Pennington Seed, Inc. v. Produce Exchange No. 229

134 F. App'x 443

• Court: Court of Appeals for the Federal Circuit
• Decided: June 2, 2005
• Docket: No. 05-1289
• Status: Published

Opinion

ORDER

PROST, Circuit Judge.

Pennington Seed, Inc. et al. (Pennington) respond to the court’s April 18, 2005 order directing them to show cause why their appeal of the February 8, 2005 decision of the United States District Court for the Western District of Missouri in Pennington Seed, Inc. v. Produce Exchange No. 229, No. 04-CV-4194, should not be dismissed.

On November 29, 2004, the district court granted the University of Arkansas’ motion to dismiss based upon Eleventh Amendment immunity. On February 8, 2005 the district court denied Pennington’s motion for reconsideration of the November 29 order, and Pennington appealed.

In its response, Pennington concedes that proceedings are ongoing in the district court with respect to parties other than the University of Arkansas. However, Pennington asks that the court postpone dismissal until the district court rules on its motion for certification pursuant to Fed.R.Civ.P. 54(b).

“A district court’s judgment is final where it ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.” Ultra-Precision Mfg. Ltd. v. Ford Motor Co., 338 F.3d 1353, 1356-57 (Fed.Cir.2003) (citation omitted). Because the district court has not concluded its proceedings, we determine that there is no final judgment. Because the district court has not entered judgment, we lack jurisdiction and must dismiss. See 28 U.S.C. § 1295(a)(1). Pennington may, of course, file a new notice of appeal after the district court concludes its proceedings and enters final judgment or enters judgment pursuant to Rule 54(b).

Accordingly,

IT IS ORDERED THAT:

(1) Pennington’s appeal is dismissed.

(2) Each side shall bear its own costs