Cool Baby, Inc. v. Munchkin, Inc.

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# United States Court of Appeals for the Federal Circuit 2009-1388

COOL BABY, INC.,

Plaintiff-Appellant,
V.
MUNCHKIN, INC.,
Defendant-Appellee,
and
LUV N' CARE, LTD.,

Defendant-Appellee.

Appeal from the United States District Court for the Western District of Oklahoma in
case no. 06-CV-1015, Chief Judge Vicki Miles-LaGrange.

ON MOTION

Before SCHALL, PROST, and MOORE, Circuit Judges.
PROST, Circuit Judge.

## ORDER

Munchkin Inc. (Munchkin) and Luv n' care Ltd. (Luv) move to dismiss Cool Baby,
Inc.'s (Cool Baby) appeal for lack of jurisdiction and request attorney fees. Cool Baby
opposes. Munchkin and Luv reply.

Cool Baby filed suit against Munchkin and Luv alleging patent infringement. Both
Munchkin and Luv filed counterclaims for declaratory judgments of noninfringement and
invalidity and filed motions for summary judgment based on noninfringment and
invalidity. Subsequently, the district court granted Munchkin and Luv's motions for

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summary judgment of noninfringement and entered a judgment. Cool Baby then
appealed to this court. The district court stated that because it granted summary
judgment of noninfringement, it "declines to address the issue of patent invalidity."
However, at the end of the same order, the district court stated that it granted summary
judgment on noninfringement and invalidity, although it did not decide invalidity.

Munchkin and Luv contend that there are pending counterclaims before the
district court and thus the appeal is premature. Cool Baby concedes that the district
court did not specifically address invalidity in its order granting summary judgment.
However, Cool Baby asserts that the district court impliedly granted summary judgment
on invalidity. Cool Baby requests that this court remand to the district court so that it
may provide a more detailed analysis in granting summary judgment on invalidity.

Although the district court's order is not entirely clear, we determine that the
district court did not grant Munchkin and Luv's motions for summary judgment on
invalidity and that their invalidity counterclaims are pending. Because there are pending
counterclaims, there is no final judgment and this appeal is premature. See Pause
Tech., LLC v. Tivo Inc., 401 F.3d 1290, 1294 (Fed. Cir. 2005) (stating that "a pending
counterclaim precludes jurisdiction absent certification under Rule 54(b)"); 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.") Thus, we dismiss. Cool Baby may, of course, file a notice of appeal
after the district court disposes of all claims and enters final judgment.

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Accordingly,
IT IS ORDERED THAT:

(1)
The motion to dismiss is granted.

(2)
Munchkin and Luv's request for attorney fees is denied.

(2)
Each side shall bear its own costs.

FOR THE COURT

SEP - 1 2009

Date

/s/ Jan Horbaly
Jan Horbaly
Clerk

cc:
Mack J. Morgan, Esq.
Morris E. Cohen, Esq.
John L. Knoble, Esq.

PILER
U.S. COURT OF APPEALS FOR
THE FEDERAL CIRCUIT

$20

SEP -1 2009
JAN HORBALY
CLERK

ISSUED AS A MANDATE:

SEP - 1 2009

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