author: KLEINFELD, Circuit Judge:

text:
    Keith McHENRY; Eric Warren, Plaintiffs-Appellants, v. Louise RENNE; John Willett; Charles Gallman; Frank Reed; Mary Burns; Timothy Hettrich; (Fnu) Blackwell; Edward Garcia; Mark Hernandez; Robert Battaglia; Robert J. Brodnik; S. Quadrelli; R. Farris, # 12212; John Does 1-10; Dirk Beijen; Richard Hongisto; Russell Matli # 1751 and the City and County of San Francisco, Defendants-Appellees.
    No. 94-15179.
    United States Court of Appeals, Ninth Circuit.
    Argued and Submitted June 14, 1995.
    Decided May 28, 1996.

      Randy Baker, Berkeley, California, for plaintiffs-appellants.
    Margaret W. Baumgartner, Deputy City Attorney, San Francisco, California, for defendants-appellees.
    Before: GOODWIN, FARRIS and KLEINFELD, Circuit Judges.
   KLEINFELD, Circuit Judge:

The district judge dismissed plaintiffs’ complaint under Federal Rules of Civil Procedure 8, 12, and 41 because it did not contain a short and plain statement of their claims for relief, did not give defendants a fair opportunity to frame a responsive pleading, and did not give the court a clear statement of claims. The district court had given plaintiffs three opportunities to amend the complaint in accord with the judge’s instructions, but the third amended complaint restated the prior ones without curing their deficiencies. We affirm.

FACTS

We take the facts from plaintiffs’ third amended complaint as best we can. Because it is fifty-three pages long, and mixes allegations of relevant facts, irrelevant facts, political argument, and legal argument in a confusing way, we cannot be sure that we have correctly understood all the averments. If we have not, plaintiffs have only themselves to blame.

According to the complaint, plaintiff McHenry made it a practice to give out free food and political literature in city parks. The Mayor, City Attorney, Chief of Police, and other public officials and police officers in San Francisco conspired to harass McHen-ry with unreasonable arrests on such charges as failure to obtain the permits required to display signs in parks or to distribute food to the public. McHenry alleges that he was physically assaulted by, or at the direction of, various defendants and charged with driving on a suspended license.

The City obtained a preliminary injunction in the California Superior Court prohibiting McHenry from distributing food without the necessary health and park permits. He alleges that the City changed its regulations in bad faith to deny him a permit and that the City’s initiation of legal proceedings charging McHenry with contempt for violating the state injunction by distributing food without a permit was in bad faith. The complaint also alleges that plaintiff Warren had been protesting the police treatment of McHenry and suffered a retaliatory arrest as a result.

Plaintiffs initial complaint was thirty-five pages and alleged various causes of action under 42 U.S.C. § 1983. Plaintiffs did not serve this complaint, but instead filed an amended complaint dropping Andrea McHenry as a plaintiff and adding various defendants.

The thirty-seven page amended complaint is mostly an extended narrative of the details of the various activities of plaintiff McHenry, and his numerous alleged arrests. At the end of his complaint, plaintiff McHenry purports to set out two counts, one for damages and one for declaratory and injunctive relief. McHenry’s claims are set out in a single sentence thirty lines long, alleging numerous and different violations of rights, without any specification of which of the twenty named defendants or John Does is liable for which of the wrongs. Another, similar, paragraph lays out the claims on behalf of plaintiff Warren. The only specificity given is that no punitive damages are sought from the City of San Francisco and no damages are sought from defendant Superior Court of California. This complaint was part of a long history of complaints against the City and County of San Francisco and its employees, from elected officials to gardeners, claiming that each arrest of McHenry was part of a broad conspiracy to interfere with his constitutional rights.

The City moved to dismiss for failure to comply with Federal Rules of Civil Procedure 8(a) and 12(e). It moved to dismiss some of the apparent claims on the basis of the statute of limitations, absolute and qualified immunity, collateral estoppel, and the State Tort Claims Act.

The district judge wrote a thorough and careful order dismissing this first amended complaint without prejudice. The court particularly noted the impossibility of figuring out which defendants were allegedly liable for which wrongs, and noted the obvious bars to a number of the apparent claims:

Plaintiffs have made sweeping allegations against the city and various government employees, but the complaint frequently does not make clear connections between specific allegations and individual defendants. Defendants charge that the vague wording of the complaint makes it excessively difficult for individual defendants to formulate proper defenses and subject the city and others to unnecessary discovery.
Plaintiffs complaint does provide specific allegations of fact to support the claim that defendants have intentionally deprived plaintiffs of their constitutional rights. Nevertheless, as the complaint stands now it does not properly notify individual defendants of the allegations with which they are charged.' Given the number and diversity of named defendants and the breadth of the allegations, claims which vaguely refer to “defendants” or “other responsible authorities” will not suffice. Defendants’ motion for a more definite statement pursuant to F.R.C.P. 12(e), is granted, and plaintiffs are ordered to file a second amended complaint which clearly and concisely explains which allegations are relevant to which defendants.
Many of the named defendants may be able to assert absolute or qualified immunity as a defense, but unfortunately plaintiffs’ complaint does not provide enough detail for the court to determine the appropriateness of these defenses at this time. For this reason, defendants’ motion to dismiss on the immunity grounds is denied without prejudice. Defendants may refile the motion once plaintiffs have submitted a second amended complaint.

The court also ordered plaintiffs to show cause why defendants not served within 120 days should not be dismissed under Federal Rule of Civil Procedure 4(j). Subsequently, the court dismissed the claims against those defendants where plaintiffs had not shown any substantial reasons for late service, but denied the motions to dismiss where plaintiffs had shown good cause for the delay.

Plaintiffs then filed a second amended complaint, which contained identically argumentative and prolix allegations, but-added a section at the end in which the conduct attributed to each defendant was outlined. The complaint was now forty-three pages. The section naming particular defendants linked them up with parts of the narrative, but still did not tell them of what constitutional torts they were accused.

The court again dismissed without prejudice. The district judge wrote another careful order, this time giving plaintiffs specific instructions on how to rewrite their complaint so that it could be adjudicated:

In its order of October 8, 1992, this court dismissed plaintiffs first amended complaint without prejudice because it failed to provide the individual defendants with proper notice of the claims being asserted against them and, as such, did not afford defendants a fair opportunity to assert immunity defenses. Plaintiffs response to this order, the second amended complaint, largely mirrors the narrative ramblings of the first amended complaint except that it also includes a section entitled “Summary of Allegations Against Individual Defendants.” Plaintiffs contend that this section of their otherwise deficient complaint ameliorates any problems which defendants may have had in formulating qualified immunity defenses. Defendants have now moved to dismiss the second amended complaint, reasserting the argument that the complaint is too vague to enable defendants to frame a responsive pleading, FRCP 12(e),. and al' "natively submitting that all of the in...vidual defendants are entitled to qualified or absolute immunity from plaintiffs’ claims.
Plaintiff’s complaint fails to comply with the court’s directive to explain clearly how each defendant is implicated by plaintiffs’ allegations. For no apparent reason and though they are represented by counsel, plaintiffs have consistently eschewed the traditional pleading style which prescribes a “short and plain statement” of basic allegations followed by an outline of each legal claim based on specific allegations of fact. Instead, plaintiffs have re-submitted their complaint in its original novelized form, with only their new “Summary” directed at delineating their allegations. While plaintiffs’ “Summary” does attempt to link plaintiffs’ fact allegations to specific defendants, it does nothing to inform defendants of the legal claims being asserted. In wholly inadequate fashion, plaintiffs present their legal claims in a mere two paragraphs in the form of an undifferentiated list near the end of the forty-three page complaint. See Second Amended Complaint, ¶¶ 94 and 104.
Because plaintiffs’ second amended complaint still does not provide defendants with a fair opportunity to frame a responsive pleading, defendants’ motion to dismiss pursuant to FRCP 12(e) is GRANTED. Plaintiffs shall have one last opportunity to file a proper complaint which states clearly how each and every defendant is alleged to have violated plaintiffs’ legal rights. See Branch v. Tunnell, 937 F.2d 1382, 1386 (9th Cir.1991). In conforming with this order, plaintiffs would be well advised to edit or eliminate their twenty-six page introduction and focus on linking their factual allegations to actual legal claims. The purpose of the court system is not, after all, to provide a forum for storytelling or political griping, but to resolve legal disputes.
Unfortunately, it is impossible properly to consider defendants’ immunity defenses at this time, because immunity will attach only for specific claims. After plaintiffs have submitted their final pleading, the court will reconsider defendants’ motion to dismiss based on immunity.

SO ORDERED.

The complaint is, as the district court said, mostly, “narrative ramblings” and “storytelling or political griping.” It is not in what the district court called “the traditional pleading style which prescribes a short and plain statement,” and it does not provide defendants notice of what legal claims are asserted against which defendants.

Plaintiffs did not obey the judge’s instructions to file a complaint “which states clearly how each and every defendant is alleged to have violated plaintiffs’ legal rights” and his instructions to “edit their twenty-six page introduction and focus on linking their factual allegations to actual legal claims.” Instead, they filed a fifty-three page third amended complaint repeating the vices of the second amended complaint. Instead of editing their twenty-six page introduction, plaintiffs expanded it. The complaint still reads like a magazine story instead of a traditional complaint. This time, the claims for relief designated legal theories on which the relief was based, but the plaintiffs did not specify which defendants were liable on which of the claims. Instead, each claim says “defendants’ ” conduct violated various rights of plaintiffs, without saying which defendants.

The district court had said in its order dismissing the second amended complaint that plaintiffs would have “one last opportunity to file a proper complaint.” After receiving the third amended complaint, the judge noted that it had been submitted “paying little heed to the court’s previous orders.” The new section spelling out what the claims are “hardly improves matters, as each of the newly delineated claims incorporates 122 paragraphs of confused factual allegations and then merely makes perfunctory reference to a legal claim said to arise from these undifferentiated facts.”

The judge was concerned, however, that dismissal with prejudice based on the plaintiffs failure to comply with prior orders “might unfairly punish plaintiffs for their counsel’s ineptitude.” The judge therefore referred the case to a magistrate for preparation of a “report which assesses the viability of plaintiffs’ claims in light of defendants’ motion to dismiss.”

