NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _____________
Nos. 23-2794, 23-2876 _____________
In re: PET GIFTS USA, LLC, Petitioner 23-2794
PET GIFTS USA, LLC, Appellant 23-2876
v.
IMAGINE THIS COMPANY LLC, TWELVE INC, BEVERLY MOSS, MICHAEL MOSS
_____________________________________
On Appeal from the United States District Court for the District of New Jersey (District Court No. 3:14-cv-03884) District Court Judge: Honorable Peter G. Sheridan _____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a) February 19, 2025
(Filed: February 20, 2025)
Before: CHAGARES, Chief Judge, BIBAS and RENDELL, Circuit Judges. _________ O P I N I O N* _________ RENDELL, Circuit Judge.
Appellant Pet Gifts USA, LLC challenges the District Court’s refusal to direct
entry of final judgment under Federal Rule of Civil Procedure 54(b). But without a final
judgment, we lack jurisdiction over this appeal. And because Appellant has not shown a
“clear abuse of discretion or clear error of law,” United States v. Wright, 776 F.3d 134,
146 (3d Cir. 2015), we will deny its mandamus petition.
I.
Appellant sued Appellees Imagine This Company, LLC, Twelve Inc, and Beverly
and Michael Moss in May 2014 for state-law causes of action related to Appellees’
manufacture of pet-themed car decal magnets. In essence, Appellant accused Appellees
of stealing Appellant’s designs. Appellees counterclaimed that the designs were theirs
and Appellant’s accusations defamed them.
The District Court dismissed most of Appellant’s claims under Federal Rule of
Civil Procedure 12(b)(6) for failure to state a claim, then granted summary judgment to
Appellees on the remainder . It declined Appellant’s request to convert its ruling to a
“final judgment” under Federal Rule of Civil Procedure 54(b), which would have allowed
Appellant to take an immediate appeal. The parties then prepared for trial on Appellees’
counterclaims.
* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent.
2 Shortly before trial, the parties reached an agreement under which Appellees’
counterclaims would be dismissed “without prejudice” but could be refiled after “final
resolution of [an] Appeal, whether resolved by withdrawal, dismissal, affirmance or
reversal.” Appx 305. The agreement also stipulated that the statute of limitations would
“not run” in the interim. Appx 305-06. The stated purpose of this arrangement was to
permit “an immediate appeal.” Appx 305. The District Court approved the agreement and
closed the case.
Appellant then filed its first appeal from the District Court’s orders dismissing and
granting summary judgment on its claims, and Appellees cross-appealed on a fees issue.
Because Appellees’ counterclaims had been dismissed without prejudice and could be
refiled, a prior panel of this Court ruled that there was no final order of the District Court
and dismissed both appeals for lack of jurisdiction. The order stated that dismissal was
“without prejudice to any party’s opportunity to reapply to the District Court for a
determination and direction under Fed. R. Civ. P. 54(b),” but expressed “no opinion as to
whether the determination and direction should be made, this being a matter within the
discretion of the District Court.” Pet Gifts USA, LLC v. Imagine This Co., LLC, Nos. 19-
1312, 19-2892, 2021 WL 3878387, at *1 (3d Cir. May 27, 2021).
For the next six months, no request under Rule 54(b) was made, and no further
activity occurred in the District Court. Appellant then filed a motion to “Dismiss
[Appellees’] Counterclaim[s] with Prejudice for Lack of Prosecution.” Dist. Ct. ECF No.
160 at 1. The motion did not contain a request for entry of final judgment under Rule
54(b), although Appellant insisted at a subsequent conference that such a request was
3 “included.” Tr. Sept. 21, 2022, p. 9. The District Court denied the motion because “there
[was] no actively pending claim for the Court to dismiss.” Id. at 18. It further stated that a
request for entry of final judgment under Rule 54(b) would have been “more apt,” but
such a request had not been made. Id.
Three months later, Appellant made the request for entry of final judgment under
Rule 54(b). The District Court denied it on the grounds that: (1) piecemeal appeals of the
claims and counterclaims would be inefficient; (2) Appellant had unreasonably delayed
in presenting the request; and (3) the lawsuit was by then more than six years old.
Appellant now seeks review of the District Court’s denial of its request for entry
of final judgment under Rule 54(b). Appellant has filed both a direct appeal from that
decision and a petition for a writ of mandamus.
II.
A.
Other than in limited circumstances, an appeal may only be taken from a “final
decision[].” 28 U.S.C. § 1291. To be final, a decision must “end[] the litigation on the
merits and leave[] nothing for the court to do but execute the judgment.” Gulfstream
Aerospace Corp. v. Mayacamas Corp., 485 U.S. 271, 275 (1988). An order that leaves
some claims dismissed without prejudice to being refiled is “[o]rdinarily” not a final
decision. Doe v. Hesketh, 828 F.3d 159, 164 (3d Cir. 2016). Exceptions to this general
rule are “where a claim dismissed without prejudice cannot be re-filed” due to the statute
of limitations having run, or where a claimant “renounces any intention to reinstate
litigation on a claim dismissed without prejudice.” Id. Neither exception is applicable
4 here. Thus, as we held in the previous appeal filed in this case, the order dismissing
Appellees’ counterclaims without prejudice is not reviewable absent the District Court
directing entry of final judgment under Rule 54(b). See Fed. Home Loan Mortg. Corp. v.
