Perricone v. Medicis Pharmaceutical Corp.

98 F. App'x 868

• Court: Court of Appeals for the Federal Circuit
• Decided: May 4, 2004
• Docket: No. 04-1184
• Status: Published

Opinion

SCHALL, Circuit Judge.

ORDER

Medicis Pharmaceutical Corporation moves to dismiss Nicholas V. Perricone, M.D.’s appeal or, in the alternative, to deactivate. Perricone opposes the motion to dismiss and consents to the motion to deactivate.

Perricone appealed from the June 16, 2003 order of the United States District Court for the District of Connecticut in Perricone v. Medicis Pharmaceutical Corp., No. 3:99 CV 1820, granting Medicis’ motions for partial summary judgment of invalidity and of noninfringement of certain claims of Perrieone’s patents.

Medicis states that the district court has not yet entered final judgment and thus moves to dismiss Perricone’s appeal for lack of jurisdiction. A review of the district court’s docket sheet reflects that a final judgment has not been entered. Therefore, we conclude that the appeal is premature and dismiss for lack of jurisdiction. See Fed.R.Civ.P. 58(a)(1) (every judgment must be set forth on a separate document).

Accordingly,

IT IS ORDERED THAT:

(1) Medicis’ motion to dismiss is granted.

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(2) Medicis’ alternative motion to deactivate is moot.

(3) Each side shall bear its own costs.

We note that Perricone requests that, if the court dismisses his appeal, it dismiss without prejudice. However, it is not the practice of this court to dismiss with or without prejudice. In any event, Perricone may appeal after the district court enters final judgment.