Trovan Ltd. v. Pfizer, Inc.

Ninth Circuit

Trovan Ltd. v. Pfizer, Inc.

23 F. App'x 671

CourtCourt of Appeals for the Ninth Circuit

DecidedNovember 1, 2001

DocketNo. 00-56083; D.C. No. CV-98-00094-LGB

StatusPublished

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This text of 23 F. App'x 671 (Trovan Ltd. v. Pfizer, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Trovan Ltd. v. Pfizer, Inc., 23 F. App'x 671 (9th Cir. 2001).

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Opinion

MEMORANDUM

*

Trovan Ltd., and its California licensee, Electronic Identification Devices, Ltd., (collectively Trovan), appeal the district court’s order vacating a permanent injunction after the court ordered a new trial as to liability in Trovan’s action against Pfizer, Inc. We dismiss for lack of jurisdiction.

In general, an order granting a new trial is interlocutory in nature and cannot be immediately appealed. See Allied Chem. Corp. v. Daiflon, 449 U.S. 33, 34-36, 101 S.Ct. 188, 190-91, 66 L.Ed.2d 193 (1980); Roy v. Volkswagenwerk Aktiengesellschaft, 781 F.2d 670, 671 (9th Cir.1985). A claim that the grant was improper must wait for review until there is a final judgment. Allied Chem., 449 U.S. at 36, 101 S.Ct. at 191. So it is here.

We recognize that we often have jurisdiction over appeals from orders dissolving injunctions¹ and that the inevitable result of the new trial order was to dissolve the injunction based upon it because the injunction then lacked any support whatsoever. Thus, if we did not scratch the surface of Trovan’s argument, it would appear that we have jurisdiction anyway. But we have scratched the surface, and that scratches Trovan’s argument also.

In the first place, because of the posture of this case there are no factual determinations for or against Trovan’s injunction claim. Those remain in controversy, and, in effect, the district court has neither [672]*672granted nor denied injunctive relief. See Gamboa v. Chandler, 101 F.3d 90, 91 (9th Cir.1996) (en banc); Shanks v. City of Dallas, 752 F.2d 1092, 1096-97 (5th Cir.1985). Secondly, the grant of a new trial had “no direct or irreparable effect on the merits of the controversy.” Gardner v. Westinghouse Broad. Corp., 437 U.S. 478, 482, 98 S.Ct. 2451, 2454, 57 L.Ed.2d 364 (1978). It did not “reflect on the legal sufficiency of the claim for injunctive relief.” Id. at 482 n. 9, 98 S.Ct. at 2454 n. 9.

In fine, we lack jurisdiction to hear Trovan’s appeal.

DISMISSED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.

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MEMORANDUM

*

Trovan Ltd., and its California licensee, Electronic Identification Devices, Ltd., (collectively Trovan), appeal the district court’s order vacating a permanent injunction after the court ordered a new trial as to liability in Trovan’s action against Pfizer, Inc. We dismiss for lack of jurisdiction.

In general, an order granting a new trial is interlocutory in nature and cannot be immediately appealed. See Allied Chem. Corp. v. Daiflon, 449 U.S. 33, 34-36, 101 S.Ct. 188, 190-91, 66 L.Ed.2d 193 (1980); Roy v. Volkswagenwerk Aktiengesellschaft, 781 F.2d 670, 671 (9th Cir.1985). A claim that the grant was improper must wait for review until there is a final judgment. Allied Chem., 449 U.S. at 36, 101 S.Ct. at 191. So it is here.

We recognize that we often have jurisdiction over appeals from orders dissolving injunctions¹ and that the inevitable result of the new trial order was to dissolve the injunction based upon it because the injunction then lacked any support whatsoever. Thus, if we did not scratch the surface of Trovan’s argument, it would appear that we have jurisdiction anyway. But we have scratched the surface, and that scratches Trovan’s argument also.

In the first place, because of the posture of this case there are no factual determinations for or against Trovan’s injunction claim. Those remain in controversy, and, in effect, the district court has neither [672]*672granted nor denied injunctive relief. See Gamboa v. Chandler, 101 F.3d 90, 91 (9th Cir.1996) (en banc); Shanks v. City of Dallas, 752 F.2d 1092, 1096-97 (5th Cir.1985). Secondly, the grant of a new trial had “no direct or irreparable effect on the merits of the controversy.” Gardner v. Westinghouse Broad. Corp., 437 U.S. 478, 482, 98 S.Ct. 2451, 2454, 57 L.Ed.2d 364 (1978). It did not “reflect on the legal sufficiency of the claim for injunctive relief.” Id. at 482 n. 9, 98 S.Ct. at 2454 n. 9.

In fine, we lack jurisdiction to hear Trovan’s appeal.

DISMISSED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.

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