The magistrate wrote a thirty-page report, recommending dismissal of the complaint on the ground that plaintiffs had failed to comply with the court’s order dismissing the second amended complaint. The magistrate also reported that most, but not all, of the claims would be dismissed, even aside from this failure to comply with the court order because they failed to state claims upon which relief could be granted and on other grounds. The magistrate also noted that “no attempt is made to match up the specific factual allegations and the specific legal claims to a specific defendant. The result is that defendants and this court are literally guessing as to what facts support the legal claims being asserted against certain defendants.”

The court then dismissed plaintiffs’ complaint with prejudice, and noted that “the prior complaints presented long-winded tales of municipal conspiracy and police misconduct, but failed properly to notify the individual defendants of the legal claims they faced_ The larger part of this new complaint restates the second amended complaint without curing any of that prior complaint’s deficiencies.” The judge decided that “another order to dismiss with leave to replead would serve no purpose but to exacerbate the cost of this action to all concerned parties,” and entered the dismissal.

ANALYSIS

We review dismissal of a complaint with prejudice for failure to comply with a court’s order to amend the complaint to comply with Rule 8 for abuse of discretion. Nevijel v. North Coast Life Ins. Co., 651 F.2d 671, 673-74 (9th Cir.1981); Schmidt v. Herrmann, 614 F.2d 1221, 1223-24 (9th Cir.1980). The judge in this case dismissed the ease pursuant to Federal Rule of Civil Procedure 41(b) for violation of a court order. The court order was pursuant to Federal Rule of Civil Procedure 8(e)(1), requiring that “each averment of a pleading shall be simple, concise, and direct.” It was also pursuant to Rule 12(e), authorizing the court to strike a pleading or make such other order as it deems just, if a complaint “is so vague or ambiguous that a party cannot reasonably be required to frame a responsive pleading,” and the judge has already issued an order for a more definite statement which order was not complied with. The district judge’s evaluation of whether the plaintiff complied with his order “is entitled to considerable weight.” Von Poppenheim v. Portland Boxing & Wrestling Comm’n, 442 F.2d 1047, 1051 (9th Cir.1971).

The Federal Rules require that averments “be simple, concise, and direct.” The drafters of the rules anticipated that some lawyers and judges, particularly in code pleading states with different rules, might not understand just what was meant. Accordingly, Federal Rule of Civil Procedure 84 provided for an official Appendix of Forms “intended to indicate the simplicity and brevity of statement which the rules contemplate.” The complaints in the official Appendix of Forms are dramatically short and plain. For example, the standard negligence complaint consists of three short paragraphs:

1. Allegation of jurisdiction.
2. On June 1, 1936, in a public highway called Boylston Street in Boston, Massachusetts, defendant negligently drove a motor vehicle against plaintiff, who was then crossing said highway.
3. As a result plaintiff was thrown down and had his leg broken, and was otherwise injured, was prevented from transacting his business, suffered great pain of body and mind, and incurred expenses for medical attention and hospitalization in the sum of one thousand dollars.
Wherefore plaintiff demands judgment against defendant in the sum of _ dollars and costs.

Fed.R.Civ.P. Form 9. This complaint fully sets forth who is being sued, for what relief, and on what theory, with enough detail to guide discovery. It can be read in seconds and answered in minutes.

By contrast, the complaint in the case at bar is argumentative, prolix, replete with redundancy, and largely irrelevant. It consists largely of immaterial background information. For example, the complaint explains that plaintiff McHenry cofounded his political organization in Cambridge, Massachusetts in 1980, which is irrelevant. It explains that McHenry’s organization adheres to “the principles of non-violence developed by Gandhi and King,” also irrelevant. It tells what brand of motorbikes the police officers who arrested people rode, and points out that a journalist was injured by a police officer at one of the mass arrests at Food Not Bombs distributions. It describes in detail settlement negotiations which Food Not Bombs had at various times and in various other law suits, telhng what a United States district judge told the City he was considering in a settlement conference in another lawsuit. It accuses persons other than the defendants of having “falsely told members of the press” about an injunction. The complaint says, and illustrates with a dramatic illustration of the mayor rising from his desk chair, that Mayor Agnos seemed quite angry when he met with McHenry.

None of this material has any resemblance to the sample pleadings in the official Appendix of Forms. Rather than set out the basis for a lawsuit, the pleading seems designed to provide quotations for newspaper stories. Despite all the pages, requiring a great deal of time for perusal, one cannot determine from the complaint who is being sued, for what relief, and on what theory, with enough detail to guide discovery.

Plaintiffs urge that heightened standards of pleading applicable to some of their constitutional tort claims required the kind of pleading they filed. We assume without deciding that the claims plaintiffs sought to plead were subject to a heightened pleading standard. Compare Leatherman v. Tarrant County Narcotics Unit, 507 U.S. 163, 113 S.Ct. 1160, 122 L.Ed.2d 517 (1993) (rejecting a heightened pleading standard in civil rights cases alleging municipal liability as inconsistent with a liberal system of notice pleading); with Branch v. Tunnell, 937 F.2d 1382, 1387 (9th Cir.1991) (adopting a heightened pleading standard in cases where subjective intent is an element of a constitutional tort action); Branch v. Tunnell, 14 F.3d 449, 455-57 (9th Cir.1994).

A heightened pleading standard is not an invitation to disregard’s Rule 8’s requirement of simplicity, directness, and clarity. The “particularity” requirement of a heightened pleading standard, requiring “nonconclusory allegations containing evidence of unlawful intent,” as opposed to “bare allegations of improper purpose,” has among its purposes the avoidance of unnecessary discovery. Branch, 937 F.2d at 1386. If the pleading contains prolix evidentiary averments, largely irrelevant or of slight relevance, rather than clear and concise aver-ments stating which defendants are liable to plaintiffs for which wrongs, based on the evidence, then this purpose is defeated. Only by months or years of discovery and motions can each defendant find out what he is being sued for. The expense and burden of such litigation promotes settlements based on the anticipated litigation expense rather than protecting immunity from suit. Judgment and discretion must be applied by district judges to determine when a pleading subject to a heightened pleading standard has violated Rule 8, but there is nothing unusual about a standard requiring judges to exercise judgment and discretion. We have affirmed dismissal with prejudice for failure to obey a court order to file a short and plain statement of the claim as required by Rule 8, even where the heightened standard of pleading under Rule 9 applied. Schmidt v. Herrmann, 614 F.2d at 1223-24. In Schmidt, as in the case at bar, the very prolixity of the complaint made it difficult to determine just what circumstances were supposed to have given rise to the various causes of action.

Dismissal with prejudice of a complaint under Rule 41(b) is a harsh remedy, so we look to see whether the district court might have adopted less drastic alternatives. Nevijel v. North Coast Life Insurance, 651 F.2d at 674. The district judge should first consider less drastic alternatives, but “need not exhaust them all before finally dismissing a case.” Von Poppenheim, 442 F.2d at 1054; Nevijel, 651 F.2d at 674. The district judge in the case at bar had used less drastic alternatives, such as permitting plaintiffs to replead twice. He considered the less drastic alternative of allowing plaintiffs to replead again, but decided based on plaintiffs’ violation of his previous orders that repleading would be futile.

The “harshness of a dismissal with prejudice is directly proportionate to the likelihood that plaintiff would prevail if permitted to go forward to trial. Since harshness is a key consideration in the district judge’s exercise of discretion, it is appropriate that he consider the strength of a plaintiffs ease if such information is available to him before determining whether dismissal with prejudice is appropriate.” Von Poppenheim, 442 F.2d at 1053 n. 4. In the case at bar, the district judge did consider the strength of the plaintiffs’ case. He determined that much of the complaint failed to state claims on which relief could be granted, or would be barred by statutes of limitation and immunities. We do not suggest that the referral to the magistrate and the extensive, thorough analysis performed by the magistrate were prerequisites for dismissal. They amounted to an especially careful approach to determining that in this particular case, dismissal with prejudice was really not very harsh, because if the complaint were not dismissed under Rule 8, most of it would be dismissed anyway without ever reaching the merits.

The burden imposed by plaintiffs on defendants in related litigation was appropriately considered by the district court. The district court noted that plaintiffs had filed a 108 page complaint and alleged 80 causes of action in a case against the City in state court, McHenry v. Agnos, San Francisco Superior Court Case No. 941976, and a 66 page Fourth Amended complaint in another related state case. McHenry v. Agnos, San Francisco Superior Court Case No. 927-377. This kind of history “supports the conclusion that the trial court’s dismissal of this action was not an abuse of discretion,” in part because “appellees herein have had to spend a large amount of time and money defending against [appellants] poorly drafted proceedings in this and related actions.” Nevijel, 651 F.2d at 674-75.

The propriety of dismissal for failure to comply with Rule 8 does not depend on whether the complaint is wholly without merit. The magistrate was able to identify a few possible claims which were not, on their face, subject to being dismissed under Rule 12(b)(6). Rule 8(e), requiring each averment of a pleading to be “simple, concise, and direct,” applies to good claims as well as bad, and is a basis for dismissal independent of Rule 12(b)(6). See Nevijel, 651 F.2d at 673; Von Poppenheim, 442 F.2d at 1053 n. 4.

Plaintiffs urge that the district court order governing their second amended complaint, which they violated, was inconsistent with McCalden v. California Library Ass’n, 955 F.2d 1214, 1223-24 (9th Cir.1990). In the order dismissing the second amended complaint, the judge instructed the plaintiffs to “file a proper complaint which states clearly how each and every defendant was alleged to have violated plaintiffs’ legal rights.” This was a reformulation of the instruction the judge gave when he dismissed the first amended complaint, that the plaintiffs file a pleading “which clearly and concisely explains which allegations are relevant to which defendants.” We held in McCalden that a plaintiff “is not required to state the statutory or constitutional basis for his claim, only the facts underlying it.” Id. at 1223.

There are two reasons why plaintiffs’ argument from McCalden is wrong. First, the defect to which the judge was alluding was failure to say which wrongs were committed by which defendants, not failure to identify the statutes or constitutional provisions making the conduct wrong. Second, even though a complaint is not defective for failure to designate the statute or other provision of law violated, the judge may in his discretion, in response to a motion for more definite statement under Federal Rule of Civil Procedure 12(e), require such detail as may be appropriate in the particular case, and may dismiss the complaint if his order is violated. Fed.R.Civ.P. 41(b).

