Precision Links Incorporated v. USA Products Group, Inc. and the Home Depot U.s.a., Inc.

NOTE: This order is nonprecedential.

# United States Court of Appeals for the Federal Circuit

PRECISION LINKS INCORPORATED,
Plaintiff-Appellant,

v.
USA PRODUCTS GROUP, INC. AND THE HOME
DEPOT U.S.A., INC.,
Defendants-Appellees.

2010-1538

Appeal from the United States District Court for the
Western District of North Carolina in 08-CV-0576, Judge
Martin Reidinger.

## ON MOTION

Before LOURIE, MAYER, and DYK, Circuit Judges.
DYK, Circuit Judge.

ORDER

The defendants in this patent suit, USA Products
Group, Inc. and Home Depot U.S.A., Inc. (USA Products)
move to dismiss this appeal of the patentee-plaintiff,

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Precision Links Incorporated, as untimely. Precision
Links opposes. USA Products replies.

A party seeking to appeal from a judgment of a trial
court must file a document notifying the intent to appeal
within 30 days after entry of judgment. Fed. R. App. P.
4(a)(1). That time period is mandatory and jurisdictional.
Bowles v. Russell, 551 U.S. 205 (2007) (the timely filing of
a notice of appeal in a civil case is a jurisdictional re-
quirement that cannot be waived).

On August 3, 2010, the United States District Court
for the Western District of North Carolina granted USA
Products' motion for summary judgment of noninfringe-
ment of Precision Links' patent and entered judgment in
favor of USA Products. Precision Links filed a notice of
appeal at the district court on September 7, 2010, 35 days
after the district court's entry of judgment.

USA Products moves to dismiss this appeal as un-
timely, contending that the notice of appeal was not filed
within the 30-day mandatory period of time. Precision
Links raises two arguments why dismissal is not appro-
priate on these facts. First, they argue that the July 23,
2010 "Response to the Defendant's Motion For Summary
Judgment" should be construed as a notice of appeal
which ripened upon issuance of the district court's entry
of judgment. Alternatively, Precision Links argues that
the time period for filing of a notice of appeal did not start
on August 3, 2010 because the time for filing an appeal
was extended by the district court by entry of an order
under Fed. R. Civ. P. 54.

Precision Links' arguments why this appeal should
not be dismissed are unpersuasive. Although a court may
look beyond formalities in determining whether a docu-
ment constitutes a notice of appeal, to do so here - where
the document at issue was a response to the motion upon

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which the decision seeking appeal was based - would
render Rule 4(a)(1) meaningless. Additionally, under
Rule 4(a)(2) of the Federal Rules of Appellate Procedure,
"a notice of appeal filed after the announcement of a
decision or order - but before entry of the judgment or
order - is treated as filed on the date of and after the
entry." Thus, even assuming that Precision Links' July
23, 2010 "Response to the Defendant's Motion for Sum-
mary Judgment," could be considered a notice of appeal, it
would nonetheless not fall under the Rule because it was
filed before announcement of a decision or order.

Regarding Precision Links' second argument, Rule
4(A)(iii) of the Federal Rules of Appellate Procedure
provides that "the time to file an appeal runs for all
parties from the entry of the order disposing of' a timely
filing of a motion for attorney's fees under Rule 54 of the
Federal Rules of Civil Procedure "if the district court
extends the time to appeal under Rule 58." Precision
Links contends that that is what happened here when
USA Products requested an extension of time to file a
motion for attorney fees pursuant to Rule 54 and the
district court entered an order extending the date to file a
motion for fees.

USA Products points out that the district court did
not extend the time to appeal under Fed. R. Civ. P. 58. To
be applicable, Rule 4(A)(iii) expressly requires that "the
district court extend the time to appeal under Rule 58."
The only extension granted by the district court was for
USA Products to file a motion for attorney fees, which had
no impact on the deadline for Precision Links to file its
notice of appeal. We therefore grant the motion and
dismiss the appeal for lack of jurisdiction.

Accordingly,

IT IS ORDERED THAT:

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(1) The motion is granted. The appeal is dismissed.

(2) Each side shall bear its own costs.

FOR THE COURT

DEC 0 8 2010

/s/ Jan Horbaly

Date

Jan Horbaly Clerk

cc: James M. Harrington, Esq.
Steven M. Levitan, Esq.

s19

ISSUED AS A MANDATE:

DEC 0 8 2010

FILED
U.S. COURT OF APPEALS FOR
THE FEDERAL CIRCUIT
DEC 0 8 2010

JAN HORBALY
CLERK