F & G Research, Inc. v. Paten Wireless Technology, Inc. ( 2007 )

NOTE: This order is nonprecedential.
United States Court of Appeals for the Federal Circuit
2007-1095, -1166
F & G RESEARCH, INC.,
Plaintiff-Appellant,
v.
PATEN WIRELESS TECHNOLOGY, INC.,
Defendant-Cross Appellant.
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2007-1206
F & G RESEARCH, INC.,
Plaintiff-Appellant,
v.
PATEN WIRELESS TECHNOLOGY, INC.,
Defendant-Appellee.
ON MOTION
Before BRYSON, Circuit Judge, FRIEDMAN, Senior Circuit Judge, and PROST, Circuit
Judge.
PROST, Circuit Judge.
ORDER
F & G Research, Inc. and Paten Wireless Technology, Inc. each respond to the
court’s orders concerning whether appeal nos. 2007-1095 and 2007-1166 should be
dismissed as premature. Paten moves to dismiss 2007-1095 and 2007-1166. F & G
responds. Paten replies.
F & G filed a patent infringement suit against Paten. F & G Research, Inc. v.
Paten Wireless Tech., Inc., No. 06-CV-60292 (S.D. Fla.). Paten did not file an answer
and the district court entered a default judgment. Paten filed a notice of appeal directed
to the United States Court of Appeals for the Eleventh Circuit, which was later
transferred to this court and docketed as 2007-1166. The district court subsequently
reinstated the case. F & G filed a petition to reinstate the default judgment. The district
court denied the petition on October 27, 2006, and F & G appealed. That appeal was
docketed as 2007-1095. On February 14, 2007, the district court determined that it
lacked personal jurisdiction over Paten and dismissed the case. F & G appealed, and
that appeal was docketed as 2007-1206.
Paten states that it does not wish to pursue its appeal, 2007-1166. F & G
opposes but does not sufficiently explain the basis for its opposition. Therefore, we
dismiss Paten’s appeal, 2007-1166.
F & G’s first appeal, 2007-1095, seeks review of the district court’s order denying
F & G’s petition to reinstate the default judgment. Because proceedings were ongoing
in the district court at the time F & G filed this appeal, it was filed prematurely and thus
is dismissed. See 28 U.S.C. § 1295 (a)(1); Nystrom v. Trex Co., 339 F.3d 1347, 1350
(Fed. Cir. 2003) (“If a case is not fully adjudicated as to all claims for all parties and
there is no express determination that there is no just reason for delay or express
direction for entry of judgment as to fewer than all of the parties or claims, there is no
final decision under 28 U.S.C. § 1295 (a)(1) and therefore no jurisdiction”).
Accordingly,
IT IS ORDERED THAT:
(1) Paten’s motion to dismiss 2007-1095 and 2007-1166 is granted.
2007-1095, -1166, 2007-1206 2
(2) Each side shall bear its own costs for 2007-1095 and 2007-1166.
(3) The revised official caption for 2007-1206 is reflected above.
(4) F & G’s brief in 2007-1206 is due within 30 days of the date of filing of this
order.
FOR THE COURT
April 4, 2007 /s/ Sharon Prost
Date Sharon Prost
Circuit Judge
cc: Allen D. Brufsky, Esq.
Alexander Y. Thomas, Esq.
s17
ISSUED AS A MANDATE (for 2007-1095 and 2007-1166 only): April 4, 2007
2007-1095, -1166, 2007-1206 3