Prolix, confusing complaints such as the ones plaintiffs filed in this ease impose unfair burdens on litigants and judges. As a practical matter, the judge and opposing counsel, in order to perform their responsibilities, cannot use a complaint such as the one plaintiffs filed, and must prepare outlines to determine who is being sued for what. Defendants are then put at risk that their outline differs from the judge’s, that plaintiffs will surprise them with something new at trial which they reasonably did not understand to be in the case at all, and that res judicata effects of settlement or judgment will be different from what they reasonably expected. “[T]he rights of the defendants to be free from costly and harassing litigation must be considered.” Von Poppenheim at 1054.

The judge wastes half a day in chambers preparing the “short and plain statement” which Rule 8 obligated plaintiffs to submit. He then must manage the litigation without knowing what claims are made against whom. This leads to discovery disputes and lengthy trials, prejudicing litigants in other case who follow the rules, as well as defendants in the case in which the prolix pleading is filed. “[T]he rights of litigants awaiting their turns to have other matters resolved must be considered_” Nevijel, 651 F.2d at 675; Von Poppenheim, 442 F.2d at 1054. While commendable in its consideration for plaintiffs in this case, the magistrate’s thorough analysis and thirty-page report, and the judge’s study of the report, took a great deal of time away from more deserving litigants waiting in line.

Appellants also argue that various substantive bases for dismissal of some of their claims were mistaken. We need not reach those issues, because the district court did not abuse its discretion in dismissing the entire complaint for violation of Rule 8 and of the court’s orders.

“The forms of action we have buried, but they still rule us from their graves.” F.W. Maitland, The Forms of Action At Common Law 2 (A.H. Chaytor and W.J. Whittaker ed.1965)(1909). As Maitland explains, there are good reasons why the forms of action still shape pleadings, though the rules no longer require pleadings to conform to the ancient forms. Pleadings of the kind shaped by the traditional forms enable determination of the competence of the court, the appropriate procedures for the particular type of adjudication, the type of trial, and the remedies available. Id. at 2-3. Something labeled a complaint but written more as a press release, prolix in evidentiary detail, yet without simplicity, conciseness and clarity as to whom plaintiffs are suing for what wrongs, fails to perform the essential functions of a complaint.

AFFIRMED.


source: Caselaw Access Project

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Linda Agbayani TAGALICUD, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Francisco Agustin TAGALICUD, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Michael Kauilani HOSE, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Tarcila Tagalicud HOSE, Defendant-Appellant.
    Nos. 95-10201 to 95-10204.
    United States Court of Appeals, Ninth Circuit.
    Argued and Submitted March 12, 1996.

    Decided May 29, 1996.

      Donna M. Gray, Assistant Federal Public Defender, Honolulu, Hawaii, for defendant-appellant Linda Agbayani Tagalicud.
    Stephen M. Shaw, Honolulu, Hawaii, for defendant-appellant Francisco Agustín Ta-galicud.
    Elizabeth Fisher (Argued), and Carmen DiAmore-Siah (On the Briefs), Honolulu, Hawaii, for defendant-appellant Michael Kauila-ni Hose.
    Johnaaron Murphy Jones, Honolulu, Hawaii, for defendant-appellant Tarcila Tagali-cud Hose.
    Omer G. Poirier, Assistant United States Attorney, Honolulu, Hawaii, for plaintiff-ap-pellee.
    Before THOMPSON, KLEINFELD and TASHIMA, Circuit Judges.

       95-10204 was submitted on the briefs. All other appeals were argued.

   KLEINFELD, Circuit Judge:

INTRODUCTION

The essential question raised by this case is how a judge must instruct in a multi-defendant case in which the defendants are charged with similar marriage fraud offenses.

FACTS

Two Hawaiians, Linda Agbayani and her 18 year-old son Michael Hose, married two individuals in the Philippines, Francisco Ta-galicud and his sister Tardía Tagalicud. The government presented evidence that these marriages were entered into after minimal acquaintance, so that the Hawaiians could get money and the Filipinos visas. The spouses never actually met before the Hawaiians’ brief trip to the Philippines, where they were married. When the 18 year-old boy’s friends asked him why he was married, he said “oh, it’s not like for real,” it’s “for money.”

On the other hand, the four defendants presented evidence that they really did mean to be married. They showed the jury a video tape of the two-couple marriage ceremony. It appears to be in church, with a priest officiating, and a substantial number of family members, friends, and acquaintances watching. Then the video tape moves to a reception, with ordinary wedding customs and a large crowd eating and drinking. The defendants also presented letters they had written each other during the six months before the wedding. After the wedding, the Filipino wife of the 18 year-old boy had moved for a temporary restraining order against him in Hawaii, claiming that he hit her, which sounds more consistent with spouses living together, albeit unhappily, than with a commercial transaction, money for marriage license and visa, after which the parties go their separate way.

The government presented evidence showing that after the spouses had all arrived in the United States, the mother and her 18 year-old son lived together, and the brother and sister lived together at their aunt’s house. In addition, the government presented the 18-year-boy’s surreptitiously taped remarks above, and another in which he said “one year before you go, you guys gotta ■write letters to each other .... and back and forth and stuff. Then when you go to the immigration office you show ‘em all the letters that you guys fell in love and shit.”

All four of the spouses were indicted for conspiracy to defraud the Immigration and Naturalization Service through sham marriages and false statements in immigration documents. The alleged false statements were that the 18 year-old lived at a separate address from his mother, and that his mother was employed and had no dependents. In addition, the individuals were charged with entering into sham marriages in order to evade the immigration laws.

ANALYSIS

All four defendants were convicted, and appeal. Though numerous grounds are raised, our reversal on one of the grounds obviates the need to deal with most of the others.

A. Sufficiency of Evidence.

We first take up the sufficiency of evidence challenges, because they would lead to reversal without retrial. The test of sufficiency is “whether, after reviewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” United States v. Vgeri, 51 F.3d 876, 879 (9th Cir.1995) (quotations omitted).

Michael Kauilani Hose argues that the evidence was insufficient to establish the requisite mens rea for conspiracy. We disagree. The jury could have concluded that he lied about his address, and lied about taking money for the marriage, in order to cover up immigration fraud. The evidence was sufficient. The jury could have inferred that he would not have lied, had he not had the requisite intention to commit the underlying offense.

Tardía Tagalicud Hose argues that she was not adequately identified in court. Her own testimony in court, however, identified her as a participant in the marriage, so the jury had evidence from which it could conclude that she was the defendant charged. Her sufficiency challenge also fails.

B. Jury Instructions.

Reversal is necessary because of error in jury instructions. The indictment charged the defendants as follows:

Linda Agbayani Tagalicud
Count I — Conspiracy, 18 U.S.C. § 371
Count II — Marriage Fraud, 8 U.S.C. § 1325(b)
Count IV — False Immigration Document, 18 U.S.C. § 1546
Count VI — False Immigration Document, 18 U.S.C. § 1546
Francisco Agustín Tagalicud
Count I — Conspiracy, 18 U.S.C. § 371
Count II — Marriage Fraud, 8 U.S.C. § 1325(b)
Michael Kauilani Hose
Count I — Conspiracy, 18 U.S.C. § 371
Count III — Marriage Fraud, 8 U.S.C. § 1325(b)
Count V — False Immigration Document, 18 U.S.C. § 1546
Tarcila Tagalicud Hose
Count I — Conspiracy, 18 U.S.C. § 371
Count III — Marriage Fraud, 8 U.S.C. § 1325(b)

The district judge explained the elements of conspiracy in terms of “all four defendants.” No challenge is made to the conspiracy instruction itself, although the instructions are challenged as a whole.

For the remaining counts, the district judge did not sort out the charges by defendant, and did not explain what had to be proved against each defendant for each count. Instead, the judge described all of the crimes in terms of the charges against Linda Agbayani Tagalicud. The jury was not given any instructions along the lines of “in order to find Francisco Agustín Tagalicud guilty of x, you must find a, b and c.” The jury was given a copy of the indictment, oral instructions telling them what had to be proved against Linda Tagalicud on each count with which she was charged, and no express instructions at all, except for the conspiracy instruction, relating to the other three defendants. The judge did not explain which parts of the instructions relating to Linda Tagalicud applied to which charges against any of the other three defendants.

Appellants do not challenge the correctness of the instructions as to Linda Tagali-cud. Their argument is that the court erred by instructing only as to her, and leaving it to the jury to infer what had to be proved against each of the other defendants.

After the judge gave his oral instructions, but before the jury retired to deliberate, the lawyers for the government and defendants objected to the court’s failure to instruct expressly about the defendants other than Linda Agbayani Tagalicud. They pointed out the possibility of jury mistake. The judge decided not to give additional instructions, because he had instructed that “the cases against each defendant should be considered separately and individually.”

I. The Defendants Other Than Linda Ta-galicud.

As to Francisco Agustín Tagalicud, Michael Kauilani Hose, and Tarcila Tagalicud Hose, reversal is required, because there were no instructions telling the jury what it had to find in order to convict them. We review de novo whether a jury instruction misstates elements of a crime. United States v. Stein, 37 F.3d 1407, 1409 (9th Cir.1994). Arguably this is an issue of “formulation of jury instructions,” which we review for abuse of discretion, to determine “ “whether or not the instructions taken as a whole were misleading or represented a statement inadequate to guide the jiffy’s deliberations.’ ” Powell, 955 F.2d at 1210 (quoting United States v. Kessi, 868 F.2d 1097, 1101 (9th Cir.1989)). We need not decide whether the instructions are more properly viewed as failing to state the elements of the crimes against the three defendants other than Linda Agbayani Tagalicud, or as a formulation which stated the elements but did not expressly state what had to be proved for which charges against which defendants. Either way, reversal is required. “Failing to instruct jurors about an essential element of a crime is constitutional error because it lets them convict without finding the defendant guilty of that element.” United States v. Caldwell, 989 F.2d 1056, 1060 (9th Cir.1993). “The jury must receive clear instruction as to what the unlawful conduct is that the government must prove.” United States v. Powell, 955 F.2d 1206, 1213 (9th Cir.1991).

The government argues that the instructions did not misstate or omit any elements, because each of the crimes with which the other three defendants were charged contained the same elements as one of the crimes with which Linda Tagalicud was charged. Thus, for example, although none of the other three defendants was the subject of an instruction about marriage fraud, Linda Tagalicud was, so the jury could have inferred that for the government to convict any of them, it would have to prove the same things that it had to prove against Linda Tagalicud. Likewise, according to the government, the jury could have inferred what had to be proved on each of the other charges against each of the other defendants.

