Ardisam, Inc. v. Ameristep, Inc.

134 F. App'x 439

Opinion

ORDER

Order Vacated, See 2005 WL 1691427.

On May 17, 2005, this court issued an Order directing the parties to show cause, before the close of business on May 23, 2005, why the court should not dismiss the appeal for want of jurisdiction due to an absence of a final judgment. Both parties have responded and the responses confirm that outstanding counterclaims of invalidity remain in this case.

In the absence of a final decision disposing of the entire case, we lack jurisdiction. Nystrom v. TREX Co., 339 F.3d 1347 (Fed.Cir.2003). Notwithstanding the arguments of Spring Form, Inc., to the contrary, where, as here, a case is not fully adjudicated as to all of its claims and no exception to the rule that nonfinal orders are not appealable applies, there is no final decision, and consequently, no jurisdiction.

Accordingly,

IT IS ORDERED THAT:

(1) This appeal is dismissed for lack of jurisdiction.

(2) This appeal may be reinstated under the same docket number and without an additional filing fee, providing that the parties perfect the appeal within 30 days of the date of this Order by obtaining either a final judgment on the entire case or a certification for appeal pursuant to Fed.R.Civ.P. 54(b).¹

(3) In the event that this appeal is reinstated within 30 days of the date of this Order, the case will be assigned to a new panel of judges in accordance with the procedures of this court and the filing of new briefs will not be required.

1

. We express no view on whether a Rule 54(b) certification is appropriate and should be made in this case, as this is a matter within the sound discretion of the district court. Aleut Tribe v. United States, 702 F.2d 1015, 1021 (Fed.Cir.1983).