Monsanto Co. v. Scruggs

117 F. App'x 729

Opinion

ON MOTION

GAJARSA, Circuit Judge.

ORDER

The parties respond to this court’s October 18, 2004 order directing the parties to show cause why these appeals should not be dismissed as premature.

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Mitchell Scruggs et al. (Scruggs) filed two appeals. The first concerned the district court’s summary judgment rulings on the patent infringement claim. Because other claims remained pending, that appeal was premature. Fed.R.Civ.P. 54(b). The second appeal concerned the district court’s denial of Scruggs’ motion to reconsider or vacate a preliminary injunction. That appeal is not premature, although it might be moot in view of the district court’s recent entry of final judgment and a permanent injunction. See Fundicao Tupy S.A. v. United States, 841 F.2d 1101 (Fed.Cir.1988). Mitchell Scruggs et al. states that the district court has recently entered final judgment and a permanent injunction and that another appeal will soon be docketed. Thus, we will maintain the stay of the briefing schedule until that appeal is docketed. When the appeal is docketed, Scruggs should move to consolidate the newly filed appeal with 04-1532 and to lift the stay of the briefing schedule.

Accordingly,

IT IS ORDERED THAT:

(1) Appeal 04-1527 is dismissed as premature.

(2) The briefing schedule shall remain stayed in 04-1532, pending the docketing of Scruggs’ additional appeal and Scruggs’ filing of a motion to consolidate the appeals and lift the stay of the briefing schedule.

We note that Monsanto Company improperly cites two nonprecedential orders of this court. Monsanto argues that they are precedential because the legend, apparently as it appears on Westlaw’s legal search service, does not state that they are nonprecedential. We note that Westlaw often does not include the nonprecedential legend and that any decision or order that does not have an "F.2d” or “F.3d” citation is not precedential. The original orders contained the proper nonprecedential legend and were not published in "F.2d” or "F.3d”.