It is extremely difficult to figure out what the government had to prove on each count against each defendant without going through the indictment carefully, preparing a chart as we did to prepare this opinion, and then translating the appropriate elements from the Linda Tagalicud instructions to the factually different but legally parallel charges against the other three defendants. That intellectual exercise is one which the court should have performed for the jury. The challenge was compounded for the jury, because the instructions were given only once, orally, and no copy of them was sent back to the jury room so that the jurors could parse them. Because of the complexity and risk of error and misunderstanding, the court’s formulation of the instructions for Linda Agbay-ani Tagalicud alone was “inadequate to guide the jury’s deliberations.” Id.

The district judge was advised of the defect, but thought it was cured by the instruction that the “cases against each defendant should be considered separately and individually. The fact that you may find one of the defendants guilty or not guilty of any of the offenses charged should not control your verdict as to any other offense, or any other defendant.” This instruction did not cure the defect, because the jury was not told how to consider the case against each defendant separately and individually.

We need not decide whether the defect in the jury instructions was structural, see United States v. Gaudin, 28 F.3d 943, 952 (9th Cir.1994), aff'd, — U.S.-, 115 S.Ct. 2310, 132 L.Ed.2d 444 (1995), or whether the error is subject to harmless error analysis, see United States v. Olano, 507 U.S. 725, 734-36, 113 S.Ct. 1770, 1778, 123 L.Ed.2d 508 (1993). The error was not harmless. The charges are complex, the instructions were confusing, and we cannot be confident that the jury understood its task. In examining the instructions ourselves, we note clear possibilities of jury confusion.

For example, Count II of the indictment charges Linda Agbayani Tagalicud and Francisco Agustín Tagalicud with having “knowingly entered into a marriage, without intending to live together as husband and wife, for the purpose of evading provisions of the United States immigration laws,” in violation of 8 U.S.C. § 1325(b). The jury instruction regarding this count says “[djefendant Linda Agbayani Tagalicud is charged in Count Two of the indictment with knowingly entering into a marriage with Francisco ago [sic] Ta-galicud, without intending to live together with him as husband and wife, for the purpose of evading provisions of the United States immigration laws.” It then explains that “[i]n order to find a person guilty of marriage fraud the government must prove beyond a reasonable doubt that a person knowingly entered into a marriage without intending to live together as husband and wife, for the purpose of evading the immigration laws of the United States.”

This may well have confused the jury with respect to Francisco Agustín Tagalicud. The statute makes it a felony if a person “knowingly enters into a marriage for the purpose of evading any provision of the immigration laws.” 8 U.S.C. § 1325(b). We have held that a marriage was a sham “if the bride and groom did not intend to establish a life together at the time they were married.” Bark v. INS, 511 F.2d 1200, 1201 (9th Cir.1975). The evidence allowed for the possibility that Linda married Francisco without intending to establish a life together, but that he married her intending to live with her as her husband. The evidence at trial focused largely on the motivations for the marriages, money for Linda Tagalicud and Michael Hose, and visas for Francisco Tagalicud and Tarcila Hose. But the motivations are at most evidence of intent, and do not themselves make the marriages shams. Marriages for money or other ulterior gain are as ancient as mankind, yet may still be genuine, and marriage fraud may be committed by one party to the marriage, or a person who arranged the marriage, yet the other spouse may genuinely intend to marry. See Genesis 29:18-30 (Jacob honestly married, twice, but Laban had fraudulently caused him to marry Leah and thereby extorted an additional seven years of work). The ulterior motive of financial benefit or immigration benefit does not make the marriage a fraud, though it may be evidence that the marriage is fraudulent.

The instruction did not say whether Francisco could be innocent if Linda was guilty, and incorrectly implied that if the marriage was a sham, it was a sham for both. Likewise, the jury might have thought, based on Michael’s surreptitiously taped statement to his friend, that he did not genuinely intend to marry Tarcila, just to take her $10,000 and divorce her once he got her into the country, but that Tarcila intended to “establish a life together at the time they were married” in gratitude for a visa. If the jury tried to apply the Linda Tagalicud instruction, it could incorrectly infer that if the marriage were a sham as to Michael, then it was a sham as to Tarcila. For that matter, the jury was never told what it had to find in order to convict Michael.

II. Linda Tagalicud.

The defectiveness of the jury instructions is different as to Linda Tagalicud. She does not claim that the elements of the crimes were misstated or Omitted as to herself. Rather, she argues that the effect of the failure of the court to instruct the jury as to the other three defendants unfairly singled her out.

We are persuaded that she is correct. As stated above, the judge did not tell the jury how it could consider the charges against other defendants separately from the charges against Linda Agbayani Tagalicud. In at least two ways, this error made the instructions taken as a whole misleading or inadequate to guide the jury’s deliberations. See Powell, 955 F.2d at 1210.

One possibility is that describing all the crimes in terms of Linda Tagalicud’s conduct would establish her in the jury’s eyes as the lead defendant. Just as undue emphasis of particular testimony should not be permitted during jury deliberations, see United States v. Sacco, 869 F.2d 499, 501 (9th Cir.1989), and United States v. Binder, 769 F.2d 595, 600 (9th Cir.1985), so the jury instructions should not give undue emphasis to the conduct of one of several defendants, see United States v. Andrus, 775 F.2d 825, 851 (7th Cir.1985)(“a trial court should not, in instructing the jury, unduly emphasize the role a defendant has allegedly had in a multide-fendant trial”); United States v. Continental Group, Inc., 456 F.Supp. 704, 722 (E.D.Pa.1978), aff'd, 603 F.2d 444 (3d Cir.1979). The risk here is that the jury would infer that the court regarded Linda Tagalicud’s conduct as the most meretricious, arid would be more inclined to convict her than other defendants.

A second risk is that the jury would infer that conviction of Linda Tagalicud was a necessary condition to conviction of the others. Because the jury was not told how to determine whether the charges against any of the other defendants should be evaluated, and were instructed only as to Linda Tagali-cud, it could infer that it could only convict other defendants if it convicted Linda Tagali-cud. The jury might have thought that the two spouses from the Philippines, Francisco Agustín Tagalicud and Tarcila Tagalicud Hose, were guilty, but that the question was closer as to Linda Agbayani Tagalicud. The jury might have inferred, because the instructions singled out Linda Tagalicud, that it had to convict Linda Tagalicud in order to convict Francisco and Tarcila. Likewise, the jury might have thought Michael Hose was guilty, because of the secretly taped conversation which he told his friend that the marriage was for money and not “for real,” but that the question was closer as to Linda Tagalicud. The jury might have thought from the way the instructions were written that it had to convict Linda Tagalicud in order to convict Michael Hose.

CONCLUSION

As to all four appellants, the judgments are REVERSED and all cases are REMANDED.

      . Count IV was severed and dismissed without prejudice and so is not at issue in this appeal.


author: SNEED, Circuit Judge:

text:
    SHEET METAL WORKERS’ INTERNATIONAL ASSOCIATION LOCAL UNION NO. 359, Plaintiff-Appellee, v. MADISON INDUSTRIES, INC., OF ARIZONA, Defendant-Appellant.
    Nos. 94-15376, 94-17077.
    United States Court of Appeals, Ninth Circuit.
    Argued and Submitted April 12, 1996.
    Decided May 29, 1996.

      M. Douglas Tobler, John R. Tellier, Hammond, Natoli & Tellier, Phoenix, Arizona, for defendant-appellant.
    Rosemary Cook, Phoenix, Arizona, for plaintiff-appellee.
    Before SNEED, NORRIS, and WIGGINS, Circuit Judges.
   SNEED, Circuit Judge:

Madison Industries, Inc., of Arizona (“Madison”) appeals two grants of summary judgment against it in Sheet Metal Workers’ International Association Local Union No. 359’s (“the union”) action to enforce an arbitration award under 29 U.S.C. § 185. In the first appeal, No. 94-15376, Madison contests the district court’s enforcement of the arbitration award; denial of Madison’s motions for reconsideration/new trial and to supplement the record; and grant of attorney’s fees to the union. In the second appeal, No. 94-17077, Madison quarrels with the district court’s award of damages and striking of an affidavit. We affirm both judgments.

I.

BACKGROUND OF THE ARBITRATION AWARD

This case arises out of a labor dispute that has stubbornly resisted resolution. Hopefully, our disposition of this case will hasten that resolution. The background of this dispute is as follows.

Madison is an Arizona corporation that manufactures and installs prefabricated buildings. To those ends, it employs workers skilled in sheet metal work and other trades. It is a party to two collective bargaining agreements (“contracts”) with the union — one covering “building trades,” or “outside,” workers, the other covering “production,” or “inside,” workers.

According to the union, this case stems from the layoff of ten Madison sheet metal employees. On February 26, 1998, the union’s business agent, Ted Lewis, received phone calls from members who had been laid off from Madison and replaced with employees from Crown Technical Industries (“Crown”), a non-signatory to the contracts between the union and Madison. When Lewis complained to Madison’s project manager, Dan White, that by subcontracting this work to a non-signatory employer, Madison was violating its contract with the union, White responded that Madison could not afford the union members’ wages.

According to Madison, this dispute evolved from a different problem — Lewis’ insistence that production, or “inside,” workers not perform work he claimed belonged to building trades, or “outside,” workers. Madison claims that its contract with the production workers allowed those workers to do the tasks which Lewis claimed for the building trades workers. Because of Lewis’ interference, and because the union failed to dispatch workers with the proper skills, Madison was forced to hire employees of Crown or Dave Bailey Construction Services (“DBCS”), both non-signatories, to do work covered by the collective bargaining agreements with the union.

On March 8, 1993, the union filed a grievance as authorized 'in the building trades contract, requesting arbitration before the Phoenix Sheet Metal Joint Adjustment Board (“PAB”):

Over the past few months Madison Industries has been hiring non-signatory employees to do production and building trades work. During the last two weeks in February Madison terminated five apprentices/probationary apprentices and five journeymen and replaced them with non-signatory workers from [Crown]. These replacement workers have been hired to do the work that has been traditionally union sheet metal journeymen and apprentices and were not dispatched out of the local union from the out of work list, as per the agreement.

According to the contract’s grievance procedures provision, Article X, section 2, “[except in the case of deadlock, a decision of a Local Joint Adjustment Board shall be final and binding.”

