Ohio Willow Wood Co. v. Thermo-Ply, Inc.

629 F.3d 1374, 97 U.S.P.Q. 2d (BNA) 1670

Opinions

Order for the court filed by Chief Judge RADER. Additional views filed by Circuit Judge, NEWMAN. Concurrence filed by Circuit Judge, MOORE.

ON MOTION

RADER, Chief Judge.

ORDER

The parties jointly move for remand of these appeals.

* Alps South, LLC moves for leave to file a brief amicus curiae in 2010-1119 or in the alternative for leave to intervene and oppose the motion to remand. Alps South also moves for leave to file an opposition to the motion to remand.

We remand for the limited purpose of the district court’s consideration of the parties’ motion for vacatur. We retain jurisdiction so that any of the parties may seek appellate review by notifying the Clerk of the Court within thirty days of entry of the district court’s decision on remand.

The appeals are held in abeyance pending the resolution of the motion for vacatur by the district court. The parties should promptly inform this court of the district court’s ruling on the motion pursuant to Fed. R.App. P. 12.1(b) and should propose how they believe the appeals should proceed in light of the district court’s ruling.

Accordingly,

It Is Ordered That:

(1) The motions to remand in 2010-1119, -1269 are granted to the limited extent explained above. This court retains jurisdiction over the appeals at this time.

(2) The court’s June 14, 2010 order dismissing 2010-1269 is vacated, the mandate in 2010-1269 is recalled, and the appeal is reinstated for purposes of the limited remand.

(3) Alps South’s motions are denied.

NEWMAN, Circuit Judge,

additional views.

I join the court’s Order to remand to the district court for consideration of the motion for vacatur. I write separately to point out that the views of our colleague in separate concurrence are not the court’s remand order. I am concerned with the apparent bias impressed upon the district court’s action on remand.

We have remanded so that the court that rendered the decision can decide whether to vacate it, based on our conclusion that the district court is in the better position to make that ruling, indeed to consider all of the legal and equitable considerations as may be brought to its attention by those favoring and opposing the motion. Our remand should be unencumbered by even the appearance of prejudgment or of the weight to be given to various considerations. Indeed, the issues on which our colleague in concurrence offers judicial advice are more complex than is here recognized.

This court does not have a complete picture of the circumstances of this case— that is the reason for the remand.¹ Whether a district court chooses to vacate its own decision in a particular case is a matter of case-specific discretion. I do not endorse the proffer of judicial advice on selected issues, thereby placing an appellate thumb on the scale of the remand order before it reaches its destination.

In their motion to remand in 2010-1269, the parties also request that 2010-1269 be dismissed. We assume that this request is erroneous, as it appears to be the parties’ request that the "actions” be remanded. We note that 2010-1269 was dismissed on June 14, 2010 for failure to file an opening brief. We reinstate that appeal so that the entire matter can be remanded for the limited purpose of the district court's consideration of the parties' motion for vacatur.

1 . My colleague in "concurrence” offers the footnote proposition that "[t]here will be no opposing voice when the parties move for vacatur because both parties benefit.” This is inapplicable, for there has already been a request for intervention of a third party, Alps South LLC. Motion of Amicus Curiae, Alps South, LLC to File Brief In Support Of Appellee, Thermo-Ply, Inc., Or In The Alternative To Intervene In This Appeal (July 26, 2010). FRCP 24(b)(1)(B) (“On timely motion, the court may permit anyone to intervene who: ... (B) has a claim or defense that shares with the main action a common question of law or fact.”). Alps South argues against vacatur, citing a pending suit against it on the same patent. Indeed, the existence of such additional complexity influenced this court’s decision to remand the motion to the district court.