Scottsdale Ins. Co., 316 F.3d 431, 440 (3d Cir. 2003). Had the District Court entered such
a final judgment, we would have jurisdiction over an appeal. But a district court’s refusal
to make that certification under Rule 54(b) is by definition not final and therefore not
appealable. Makuc v. Am. Honda Motor Co., 692 F.2d 172, 173 (1st Cir. 1982); see also
Saber v. FinanceAmerica Credit Corp., 843 F.2d 697, 702 (3d Cir. 1988).
Appellant also asks us to take this appeal under 28 U.S.C. § 1292(b), which allows
Free access — add to your briefcase to read the full text and ask questions with AI
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _____________
Nos. 23-2794, 23-2876 _____________
In re: PET GIFTS USA, LLC, Petitioner 23-2794
PET GIFTS USA, LLC, Appellant 23-2876
v.
IMAGINE THIS COMPANY LLC, TWELVE INC, BEVERLY MOSS, MICHAEL MOSS
_____________________________________
On Appeal from the United States District Court for the District of New Jersey (District Court No. 3:14-cv-03884) District Court Judge: Honorable Peter G. Sheridan _____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a) February 19, 2025
(Filed: February 20, 2025)
Before: CHAGARES, Chief Judge, BIBAS and RENDELL, Circuit Judges. _________ O P I N I O N* _________ RENDELL, Circuit Judge.
Appellant Pet Gifts USA, LLC challenges the District Court’s refusal to direct
entry of final judgment under Federal Rule of Civil Procedure 54(b). But without a final
judgment, we lack jurisdiction over this appeal. And because Appellant has not shown a
“clear abuse of discretion or clear error of law,” United States v. Wright, 776 F.3d 134,
146 (3d Cir. 2015), we will deny its mandamus petition.
I.
Appellant sued Appellees Imagine This Company, LLC, Twelve Inc, and Beverly
and Michael Moss in May 2014 for state-law causes of action related to Appellees’
manufacture of pet-themed car decal magnets. In essence, Appellant accused Appellees
of stealing Appellant’s designs. Appellees counterclaimed that the designs were theirs
and Appellant’s accusations defamed them.
The District Court dismissed most of Appellant’s claims under Federal Rule of
Civil Procedure 12(b)(6) for failure to state a claim, then granted summary judgment to
Appellees on the remainder . It declined Appellant’s request to convert its ruling to a
“final judgment” under Federal Rule of Civil Procedure 54(b), which would have allowed
Appellant to take an immediate appeal. The parties then prepared for trial on Appellees’
counterclaims.
* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent.
2 Shortly before trial, the parties reached an agreement under which Appellees’
counterclaims would be dismissed “without prejudice” but could be refiled after “final
resolution of [an] Appeal, whether resolved by withdrawal, dismissal, affirmance or
reversal.” Appx 305. The agreement also stipulated that the statute of limitations would
“not run” in the interim. Appx 305-06. The stated purpose of this arrangement was to
permit “an immediate appeal.” Appx 305. The District Court approved the agreement and
closed the case.
Appellant then filed its first appeal from the District Court’s orders dismissing and
granting summary judgment on its claims, and Appellees cross-appealed on a fees issue.
Because Appellees’ counterclaims had been dismissed without prejudice and could be
refiled, a prior panel of this Court ruled that there was no final order of the District Court
and dismissed both appeals for lack of jurisdiction. The order stated that dismissal was
“without prejudice to any party’s opportunity to reapply to the District Court for a
determination and direction under Fed. R. Civ. P. 54(b),” but expressed “no opinion as to
whether the determination and direction should be made, this being a matter within the
discretion of the District Court.” Pet Gifts USA, LLC v. Imagine This Co., LLC, Nos. 19-
1312, 19-2892, 2021 WL 3878387, at *1 (3d Cir. May 27, 2021).
For the next six months, no request under Rule 54(b) was made, and no further
activity occurred in the District Court. Appellant then filed a motion to “Dismiss
[Appellees’] Counterclaim[s] with Prejudice for Lack of Prosecution.” Dist. Ct. ECF No.
160 at 1. The motion did not contain a request for entry of final judgment under Rule
54(b), although Appellant insisted at a subsequent conference that such a request was
3 “included.” Tr. Sept. 21, 2022, p. 9. The District Court denied the motion because “there
[was] no actively pending claim for the Court to dismiss.” Id. at 18. It further stated that a
request for entry of final judgment under Rule 54(b) would have been “more apt,” but
such a request had not been made. Id.
Three months later, Appellant made the request for entry of final judgment under
Rule 54(b). The District Court denied it on the grounds that: (1) piecemeal appeals of the
claims and counterclaims would be inefficient; (2) Appellant had unreasonably delayed
in presenting the request; and (3) the lawsuit was by then more than six years old.
