Report, "The Effects of Gender in the Federal Courts”, 67 S. Cal. L.Rev. 745 (1993). Equally clearly, however, the courts cannot punish every expression of gender bias by attorneys without running afoul of the First Amendment. Rule 2.5.2’s prohibition of conduct which "interferes with the administration of justice” must be given an interpretation consistent with First Amendment limits on the Court’s power.

      . The government effectively ignored this contention by arguing that the district court’s imposition of sanctions could be upheld on an alternative, nonconstitutional basis, viz., Local Rule 2.5.2. Because of our conclusion that the district court’s imposition of sanctions cannot be upheld under Rule 2.5.2, and owing to the fact that the sanctions rested in part on Rule 2.5.1, which incorporates section 6068(f), we turn to Swan's argument that the statute is unconstitutionally vague. See Jean v. Nelson, 472 U.S. 846, 854, 105 S.Ct. 2992, 2996-97, 86 L.Ed.2d 664 (1985) (federal courts must dispose of nonconsti-tutional grounds for decision prior to reaching constitutional questions). Because we conclude that Cal. Bus. & Prof. § 6068(f) is unconstitutionally vague, see infra, we decline to discuss Swan’s overbreadth argument.

      . Moreover, if the judicial narrowing claimed by California was so obvious, we must ask ourselves how a talented First Assistant United States Attorney for the Central District of California and a learned California federal district court judge could have both missed that interpretation and concluded that section 6068(f) did apply to Swan's conduct.

      . See In re Beaver, 181 Wis.2d 12, 510 N.W.2d 129, 133-34 (1994), where the Wisconsin Supreme Court held that a similar regulation prohibiting “offensive personality” is constitutional. "A greater degree of flexibility and breadth is permitted in respect to the rules and standards by which this court regulates the legal profession. ... The context in which that provision is promulgated and the cases to which it has been applied render the term understandable by a person who has been licensed as an officer of the court.” Id.