Nissim Corp. v. Clearplay, Inc. , 558 F. App'x 1025 ( 2014 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
NISSIM CORP.,
Plaintiff-Appellant,
v.
CLEARPLAY, INC.,
LEE JARMAN, AND MATTHEW JARMAN,
Defendants-Appellees.
______________________
2013-1429
______________________
Appeal from the United States District Court for the
Southern District of Florida in No. 04-CV-21140, Judge
Paul C. Huck.
______________________
Decided: March 14, 2014
______________________
JOHN C. CAREY, Carey Rodriguez Greenberg O’Keefe,
LLP, of Miami, Florida, argued for plaintiff-appellant.
ERIC BRIAN STORM, The Storm Law Firm, PLLC, of
Austin, Texas, argued for defendants-appellees.
______________________
Before NEWMAN, MOORE, and HUGHES, Circuit Judges.
2 NISSIM CORP. v. CLEARPLAY, INC.
HUGHES, Circuit Judge.
Nissim Corp. appeals from a district court order with-
drawing jurisdiction to enforce a settlement agreement
between Nissim and ClearPlay, Inc. Nissim also asks this
court to review two orders denying summary judgment.
We may only review final judgments. Because Nissim
explicitly waived its right to challenge the only final
judgment properly on appeal, we dismiss the appeal for
lack of jurisdiction.
I.
On May 13, 2004, Nissim Corp. sued ClearPlay, Inc.
and its founders, Matthew and Lee Jarman (collectively,
“ClearPlay”) for patent infringement, misappropriation of
trade secrets, and breach of contract. The parties eventu-
ally settled five days before trial, and the district court
promptly dismissed Nissim’s suit with prejudice on No-
vember 30, 2005. The court retained jurisdiction, howev-
er, “solely to enforce the terms of the settlement
agreement entered into between the parties.” J.A. 391.
Two years later, Nissim returned to the district court
and moved to enjoin ClearPlay from engaging in activities
allegedly outside the scope of the settlement agreement.
Although the district court issued several interlocutory
rulings during the proceedings that followed, it never
resolved the merits of Nissim’s claims. 1 Instead, the
district court withdrew its discretionary jurisdiction over
the settlement agreement without further ruling on any
substantive issues in the case.
On appeal, Nissim does not challenge the district
court’s withdrawal of jurisdiction. Nissim bases its ap-
1 For a more thorough discussion of the procedural
history, see generally Nissim Corp. v. ClearPlay, Inc., 499
F. App’x 23 (Fed. Cir. 2012).
NISSIM CORP. v. CLEARPLAY, INC. 3
peal on two issues the district court addressed in prior,
unrelated orders denying summary judgment: (1) the
district court’s allegedly erroneous interpretation of the
settlement agreement and (2) ClearPlay’s alleged conces-
sion of noncompliance with the settlement agreement.
II.
The final judgment rule limits appellate review to is-
sues that “end[] the litigation on the merits and leave[]
nothing for the court to do but execute the judgment.”
Robert Bosch, LLC v. Pylon Mfg. Corp., 719 F.3d 1305,
1308 (Fed. Cir. 2013) (en banc) (quoting Firestone Tire &
Rubber Co. v. Risjord, 449 U.S. 368, 373 (1981)) (internal
quotation marks omitted); see also 28 U.S.C. § 1295 (a)(1)
(2012).
An order denying summary judgment is not a final
judgment. As the Supreme Court has explained, “the
denial of a motion for a summary judgment because of
unresolved issues of fact does not settle or even tentative-
ly decide anything about the merits of the claim. It is
strictly a pretrial order that decides only one thing—that
the case should go to trial.” Switz. Cheese Ass’n, Inc. v. E.
Horne’s Mkt., Inc., 385 U.S. 23, 25 (1966). Accordingly,
the final judgment rule generally “prohibits a party from
appealing a district court’s denial of a motion for sum-
mary judgment.” Lermer Germany GmbH v. Lermer
Corp., 94 F.3d 1575, 1576 (Fed. Cir. 1996).
