Emmert Second Limited Partnership, I.a.m. of Puerto Rico, Inc. v. Marshalltown Company

NOTE: This order is nonprecedential.

# United States Court of Appeals for the Federal Circuit

EMMERT SECOND LIMITED PARTNERSHIP,
I.A.M. OF PUERTO RICO, INC., AND
DURA-STILT SALES LIMITED PARTNERSHIP,
Plaintiffs-Appellees,
v.
MARSHALLTOWN COMPANY,
Defendant-Appellant.

2011-1532

Appeal from the United States District Court for the
Western District of Oklahoma in case no. 10-CV-0012,
Judge Robin J. Cauthron.

## ON MOTION

Before NEWMAN, LINN, and REYNA, Circuit Judges.
LINN, Circuit Judge.

ORDER

Emmert Second Limited Partnership, et al. (Emmert)
move to dismiss this appeal as premature. Marshalltown
Company (Marshalltown) opposes. Emmert replies.

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Emmert filed a complaint in the United States Dis-
trict Court for the Western District of Oklahoma against
Marshalltown, alleging patent infringement. Marshall-
town filed a counterclaim of false patent marking. On
Emmert's motion, the district court dismissed Marshall-
town's counterclaim for failure to state a claim pursuant
to Fed. R. Civ. P. 12(b)(6). Marshalltown appealed.

Emmert contends that because its claims against
Marshalltown are still pending before the district court,
the appeal is premature. Marshalltown argues that it
may appeal because the district court, by dismissing
Marshalltown's counterclaim, effectively denied an in-
junction. Emmert replies that Marshalltown did not
specifically seek injunctive relief in its complaint and that
in any event Marshalltown has made no showing that the
district court's dismissal order might have some "serious,
perhaps irreparable, consequence" and could only be
"effectually challenged" by immediate appeal. . Carson v.
Am. Brands, Inc., 450 U.S. 79, 84 (1981) ("a litigant must
show more than that the order has the practical effect of
refusing an injunction. ... Unless a litigant can show
that an interlocutory order of the district court might
have a 'serious, perhaps irreparable, consequence,' and
that the order can be 'effectually challenged' only by
immediate appeal, the general congressional policy
against piecemeal review will preclude interlocutory
appeal.").

We agree with Emmert that the appeal is premature
and that Marshalltown has made no showing that it may
appeal under Carson. Because there are pending claims,
there is no final judgment and this appeal is premature.
See 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

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EMMERT SECOND v. MARSHALLTOWN CO
claims, there is no final decision
and therefore no
jurisdiction").

Accordingly,
IT IS ORDERED THAT:

(1) Emmert's motion to dismiss is granted.

(2) All pending motions are denied as moot.

FOR THE COURT

JAN 13 2012

Date

/s/ Jan Horbaly
Jan Horbaly
Clerk

cc: Jay P. Walters, Esq.
Meredith K. Lowry, Esq.

s20

Issued As A Mandate:

JAN 13 2012

FILED
U.S. COURT OF APPEALS FOR
THE FEDERAL CIRCUIT
JAN 13 2012

JAN HORBALY
CLERK