Appellant now seeks review of the District Court’s denial of its request for entry
of final judgment under Rule 54(b). Appellant has filed both a direct appeal from that
decision and a petition for a writ of mandamus.
II.
A.
Other than in limited circumstances, an appeal may only be taken from a “final
decision[].” 28 U.S.C. § 1291. To be final, a decision must “end[] the litigation on the
merits and leave[] nothing for the court to do but execute the judgment.” Gulfstream
Aerospace Corp. v. Mayacamas Corp., 485 U.S. 271, 275 (1988). An order that leaves
some claims dismissed without prejudice to being refiled is “[o]rdinarily” not a final
decision. Doe v. Hesketh, 828 F.3d 159, 164 (3d Cir. 2016). Exceptions to this general
rule are “where a claim dismissed without prejudice cannot be re-filed” due to the statute
of limitations having run, or where a claimant “renounces any intention to reinstate
litigation on a claim dismissed without prejudice.” Id. Neither exception is applicable
4 here. Thus, as we held in the previous appeal filed in this case, the order dismissing
Appellees’ counterclaims without prejudice is not reviewable absent the District Court
directing entry of final judgment under Rule 54(b). See Fed. Home Loan Mortg. Corp. v.
Scottsdale Ins. Co., 316 F.3d 431, 440 (3d Cir. 2003). Had the District Court entered such
a final judgment, we would have jurisdiction over an appeal. But a district court’s refusal
to make that certification under Rule 54(b) is by definition not final and therefore not
appealable. Makuc v. Am. Honda Motor Co., 692 F.2d 172, 173 (1st Cir. 1982); see also
Saber v. FinanceAmerica Credit Corp., 843 F.2d 697, 702 (3d Cir. 1988).
Appellant also asks us to take this appeal under 28 U.S.C. § 1292(b), which allows
district courts to certify some orders for interlocutory review. But that provision is
inapplicable because the District Court has not entered such a certification, and, without
it, “we do not have authority to hear a question pursuant to § 1292(b).” Commonwealth
Ins. Co. v. Underwriters, Inc., 846 F.2d 196, 199 (3d Cir. 1988).
For these reasons, we lack jurisdiction over Appellant’s appeal.
B.
Appellant alternatively asks for a writ of mandamus requiring the District Court to
direct entry of final judgment under Rule 54(b). Mandamus “relief, however, is
extraordinary, and is appropriate only upon a showing of (1) a clear abuse of discretion or
clear error of law; (2) a lack of an alternate avenue for adequate relief; and (3) a
likelihood of irreparable injury.” Wright, 776 F.3d at 146.
Appellant has not met that high bar. Decisions under Rule 54(b) are committed to
the discretion of the District Court. Fed. Home Loan, 316 F.3d at 440. Relevant factors
5 include, but are not limited to, “whether the claims under review [are] separable from the
others remaining to be adjudicated and whether the nature of the claims already
determined [is] such that no appellate court would have to decide the same issues more
than once even if there were subsequent appeals.” Curtiss-Wright Corp. v. Gen. Elec.
Co., 446 U.S. 1, 8 (1980).
It was not a clear abuse of discretion for the District Court to view entry of final
judgment under Rule 54(b) as inappropriate, given that Appellees’ counterclaims were
mirror images of Appellant’s primary claims. Both asserted original ownership of the
magnets’ designs, meaning separate appeals would have to confront that “same issue[].”
Curtiss-Wright Corp., 446 U.S. at 8.
Appellant urges it was wrong for the District Court to base its decision, in part, on
the long delay between the dismissal of the prior appeal and Appellant’s eventual request
for a Rule 54(b) order. We disagree. We have allowed district courts to base Rule 54(b)
decisions on any relevant “miscellaneous factors,” including “delay.” Berckeley Inv.
Grp., Ltd. v. Colkitt, 455 F.3d 195, 203 (3d Cir. 2006). Given the prior panel’s express
suggestion that Appellant seek entry of judgment under Rule 54(b), it was not a clear
abuse of discretion for the District Court to take account of Appellant’s long delay in
doing so. See Schaeffer v. First Nat’l Bank of Lincolnwood, 465 F.2d 234, 235 (7th Cir.
1972) (refusing Rule 54(b) order for party’s “lack of diligence” in seeking it).
Lastly, Appellant complains it is in a “finality trap” where no appeal is possible.
Appellant’s Br. 6. Assuming this to be true, and given the unique facts of this case, we do
not find it a sufficient basis for the extraordinary remedy of mandamus. Appellant
6 challenges only the District Court’s Rule 54(b) determination, and that decision was not
clearly unreasonable. We need not opine on all the steps that led to Appellant’s
predicament or who should be blamed for each. It suffices to observe that the District
Court was not clearly mistaken in viewing Appellant as sharing some responsibility.
Accordingly, the high bar for mandamus relief has not been met.
III.
For these reasons, we will dismiss the appeal for lack of jurisdiction and deny the
mandamus petition.