A district court’s decision to withdraw discretionary
jurisdiction is a final judgment, reviewable for abuse of
discretion. See Carlsbad Tech., Inc. v. HIF Bio, Inc., 556
U.S. 635, 640 (2009). And because it “is not a jurisdic-
tional matter,” id., a party can waive review of that
discretionary decision. See, e.g., Durant v. Servicemaster
Co., 109 F. App’x 27, 31 (6th Cir. 2004); N.J. Turnpike
Auth. v. PPG Indus., Inc., 197 F.3d 96, 113 (3d Cir. 1999);
Int’l Coll. of Surgeons v. Chicago, 153 F.3d 356, 366 (7th
Cir. 1998); Acri v. Varian Assocs., Inc., 114 F.3d 999, 1001
4 NISSIM CORP. v. CLEARPLAY, INC.
(9th Cir. 1997) (en banc); Doe ex rel. Fein v. Dist. of Co-
lumbia, 93 F.3d 861, 871 (D.C. Cir. 1996).
Here, Nissim explicitly waived its right to challenge
the district court’s withdrawal of jurisdiction by stating,
“Nissim believes the district court’s withdrawal of juris-
diction was an abuse of discretion, but . . . Nissim does not
appeal that aspect of the district court’s order.” Appellant
Br. 6 n.1. Accordingly, we do not disturb the district
court’s final order withdrawing jurisdiction.
The only orders Nissim attempts to appeal are two
non-final orders denying summary judgment. To over-
come the final judgment rule, Nissim argues that those
orders are reviewable because they are “sufficiently firm”
to trigger collateral estoppel (i.e., issue preclusion). See
RF Del., Inc. v. Pac. Keystone Techs., Inc., 326 F.3d 1255,
1261–62 (Fed. Cir. 2003). Given the contentious nature of
these proceedings, see, e.g., Nissim Corp. v. ClearPlay,
Inc., 499 F. App’x 23, 27, 27 n.4 (Fed. Cir. 2012), we
understand Nissim’s concern that ClearPlay might at-
tempt to use those rulings as the basis for a collateral
estoppel argument in future proceedings. For at least
three reasons, we find that these interlocutory rulings
should not be the basis for collateral estoppel.
First, ClearPlay’s counsel conceded during oral argu-
ment that collateral estoppel would not apply in a related
case. Oral Argument at 29:10–30:35, Nissim Corp. v.
ClearPlay, Inc., No. 2013-1429 (Fed. Cir. Jan. 7, 2014),
available at http://oralarguments.cafc.uscourts.gov/
default.aspx?fl=2013-1429.mp3. Thus, a court could find
that this concession precludes ClearPlay from adopting a
contrary position. See, e.g., Organic Seed Growers and
Trade Ass’n v. Monsanto Co., 718 F.3d 1350, 1358 (Fed.
Cir. 2013).
Second, it seems unlikely that a court would find the
prerequisites for collateral estoppel satisfied under the
circumstances. See S.E.L. Maduro, Inc. v. M/V Antonio
NISSIM CORP. v. CLEARPLAY, INC. 5
de Gastaneta, 833 F.2d 1477, 1483 (11th Cir. 1987) (not-
ing that collateral estoppel applies only when a particular
issue “was raised, litigated, and adjudicated in a prior
lawsuit, and if the adjudication of the issue was necessary
to the outcome of the prior lawsuit”). In this appeal,
although the issues subject to the interlocutory rulings
were raised, those rulings were not necessary to the
outcome of this suit—the withdrawal of jurisdiction to
enforce the settlement agreements.
Third, even if a court were to find the prerequisites
for collateral estoppel satisfied, this court’s determination
that the orders denying summary judgment are unre-
viewable on appeal should nevertheless preclude the
application of collateral estoppel. See W.R. Huff Asset
Mgmt. Co. v. Kohlberg, Kravis, Roberts & Co., 566 F.3d
979, 985 (11th Cir. 2009) (endorsing the view that issue
preclusion does not apply when “[t]he party against whom
preclusion is sought could not, as a matter of law, have
obtained review of the judgment in the initial action”).
Accordingly, we decline to review the district court’s
interlocutory orders denying summary judgment and
dismiss Nissim’s appeal for lack of jurisdiction.
DISMISSED