Alps South, LLC. v. the Ohio Wood Co.

Case: 13-1122   Document: 25     Page: 1   Filed: 04/11/2013




           NOTE: This order is nonprecedential.


   United States Court of Appeals
       for the Federal Circuit
                 ______________________

                  ALPS SOUTH, LLC,
                   Plaintiff-Appellee,

                            v.

        THE OHIO WILLOW WOOD COMPANY,
                Defendant-Appellant.
               ______________________

                       2013-1122
                 ______________________

    Appeal from the United States District Court for the
 Middle District of Florida in case no. 08-CV-1893, Judge
 Mary S. Scriven.
                  ______________________

                     ON MOTION
                 ______________________

   Before PROST, MOORE, and O’MALLEY, Circuit Judges.
 MOORE, Circuit Judge.

                         ORDER

    Alps South, LLC, moves to dismiss The Ohio Willow
 Wood Company’s appeal as premature. Ohio Willow
 opposes.
Case: 13-1122    Document: 25     Page: 2     Filed: 04/11/2013




 2                  ALPS SOUTH, LLC   v. OHIO WILLOW WOOD CO.
     Alps South sued Ohio Willow for patent infringement
 in the United States District Court for the Middle District
 of Florida. After a trial, the jury reached a verdict in
 favor of Alps South. The district court subsequently
 entered a first and second amended judgment. Still
 pending at the district court include: the parties’ separate
 motions regarding absolute or equitable intervening
 rights, Alps South’s motion for enhanced damages and
 fees, and Alps South’s motion for a permanent injunction.

     Generally, this court has appellate jurisdiction over
 only “final decisions” of the district courts. 

28 U.S.C. § 1295

. The Supreme Court “long has stated that as a
 general rule a district court’s decision is appealable under
 [§ 1291] only when the decision ‘ends the litigation on the
 merits and leaves nothing for the court to do but execute
 the judgment.’” Gulfstream Aerospace Corp. v. Ma-
 yacamas Corp., 

485 U.S. 271, 275

 (1988) (quoting Catlin
 v. United States, 

324 U.S. 229, 233

 (1945)). A case in
 which a request for injunctive relief remains pending
 cannot be said to leave nothing for the district court to do
 but execute judgment. Liberty Mut. Ins. Co. v. Wetzel, 

424 U.S. 737, 1206-07

 (1976). Accordingly, Ohio Willow’s
 contention that the second amended judgment can be
 considered to be final must fail.

     Furthermore, because the motion for a permanent in-
 junction remains pending, the district court’s judgment is
 also not “final except for an accounting” as required for
 interlocutory appeal under 

28 U.S.C. § 1292

(c)(2). Cf.
 PODS, Inc. v. Porta Stor, Inc., 

484 F.3d 1359, 1365

 (Fed.
 Cir. 2007) (although notice of appeal was premature
 because of pending request for injunctive relief, appeal
 was treated as timely when district court decided injunc-
 tive relief claim while appeal was pending).

    We have dismissed premature appeals in similar cir-
 cumstances. See Advanced Cardiovascular Systems, Inc.
Case: 13-1122         Document: 25   Page: 3     Filed: 04/11/2013




  ALPS SOUTH, LLC     v. OHIO WILLOW WOOD CO.                 3
 v. Medtronic Vascular, Inc., 

231 F. App’x 962

 (Fed. Cir.
 2007); Surfco Hawaii v. Fin Control Sys. Pty, Ltd., 

232 F.3d 910

 (Fed. Cir. 2000) (unpublished). We see no rea-
 son why that reasoning would not compel the same result
 here, and grant the motion to dismiss.

       Accordingly,

       IT IS ORDERED THAT:

       (1) Alps South’s motion to dismiss is granted.

       (2) All other pending motions are moot.

       (3) Each side shall bear its own costs.

                                       FOR THE COURT

                                       /s/ Jan Horbaly
                                       Jan Horbaly
                                       Clerk

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