Lakim Industries, Inc. v. Linzer Products Corporation

Opinion

Case: 13-1225 Document: 20 Page: 1 Filed: 05/03/2013

NOTE: This order is nonprecedential.

United States Court of Appeals for the Federal Circuit __________________________

LAKIM INDUSTRIES, INC., doing business as Quali-Tech Manufacturing Company, Plaintiff-Appellant, v. LINZER PRODUCTS CORPORATION, Defendant-Appellee. __________________________

2013-1225 __________________________

Appeal from the United States District Court for the Central District of California in No. 12-CV-4976, Judge Margaret M. Morrow. __________________________

ON MOTION __________________________

Before LOURIE, BRYSON, AND MOORE, Circuit Judges.

LOURIE, Circuit Judge. ORDER Lakim Industries, Inc. moves without opposition to stay proceedings so that it may “seek from the District Court entry of a final judgment addressing the Defend- ant/Appellee’s counterclaims, an express determination Case: 13-1225 Document: 20 Page: 2 Filed: 05/03/2013

LAKIM INDUSTRIES, INC. v. LINZER PRODUCTS CORPORATION 2

that there is no just reason for delay of an appeal of the Order Granting Motion for Summary Judgment (District Court Docket No. 63) pursuant to Federal Rule of Civil Procedure 54(b), or other guidance as to the disposition of the matter below pursuant to the Judgment (District Court Docket No. 64) entered January 21, 2013.” Lizner Products Corporation’s counterclaim of invalid- ity of the patent at issue has not been decided. As there is a pending claim, there is no final judgment and this appeal is premature. See Nystrom v. TREX Co., 339 F.3d 1347, 1350 (Fed. Cir. 2003) (“If a case is not fully adjudi- cated as to all claims for all parties and there is no ex- press determination that there is no just reason for delay or express direction for entry of judgment as to fewer than all of the parties or claims, there is no final decision ... and therefore no jurisdiction.”). Pursuant to Pause Tech- nology LLC v. TiVo Inc., 401 F.3d 1290, 1295 (Fed. Cir. 2005), this appeal is dismissed for lack of jurisdiction, subject to reinstatement under the same docket number without the payment of an additional fee if, within 60 days of the date of this order, the district court enters a final judgment or certification under Rule 54(b) and, within 30 days of entry of judgment or certification, Lakim files another notice of appeal. Accordingly, IT IS ORDERED THAT: (1) The appeal is dismissed for lack of jurisdiction, subject to reinstatement under the same docket number without the payment of an additional filing fee if, within 60 days of the date of this order, the district court either enters final judgment or enters a proper certification under Rule 54(b). (2) All other motions are denied as moot. (3) Each side shall bear its own costs. Case: 13-1225 Document: 20 Page: 3 Filed: 05/03/2013

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FOR THE COURT

/s/ Jan Horbaly Jan Horbaly Clerk s26