The arbitration hearing was held on April 16 before a panel consisting of three sheet metal contractors and two union representatives. During the hearing, the union introduced nine photographs taken at Madison’s premises immediately following the layoffs. At the hearing, Madison stipulated that the work being performed in the photographs had within the last five to ten years been performed by building trades employees. Madison also stipulated that the workers in the photographs had not been referred through the union hall as the contract required.

The PAB found that Madison, contrary to its contentions, had violated its contract with the building trades workers “in that they have not called Sheet Metal workers through the union hall and have retained sub contractors and Crown Technical to perform sheet metal work.” The PAB ordered Madison to “reinstate those members of Local 359 that were replaced by Crown Technical personnel and DBCS personnel ... and also pay one (1) weeks wages plus fringes to those members that were terminated because of this violation of the agreement.” The arbitration award provided for additional penalties to be imposed if Madison failed to comply with the initial award within 48 hours.

Madison did fail to comply with the award, neither reinstating the laid-off employees nor paying them one week’s wages. Therefore, the PAB issued a new order on April 30, 1993, imposing the additional penalties. Madison failed to comply with the new order as well. On May 24, 1993, the union filed a petition in federal district court to enforce the arbitration award. Madison counterclaimed seeking to vacate the award.

On December 20, 1993, the district court upheld the award and granted summary judgment in favor of the union. Madison filed a motion for reconsideration or a new trial, and a motion to supplement the record. The district court denied both motions on January 24, 1994. Madison timely filed a notice of appeal on February 17. The union then filed a motion for summary judgment on damages, which the district court granted on October 24. Madison timely appealed from that judgment on November 10.

The district court had jurisdiction pursuant to 29 U.S.C. § 185. Our jurisdiction is pursuant to 28 U.S.C. § 1291.

II.

THE FIRST APPEAL

A. The Grant of Summary Judgment Enforcing the Arbitration Award

Madison argues that the district court erred in granting summary judgment enforcing the arbitration award, because the PAB exceeded its authority in a number of ways. We disagree.

1. Legal Standards

We review de novo the district court’s grant of summary judgment confirming an arbitration award. Pack Concrete, Inc. v. Cunningham, 866 F.2d 283, 284 (9th Cir.1989). Section 301 of the Labor Management Relations Act authorizes the district courts to enforce or vacate an arbitration award entered pursuant to a collective bargaining agreement. 29 U.S.C. § 186(a); Sheet Metal Workers Int’l Ass’n, Local Union No. 150 v. Air Sys. Eng’g, Inc., 948 F.2d 1089, 1091 (9th Cir.1990). However, judicial review of an arbitration award is both limited and highly deferential. Sheet Metal Workers Int’l Ass’n, Local No. 359 v. Arizona Mechanical & Stainless, Inc., 863 F.2d 647, 653 (9th Cir.1988). Thus, the court may not review the merits, but must ask only whether the grievance is governed by the contract and whether the parties agreed to arbitrate the dispute. United Steelworkers of Am. v. American Mfg. Co., 363 U.S. 564, 568, 80 S.Ct. 1343, 1346-47, 4 L.Ed.2d 1403 (1960); United Steelworkers of Am. v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582-83, 80 S.Ct. 1347, 1352-53, 4 L.Ed.2d 1409 (1960). As long as the award “draws its essence” from the contract, meaning that on its face it is a plausible interpretation of the contract, then the courts must enforce it. United Steelworkers of Am. v. Enterprise Wheel & Car Corp., 363 U.S. 593, 597, 80 S.Ct. 1358, 1361, 4 L.Ed.2d 1424 (1960); Arizona Mechanical, 863 F.2d at 653. The arbitrator’s interpretation of the scope of issues submitted to him is entitled to the same deference. Pack Concrete, 866 F.2d at 285.

In interpreting the contract, the arbitrator is not bound by precedent or by the record before him; rather, “the industrial common law-the practices of the industry and the shop-is equally a part of the collective bargaining agreement although not expressed in it.” Warrior & Gulf Navigation Co., 363 U.S. at 581-82, 80 S.Ct. at 1352; Stead Motors of Walnut Creek v. Automotive Machinists Lodge No. 1173, 886 F.2d 1200, 1206 (9th Cir.1989) (en banc), cert. denied, 495 U.S. 946, 110 S.Ct. 2205, 109 L.Ed.2d 531 (1990).

2. Did the PAB Exceed Its Authority ?

With these standards in mind, we examine Madison’s objections to the scope of authority exercised by the PAB. First, Madison contends that the charge submitted by the union complained of replacements of both building trades and production workers by non-signatory employees, yet the PAB improperly exercised its authority under the building trades contract only. However, Madison stipulated at the hearing that the work being done by replacement workers had been done by building trades workers during the last 5-10 years. Further, although the PAB made no explicit finding that the laid-off workers were building trades employees, such a finding is implicit in its decision.

Madison’s position at the arbitration hearing was that the disputed work belonged to production workers because it was performed at Madison’s plant rather than an off-premises “job site.” Madison wanted the work to be done by production workers (who are paid less than outside workers), and when the union would not allow that, Madison laid off union workers and hired non-signatory employees in their place. The union’s position was that the disputed work was covered by the building trades contract because it was the type of work listed in Article I of that contract, and that where the work was done was irrelevant.

Given that context, the PAB could have found that the laid-off workers must have been building trades workers. It could have agreed, moreover, with the union’s interpretation of the work covered by the building trades contract. We cannot say that that interpretation is implausible. Therefore, we cannot find that the PAB exceeded its authority by arbitrating the dispute under the building trades contract.

Madison next argues that the building trades contract could not provide the PAB’s authority because the work being performed was in fact production work. Again, the PAB apparently agreed with the union’s, rather than Madison’s, interpretation of the building trades contract, an interpretation not implausible on its face. Moreover, Madison’s stipulation, that recently building trades employees had been doing what it now alleges was production work, lends weight to the PAB’s conclusion. Under these circumstances, it was quite reasonable for the PAB to exercise its authority under the building trades contract.

Madison argues next that the grievance was time-barred because the charge, which defines the scope of the arbitrator’s authority, stated that “[o]ver the past few months Madison Industries has been hiring non-signatory employees.” Article 10, section 1 of the contract requires that “[t]o be valid, grievances must be raised within thirty (30) calendar days following the occurrence giving rise to the grievance.” Thus, Madison argues that the grievance was time-barred.

However, the grievance also stated: “During the last two weeks in February Madison terminated five apprentices/probationary apprentices and five journeymen and replaced them with non-signatory workers from Crown Technical Services Inc.” The griev-anee and the proceedings that followed clearly concerned the ten employees laid off on February 25 and 26. The union’s March 8 charge therefore fell well within the 30-day limitation.

Madison further complains that the union’s charge referred to replacement workers from Crown only, and that the arbitrators therefore had no authority to address the replacement workers from DBCS. However, when Lewis filed the grievance, he had been told only about the Crown employees. The hearing transcript reveals that by the time of the hearing, all parties were aware that some of the replacement workers were from DBCS. It was reasonable for the PAB to interpret the charge as also including the employees who were replaced by DBCS workers.

Finally, Madison argues that the grievance did not request back pay and the PAB was therefore without authority to award back pay. This argument is without merit. It is within an arbitrator’s authority to award back pay once he or she has concluded that an employer improperly laid off employees. Pack Concrete, Inc., 866 F.2d at 283-84 (upholding arbitration award, including award of back pay despite lack of request for back pay in union’s charge); Dayton Tire & Rubber Co. v. NLRB, 591 F.2d 566, 571 (10th Cir.1979) (finding of unfair labor practice and discriminatory discharge is presumptive proof that some back pay is owed); ILWU Local 142 v. Land & Constr. Co., Inc., 498 F.2d 201, 206 (9th Cir.1974) (affirming remand to arbitrator to determine amount of back pay).

The PAB did not exceed its authority. The award was properly enforced.

B. The Motions to Reconsider and to Supplement the Record

The collective bargaining agreement covering the building trades employees expired on July 31, 1993, three months after the award was issued. When Madison and the union failed to negotiate a new contract, they turned to interest arbitration before the National Joint Adjustment Board for the Sheet Metal Industry (“NJAB”), as prescribed in Article X, section 8 of the expired contract. The NJAB’s decision, issued December 9, 1993, resolved the parties’ dispute concerning which work belonged to production employees and which to building trades employees. As a result, some of the work implicitly treated as building trades work by the PAB’s April arbitration award was assigned to production workers in the new contract. Madison thereafter filed a motion for reconsideration and to supplement the record in this ease, arguing that the NJAB decision vindicated Madison’s position. This contention is meritless.

The district court’s denial of the motion for reconsideration or a new trial is reviewed for an abuse of discretion. California Sansome Co. v. U.S. Gypsum, 55 F.3d 1402, 1405 (9th Cir.1995) (new trial); Barber v. Hawaii, 42 F.3d 1185, 1198 (9th Cir.1994) (reconsideration). The denial of the motion to supplement the record is also reviewed for an abuse of discretion. In re Lindsay, 59 F.3d 942, 950 (9th Cir.1995), cert. denied by Lindsay v. Beneficial Reinsurance Co., — U.S. -, 116 S.Ct. 778, 133 L.Ed.2d 730 (1996).

The NJAB decision is simply irrelevant to this case. It resolved the parties’ dispute about the allocation of work between production and building trades workers for the purposes of a new contract effective August 1, 1993. The PAB’s award, on the other hand, interpreted the old contract that expired on July 1, 1993. The reasonableness of its interpretation of the old contract was not affected by the NJAB’s decision concerning the new contract. Therefore, the district court did not abuse its discretion in refusing to reconsider its decision or to allow evidence of the NJAB decision.

C. The Award of Attorney’s Fees

Ordinarily, the prevailing party in a lawsuit does not collect attorney’s fees absent contractual or statutory authorization. International Union of P.I.W. v. Western Indus. Maintenance, Inc., 707 F.2d 425, 428 (9th Cir.1983). However, a court may award fees if it finds that the losing party “ ‘acted in bad faith, vexatiously, wantonly, or for oppressive reasons.’” Id. (quoting Alyeska Pipeline Serv. Co. v. Wilderness Soc’y, 421 U.S. 240, 258-59, 95 S.Ct. 1612, 1622, 44 L.Ed.2d 141 (1975)). We adhere to the lower court’s finding of bad faith unless it was clearly erroneous; if the bad faith finding stands, we then review the award of fees for an abuse of discretion. Id. “[A]n unjustified refusal to abide by an arbitrator’s award may equate an act taken in bad faith, vexatiously or for oppressive reasons.” Id.

