Digital Impact, Inc. v. Bigfoot Interactive, Inc.

267 F. App'x 945

Opinion

RADER, Circuit Judge.

ORDER

Bigfoot Interactive, Inc. (“Bigfoot”) moves to dismiss Digital Impact, Inc.’s (“Digital Impact”) appeal, 2008-1070. Digital Impact does not oppose the motion and separately moves for an extension of time to file its opening brief.

Digital Impact sued Bigfoot for patent infringement. Bigfoot filed a counterclaim, seeking a declaratory judgment of invalidity. On September 19, 2007 the United States District Court for the Northern District of California entered summary judgment of noninfringement. Without expressly addressing or dismissing Bigfoot’s counterclaim, the district court entered a “final judgment.” Subsequently, Digital Impact filed this appeal.

A judgment that does not dispose of pending counterclaims is not a final judgment. Nystrom v. TREX Co., Inc., 339 F.3d 1347, 1351 (Fed.Cir.2003). Because there is no final judgment disposing of all claims for relief, Digital Impact’s appeal must be dismissed. Id.

Accordingly,

IT IS ORDERED THAT:

(1) The motion to dismiss appeal no. 2008-1070 is granted.

(2) Digital Impact’s motion for an extension of time is denied as moot.