The district court found that Madison acted in bad faith in fading to respect the arbitration award. The court found it significant that Madison simply refused to honor the award rather than filing a petition to vacate it, and requested a vacation of the award only in response to the union’s petition to confirm it. The finding of bad faith was not clearly erroneous. We have observed Madison’s obduracy and conclude that the court did not abuse its discretion in awarding attorney’s fees.

III.

THE SECOND APPEAL

A. The Back Pay Award: Subject Matter Jurisdiction

Madison argues that its notice of appeal from the first grant of summary judgment, filed on February 17, 1994, deprived the district court of jurisdiction to hear the union’s subsequent motion for summary judgment fixing the amount of back pay. Madison relies on Davis v. United States, 667 F.2d 822, 824 (9th Cir.1982) (filing of notice of appeal divests the district court of jurisdiction over the matters appealed). Davis is inapposite where, as here, the first summary judgment addressed liability and the second damages.

Rather, the outcome of this dispute is directed by Brown v. United States Postal Serv., 860 F.2d 884, 886 (9th Cir.1988). There, we held that an initial judgment entered by the district court establishing liability but leaving for subsequent decision the amount of back pay and attorney’s fees was not a final judgment. Filing of a notice of appeal from a non-final judgment is not effective to divest the district court of jurisdiction to award damages.

B. The Striking of the Sentell Affidavit

In opposition to the union’s motion for summary judgment on damages, Madison submitted a single piece of evidence—an affidavit of its general manager, John Sentell. The affidavit stated that two of the allegedly laid-off employees, Randy Halliburton and Norman Jusseaume, were not in fact laid off at the end of February, but were terminated later in 1993 because there was no work for them to do. Sentell also stated that Madison had attempted to rehire a third employee, John Cooper, but he refused to return. Finally, Sentell stated that the other laid-off workers would have been terminated in mid-March anyway for lack of work. The district court ordered the first three paragraphs stricken for lack of personal knowledge, and the last four stricken because they dealt with liability issues already decided by the court.

We review the striking of the affidavit for an abuse of discretion; if the lower court abused its discretion, we then ask whether the error was prejudicial. The evi-dentiary requirements for summary judgment papers are described in Fed.R.Civ.P. 56(e): “Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein.” To raise a genuine issue sufficient to survive summary judgment, an affidavit must set forth specific facts tending to show the truth of the allegation.

Sentell’s affidavit stated that he had personal knowledge of the facts to which he testified. As Madison’s general manager, he was in a position to have such knowledge. The district court, therefore, arguably abused its discretion in concluding that Sen-tell lacked personal knowledge of hiring events at Madison. See Barthelemy v. Air Lines Pilots Ass’n, 897 F.2d 999, 1018 (9th Cir.1990) (that personal knowledge requirement has been met can be inferred from the affidavit); Ondis v. Barrows, 538 F.2d 904, 907 n. 3 (1st Cir.1976) (personal knowledge established by affiant’s statement that he was the officer manager and became familiar with the relevant events). However, any such error was harmless because the three paragraphs in question should have been stricken for lack of specific supporting facts, such as the dates of the layoffs, or evidence, such as copies of paychecks. See Barnes, 64 F.3d at 1396 n. 3; Richardson, 12 F.3d at 1378.

The district court also struck the other four paragraphs because they dealt with liability issues already considered and decided by the court. That determination was not an abuse of discretion.

C. The Grant of Summary Judgment Fixing Back Pay

In contesting the summary judgment awarding $90,589.78 plus interest in back pay, Madison repeats a number of arguments related to liability. We need not address these again. More to the point is its argument that there is a genuine issue of fact as to the amount of back pay due because the laid-off workers might not have worked 40-hour weeks.

In support of its summary judgment motion, the union submitted an affidavit of its bookkeeper, Irene Pysz, accompanied by records showing the amount of time each of the ten workers were out of work. This was sufficient evidence to satisfy the union’s “initial burden of identifying for the court the portions of the materials on file that it believes demonstrate the absence of any genuine issue of material fact.” T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass’n, 809 F.2d 626, 680 (9th Cir.1987) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-28, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986)). It then became Madison’s burden to set forth “ ‘specific facts showing that there is a genuine issue for trial.’ ” Id. (quoting Fed. R.Civ.P. 56(e)). Since it submitted no evidence that the employees would not have worked 40 hours per week—for example, records showing that those employees who remained worked less than 40 hours—it failed to carry this burden. Summary judgment in favor of the union was therefore proper.

Madison argues that the case should be remanded to the arbitrator for calculation of the back pay award. If there were any indication of a genuine factual dispute, that would be the proper course. We find remand unnecessary, however, where the calculation is straightforward, amply supported by the union’s evidence, and uncontroverted by any evidence submitted by Madison. We therefore affirm the judgment of the district court.

AFFIRMED.

      . Copies of these photographs are included in the union's Appendix A, the propriety of which is disputed between the parties. Madison is correct that the union ought to have prepared Supplemental Excerpts of Record rather than an appendix. See Cir. R. 30-1.6. This error is purely a matter of form, however, as the contents of the appendix are proper. All but two of the items it contains are in the Clerk’s Record, and therefore could have been included in the excerpts of record. The two exceptions are district court orders (1) awarding attorney’s fees and costs (filed April 6, 1994), and (2) granting the union's motion for summary judgment on damages (dated October 21, 1994). These orders are not in the Clerk’s Record because they were filed after Madison filed a notice of appeal of the grant of summary judgment on liability. See infra Parts II.C; III.A. Since the issues addressed in these two orders are before us in the second appeal, it is appropriate that the orders be part of the record before us.

      . The additional penalties were as follows:
      1. Reinstate Local 359 Journeymen, Apprentices and Probationary Apprentices to their former positions at full wages and fringe benefits as per the Collective Bargaining Agreement.
      2. Pursuant to Article XXV order a Certified Public Accountant to audit all the books and records of Madison Industries to record all hours worked by non-signatoiy employees, Crown Technical, and DBCS.
      3. Order Madison to pay all lost wages and fringe benefits that would have been paid to Journeymen, Apprentices and Probationary Apprentices that were not paid because of the violation of the Collective Bargaining Agreement.
      4. Order that Madison Industries be prohibited from using any employees, independent contractors, or subcontractors (non-signato-iy) for any Sheet Metal work. They are to hire all Sheet Metal Workers through the Local Unions hiring hall. They are to provide a monthly report listing names, addresses, phone numbers of all employees, independent contractors, and subcontractors used on a weekly basis to Local 359.

      . That provision states:
      (a) Suits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce as defined in this chapter, or between any such labor organizations, may be brought in any district court of the United States having jurisdiction of the parties, without respect to the amount in controversy or without regard to the citizenship of the parties.

      . Madison argues that a National Joint Adjustment Board order of October 1993 dividing up the work between the building trades and production workers along the lines urged by Madison is relevant to the PAB’s April 1993 decision. As discussed infra Part II.B, this contention lacks merit.

      . The NJAB decision stated: “The Parties shall enter into an agreement identical in terms and conditions to the Standard Form of Union Agreement ...." (emphasis added).

      . The union argues that this court cannot consider the attorney’s fees issue because Madison did not appeal die April 5, 1994, order granting fees in the amount of $3,985. The union errs. In its February 17 notice of appeal, Madison appealed the court's December 20 order granting summary judgment on the merits and awarding attorney's fees. Madison is appealing not the specific amount awarded (the subject of the April 5 order), but the grant of fees as a concept (the subject of the December 20 order).

      . Although this finding nullifies Madison’s first notice of appeal, we have jurisdiction over the first appeal because Madison’s appeal from the final judgment extended to all previous orders in the case. See Los Angeles Memorial Coliseum Comm’n v. National Football League, 791 F.2d 1356, 1359-60 (9th Cir.1986), cert. denied by Los Angeles Raiders v. National Football League, 484 U.S. 826, 108 S.Ct. 92, 98 L.Ed.2d 53 (1987); Munoz v. Small Business Admin., 644 F.2d 1361, 1364 (9th Cir.1981).

      . City of Long Beach v. Standard Oil Co., 46 F.3d 929, 936-37 (9th Cir.1995).

      . Taylor v. List, 880 F.2d 1040, 1045-46 (9th Cir.1989); see also Barnes v. Independent Automobile Dealers Ass’n of Cal. Health & Welfare Benefit Plan, 64 F.3d 1389, 1396 n. 3 (9th Cir.1995) (statement opposing summary judgment is insufficient to raise a genuine issue where the basis for, or evidence supporting, the contention is not put forth); Richardson v. Oldham, 12 F.3d 1373, 1378 (5th Cir.1994) (court may strike affidavit that lacks specific facts).

      . See, e.g., Edna H. Pagel, Inc. v. Teamsters Local Union 595, 667 F.2d 1275, 1277 (9th Cir.1982) (affirming grant of union's motions to confirm award and to compel arbitration of employer’s back pay liability); Leyva v. Certified Grocers of California, Ltd., 593 F.2d 857, 863 (9th Cir.) (in action for wages under a collective bargaining agreement, findings concerning hours and work patterns, and amount of wages paid, are within matters committed to arbitration by the contract), cert. denied, 444 U.S. 827, 100 S.Ct. 51, 62 L.Ed.2d 34 (1979); ILWU Local 142, 498 F.2d at 206 (affirming district court’s remand to arbitrator to determine exact amount of back pay due); Hanford Atomic Metal Trades Council v. General Elec. Co., 353 F.2d 302, 307-08 (9th Cir.1965) (affirming district court's remand to arbitrator to determine which party’s interpretation of scope of back pay award is correct).

      . See, e.g., United Transp. Union v. Southern Pacific Transp. Co., 529 F.2d 691, 693 (5th Cir.1976) (concluding that where back pay award can be clarified by reference to extrinsic evidence not involving the arbitrator’s special expertise, district court may so clarify); Holodnak v. Avco Corp., 514 F.2d 285, 286-87 (2d Cir.) (affirming district court’s vacation of arbitration award favorable to employer, refusal to reinstate terminated employee, and award of $9,113.24 in back pay), cert. denied, 423 U.S. 892, 96 S.Ct. 188, 46 L.Ed.2d 123 (1975).


author: TROTT, Circuit Judge:

text:
    Henri BAGDADI, d.b.a. Languavision, Plaintiff-Appellant, v. Jose NAZAR; Hispanic-American Educational Materials, Inc., d.b.a. Lexicon School of Languages; Lexicon Institute, Inc.; Lexicon Sales Corp.; Linguex, USA, a Colorado corporation; Linguex International Limited, a British Virgin Islands corporation; and Linguex Washington DC, a District of Columbia joint venture, Defendants-Appellees.
    No. 94-56588.
    United States Court of Appeals, Ninth Circuit.
    Argued and Submitted April 8, 1996.
    Decided May 29, 1996.

      Richard E.. Posell, Greenberg, Glusker, Fields, Claman & Machtinger, Los Angeles, California, for plaintiff-appellant.
    James C. Potepan, Cooper, Kardaras & Scharf, Pasadena, California, for defendant-appellees Nazar, Hispanic American Educational Materials, Inc., d.b.a Lexicon School of Languages: ISB of America, Inc., ISB of Texas, Inc., Lexicon Institute, Inc., Lexicon Sales Corp., Lexicon Service Corp.
    Vincent M. O’Brien, Rankin, Luckhardt, Vandeweghe, Landsness & Lahde, San Jose, California, for defendant-appellee Linguex.
    Before O’SCANNLAIN and TROTT, Circuit Judges, and VAN SICKLE, District Judge.

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

   TROTT, Circuit Judge:

OVERVIEW

Appellant Henri Bagdadi (Bagdadi) appeals the district court’s grant of summary judgment in favor of Defendants Jose Nazar (Nazar) and Linguex in his action for copyright infringement. The district court granted Nazar’s motion for summary judgment and sua sponte granted summary judgment for Linguex. The court concluded that Defendants were entitled to an absolute defense as “innocent infringers” pursuant to section 406(a) of the Copyright Act of 1976. We affirm summary judgment as to Defendant Nazar and reverse the sua sponte grant of summary judgment as to Defendant Lin-guex.

FACTS

In 1988, Bagdadi contracted with Linguex to produce a series of language instruction videos. Linguex was opening language instruction schools and wanted Bagdadi to make an audio-visual program for use by instructors. The project included the video “English I,” which is the subject of this dispute. On the “English I” video, Bagdadi placed the Linguex Company logo and a notice reading “Copyright 1984 by Linguex International Limited, All Rights Reserved.” He also included graphics crediting himself as the writer, director, and producer of the video. Neither Bagdadi nor Linguex registered a copyright for the video when it was created.

Bagdadi and Linguex agree that at the time they contracted, they intended that Lin-guex would use the video for classroom use only. The video was formatted for a classroom setting, requiring a teacher. After the video was completed, Linguex sent Bagdadi a copyright release form, but Bagdadi objected to it and sent it back with changes. The copyright matter was never resolved, and no copyright transfer has surfaced.

In the fall of 1988, Linguex sold approximately 400 copies of the “English I” video to a different language instruction school, the Lexicon School, for inclusion in a 12-cassette series known as “Ingles Sin Barreras.” In October 1988, Bagdadi coincidentally visited the Lexicon School. The school was operated by Defendant Jose Nazar, and Bagdadi was considering buying the school. While in the lobby of the school, Bagdadi saw a video monitor playing “English I,” and he told Nazar that he had made the video. Bagdadi claims that no one at Lexicon School told him that “English I” was being offered for sale, and that he did not see any ads or displays indicating that it was for sale. Nazar never asked Bagdadi any questions about the rights to the video. In a letter following his meeting with Nazar, Bagdadi commented on the display of the video, but he did not protest its use. Nazar states that the video was for sale, but Bagdadi claims that he thought the video was being used for classroom use and he did not recognize it as part of a sales display.

In January 1989, Linguex entered into a licensing agreement with Nazar to authorize the reproduction and sale of the “English I” video. In July 1993, Bagdadi saw a television infomercial on “Ingles Sin Barreras” and recognized a clip from “English I.” Bagdadi first notified Nazar of his objection to their use of the video on October 27, 1993. On December 22,1993, Bagdadi obtained a copyright registration for “English I.”

On January 18, 1994, Bagdadi filed this action. Nazar moved for summary judgment, claiming to be an “innocent infringer,” as the term is used in section 406(a) of the Copyright Act. Defendants American Top English, Inc. and National Education Systems joined in Nazar’s motion. The district court granted summary judgment in favor of those Defendants, and then granted summary judgment sua sponte to Defendant Lin-guex.

STANDARD OF REVIEW

A grant of summary judgment is reviewed de novo. Warren v. City of Carlsbad, 58 F.3d 439, 441 (9th Cir.1995), cert. denied, — U.S. -, 116 S.Ct. 1261, 134 L.Ed.2d 209 (1996). The appellate court must determine, viewing the evidence in the light most favorable to the nonmoving party, whether genuine issues of material fact exist and whether the district court correctly applied the relevant substantive law. Id. at 441.

DISCUSSION

This action is governed by the Copyright Act of 1976 because the work in question was created after January 1, 1978, and it involves “an original work[ ] of authorship fixed in [a] tangible medium of expression ... from which [it] can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.” 17 U.S.C. § 102(a); see 17 U.S.C. § 301(a)(ex-clusive rights within general scope of copyright governed exclusively by this title). Copyright “vests initially in the author or authors of the work.” 17 U.S.C. § 201(a).

For purposes of the motion for summary judgment, this court must assume, as the district court did, that Bagdadi “owned” the copyright and that he did not transfer ownership of the copyright to Linguex. Bagdadi claims that his exclusive license to Linguex granted only the right to use the video for classroom use. It is important to note that the various rights included in a copyright are divisible and that “any of the exclusive rights comprised in a copyright ... may be transferred ... and owned separately.” 17 U.S.C. § 201(d)(2). An exclusive licensee owns separately only the “exclusive rights comprised in the copyright” that are the subject of his license. Melville B. Nimmer & David Nimmer, Nimmer on Copyright § 10.02[C] (1995) [Nimmer on Copyright],

Defendants claim that, even assuming Bag-dadi’s ownership of the copyright, they were entitled to summary judgment based on an absolute defense of innocent infringement under section 406(a) of the Copyright Act. Section 406(a) states:

With respect to copies ... publicly distributed by authority of the copyright owner ..., where the person named in the copyright notice on copies ... publicly distributed by authority of the copyright owner is not the owner of the copyright, the validity and ownership of the copyright are not affected. In such a case, however, any person who innocently begins an undertaking that infringes the copyright has a complete defense to any action for such infringement if such person proves that he or she was misled by the notice and began the undertaking in good faith under a purported transfer or license from the person named therein, unless before the undertaking was begun—
1) registration for the work had been made in the name of the owner of copyright; or
2) a document executed by the person named in the notice and showing the ownership of the copyright had been recorded.
The person named in the notice is liable to account to the copyright owner for all receipts from transfers or licenses purportedly made under the copyright by the person named in the notice.

17 U.S.C. § 406(a).

Bagdadi argues that the innocent infringer defense is not applicable to Defendant Nazar because: 1) the work was not “publicly distributed”; 2) even if the initial distribution of the work was publicly distributed with Bag-dadi’s authority, the copy Nazar relied on was not distributed with Bagdadi’s authority; and 8) Nazar did not act in good faith. Bag-dadi also contends that the district court erred in granting summary judgment sua sponte for Linguex.

I

“Public Distribution” of English I

The first question before this court is whether Bagdadi “publicly distributed” the “English I” video when he provided it to Linguex for use in classrooms. “Publicly distributed” is not defined in the Copyright Act, but the parties agree that its definition is equated with “publication.” Publication is defined as:

[T]he distribution of copies ... of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending. The offering to distribute copies ... to a group of persons for purposes of further distribution, public performance, or public display, constitutes publication. A public performance or display of work does not of itself constitute publication.

17 U.S.C. § 101.

Bagdadi argues that Bagdadi’s initial distribution of “English I” to Linguex was not a public distribution because it was not offered to a “group of persons for purpose of ... public performance.” Bagdadi reasons that his distribution to Linguex was a distribution to a single entity, not to a group. He contends that there is no authority supporting the proposition that employees of a single corporate distributee constitute a “group” within the meaning of the statute. He argues that the fact that the school is comprised of multiple people does not change the fact that the distribution was to a single entity.

Defendants, on the other hand, argue that the Linguex School constituted a “group of persons.” The district court agreed with Defendants, stating:

Linguex was an educational institution and the expense of producing a video was incurred not for personal use but for commercial use throughout the school by many teachers and students. Bagdadi’s distribution to Linguex, therefore, was to a “group of persons.”

No courts have decided the issue of whether a single entity comprised of multiple people constitutes a “group of persons” within the meaning of the statute. However, based on our interpretation of the plain statutory language, we agree with the district court that the Linguex School was a “group of persons.” The Linguex School consisted of multiple teachers and students, and it was open to members of the public who wished to engage in the study of English. This is very different than a distribution to one person in a closed setting. Therefore, we conclude that the school constituted a “group of persons.”

Bagdadi also argues that showing a. work in a private language school is not a “public performance.” To perform or display a work “publicly” means to “perform or display it at a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered.” 17 U.S.C. § 101. “One of the principal purposes of the definition was to make clear that ... performances in ‘semi-public’ places such as clubs, lodges, factories, summer camps, and schools are ‘public performances’ subject to copyright control.” Columbia Pictures Indus., Inc. v. Professional Real Estate Investors, Inc., 866 F.2d 278, 281 (9th Cir.1989); The Linguex School was open to the public. The “English I” video was intended to be performed for students in a classroom setting. Thus, the video was distributed for the purpose of public performance.

Accordingly, we conclude that the copies of “English I” initially distributed by Bagdadi to Linguex were “publicly distributed” within the meaning of the Copyright Act.

II

Application of Innocent Infringer Defense to Nazar

Bagdadi argues that, even if this court finds that the initial sale of “English I” to Linguex was a public distribution, the § 406(a) defense does not apply to Nazar because: 1) the copy of “English I” relied on by Nazar was not an authorized copy; and 2) Nazar did not act in good faith.

A. Reliance on an Authorized Copy

Section 406(a) states in relevant part that:

[Wjhere the person named in the-copyright notice on copies ... publicly distributed by authority of the copyright owner is not the owner of the copyright, ... any person who innocently begins an undertaking that infringes the copyright has a complete defense to any action for such infringement if such person proves that he or she was misled by the notice and began the undertaking in good faith under a purported transfer or license from the person named therein_

17 U.S.C. § 406(a). Bagdadi contends that the innocent infringer defense would not apply to Nazar because the copy on which Nazar relied, which came from Linguex, was not an “authorized copy.” Bagdadi reasons that he transferred to Linguex only the right to use the video in its classrooms, not to further sell the video to Nazar. As a result of Nazar’s reliance on the erroneous copyright in an un authorized copy of “English I,” Bagdadi asserts .that the § 406(a) defense does not apply.

This argument misses the mark. Bagda-di’s interpretation would require that in order for the § 406(a) defense to apply, the purported transfer or license from the person named in the copyright (Linguex) to the person claiming innocent infringement (Na-zar) would have to be authorized by the true copyright owner (Bagdadi). Such a rule-would inappropriately shift the focus of the requirement of owner authorization from the initial public distribution, where it belongs, and render irrelevant the innocence of anyone relying in good faith on a misleading notice.

It is Bagdadi’s authorization of the initial public distribution to Linguex that is the authorization required to constitute a copy “publicly distributed by authority of the copyright owner.” A subsequent distribution to another party, such as that found in this case, is precisely the type of situation for which the innocent infringer defense was created. Thus, Bagdadi’s reading of section 406(a) fails because it is inconsistent with the statute’s plain language and irreconcilable with its manifest purpose.

B. Nazar’s Good Faith Reliance on the Copyright Notice

We next address whether the district court correctly concluded that Nazar was entitled to the innocent infringer defense as a matter of law. Bagdadi asserts that the good faith requirement of the innocent in-fringer defense imposed a burden of inquiry on Nazar because the name of the author of “English I” was different than the person named in its copyright notice. See Quinto v. Legal Times of Wash., Inc., 506 F.Supp. 554, 562-63 (D.D.C.1981); Nimmer on Copyright § 7.14[B][2][b]. Bagdadi argues that, at the very least, issues of fact remain regarding the reasonableness and good faith of Nazar’s reliance on the erroneous copyright notice.

In Quinto, the Legal Times of Washington (Legal Times) had reprinted an article from the Harvard Law Record that was written by Quinto. More than nine months before reprinting the Quinto article, a previous editor of the Harvard Law Record had given the Legal Times oral permission to reprint materials. When Quinto’s article was published, the Harvard Law Record’s masthead had a general copyright notice. Quinto’s article did not have an individual copyright, but it stated his name as the author.

When Quinto sued for copyright infringement, the Legal Times claimed to be an “innocent infringer.” In ruling against the Legal Times ’ innocence, the court observed:

It is difficult to imagine how the notice could have been so misleading that [the defendant] did not even have a duty to inquire who owned the copyright in the article, since the article clearly bore [plaintiffs] name. In fact, it might even be argued that ambiguity as to who owned the copyright—which arose because of the blanket notice—increased [defendant’s] duty to inquire about ownership.... At a minimum, [defendant] had a duty to inquire whether the Record owned the copyright to [plaintiffs] article in order to claim he was misled and acted in good faith.

506 F.Supp. at 563. The court concluded as a matter of law that the Legal Times had breached its duty of inquiry and had not acted in good faith. The court in Quinto acknowledged that “good faith” is generally a question of fact, but decided that the facts weighed so heavily in Quinto’s favor, and against the Legal Times ’ good faith or innocent infringement, that Quinto was entitled to summary judgment.

Bagdadi contends that the “English I” video presented a similarly ambiguous copyright because the copyright notice was in Lin-guex’s name, but the credits listed Bagdadi as writer, producer, and director. Bagdadi argues that, based on Quinto, Nazar had a duty to inquire about the copyright’s ownership in order to claim he was misled and acted in good faith.

Quinto, however, depends heavily on its facts and is distinguishable. Quinto involved a copyright notice on a newspaper, which compiled a collection of works by different authors. The nature of such a joint collection communicates the possibility, or even the likelihood, that copyright ownership of the separate works may vary. The masthead copyright notice protects the collection of articles from violation by outsiders, but does not indicate the copyright ownership rights between the authors and the newspaper.

Here, in contrast, the work at issue was a single instruction video with one copyright notice and one author. The copyright notice clearly identified Linguex as the owner, stating “Copyright 1984 by Linguex International Limited, All Rights Reserved.” The notice could not have been more unambiguous, regardless of its accuracy. Therefore, an outside party reasonably could have been misled to believe that Linguex did in fact own the copyright and all of the rights thereunder.

We axe not willing to extend Quinto to impose a duty of inquiry anytime the copyright notice is in the name of someone different than the named author in order for an infringer to claim good faith reliance on the copyright. Here, although the copyright owner and the author were different, copyright ownership was not unclear as it was in Quinto. Instead, the copyright notice was specific and unambiguous, stating that Lin-guex reserved all of the rights under the copyright. Thus, Nazar had no reason to believe that Bagdadi, as the author, had licensed only the right to perform the work in the Linguex School and had reserved to himself the right to sell the work. Therefore, Nazar acted reasonably when he was misled by the unambiguous copyright notice and when he contracted with Linguex to sell the “English I” video.

As such, the facts of this case do not raise a genuine issue of material fact as to Nazar’s good faith. Nazar relied on the unambiguous copyright notice, and Bagdadi has not brought forward sufficient evidence to present a question of fact as to the reasonableness or good faith of that reliance. Therefore, we affirm the district court’s grant of summary judgment in Nazar’s favor based on the innocent infringer defense.

Ill

Sua Sponte Dismissal of Linguex

Linguex did not join in Nazar’s motion for summary judgment. However, in granting summary judgment for the other defendants, the district court sua sponte granted summary judgment to Linguex. The court stated, without explanation, that:

On the innocent infringement issue, it appears that all defendants are similarly situated. Therefore, since the issue has been fully ventilated, the court sua sponte grants summary judgment to all remaining defendants as well.

We disagree and .find that the district court erred in granting sua sponte summary judgment for Linguex.

Defendants Nazar and Linguex were not similarly situated. Linguex directly contracted with Bagdadi for the “English I” video, Nazar did not. Bagdadi alleges different infringements by separate parties: 1) Linguex’s infringement when it sold copies of the “English I” video to Nazar and, later, when Linguex collected royalties based on Nazar’s sales; and 2) Nazar’s infringement when it sold copies of “English I” to the general public and showed portions of it in infomercials. These were distinct infringements, and the parties relationships with Bagdadi were very different.

As a direct party to the licensing agreement with Bagdadi, Linguex was in a much better position than Nazar to know the nature of the rights that had been transferred and to know whether it had the right to sell the video to Nazar. For purposes of the motion for summary judgment, this court has assumed that Bagdadi is the owner of the copyright, that Bagdadi’s agreement with Linguex was a limited license to utilize the work in a classroom context only, and that Linguex had no authority to sell copies of the work. Bagdadi pointed out that Linguex sent Bagdadi a copyright release form, to which Bagdadi objected and which he sent back with changes. The copyright matter apparently was never resolved, and no copyright transfer formally took place. Thus, based on these facts, it appears that Linguex had some knowledge that it was not the owner of all of the divisible rights under the copyright.

In conclusion, we hold that the district court erred in finding the Defendants “similarly situated” for purposes of the innocent infringer defense and in sua sponte granting summary judgment to Linguex. Material issues of fact remain about Bagdadi’s and Lin-guex’s rights under their initial agreement, and about whether Linguex acted in good faith reliance on the copyright notice. Therefore, we remand to the district court for further proceedings on Bagdadi’s asserted claims of copyright infringement against Linguex.

Affirmed in part; reversed in part.

The parties shall bear their own costs of this appeal.

      . Nazar refers to Defendants Jose Nazar; Hispanic-American Educational Materials, Inc. d/b/a Lexicon School of Languages; Lexicon Institute, Inc.; and Lexicon Sales Corp.

      . Linguex refers to Linguex, U.S.A., Inc.; Lin-guex International Limited; and Linguex Washington, D.C.

      . The owner of a copyright has the exclusive right to: 1) reproduce the copyrighted work; 2) to prepare derivative works based on the copyrighted work; 3) to distribute copies of the work to the public by sale, lease, etc.; 4) to perform the copyrighted work publicly; and 5) to display the copyrighted work publicly. 17 U.S.C. § 106.

      . Bagdadi’s argument on this point appears to find support in the following passage from Nim-mer on Copyright that describes one of the requirements for the innocent infringer defense:

        Authorized Distribution by the Copyright Owner. The improper copyright notice which misled the defendant must have appeared upon copies or phonorecords the public distribution of which was authorized by the true copyright owner. If such distribution by the person named in the notice violated a condition contractually imposed upon such person by the true copyright owner, then the distribution was unauthorized, and the Section 406(a) defense may not be claimed.

        Nimmer on Copyright § 7.14[B][2][c] (emphasis added). Here, Bagdadi contends that the distribution by Linguex to Nazar violated a condition contractually imposed by Bagdadi and that the distribution was not authorized, thus precluding the application of the § 406 defense. However, we are not persuaded by Bagdadi’s argument or by this section of Nimmer.

      . The district court emphasized the fact that Bag-dadi himself placed the unambiguous copyright notice on the video and failed to object to the use of the video by Nazar when he visited the Lexicon School in 1988. However, we note that the fact that Bagdadi himself put the copyright notice on the video is irrelevant to a finding of Nazar's good faith and innocent infringement. That fact would be relevant to copyright ownership, which is not at issue here. As to Bagdadi's failure to object to Nazar’s display of the video at the Lexicon school, Bagdadi explains that he felt that Lexicon School was using the video in compliance with the license for classroom use which Bagdadi had granted Linguex. However, this line of inquiry goes to the issue of equitable estoppel, which is not before this court.

      . Linguex also argues that Bagdadi's complaint is one for contract damages and inappropriate for federal question jurisdiction insofar as it seeks recovery for revenue derived from the sale of the video. This would be true if Bagdadi had transferred the right to sell the work, and then Linguex violated Bagdadi’s contractual right to receive royalties from those sales. However, based on the facts before this court, Bagdadi owned the copyright and Linguex had a only a limited license, which did not include the right to sell the video. Therefore, Linguex’s action is properly one for copyright infringement, not merely for breach of contract.