Green Edge Enterprises, LLC v. Rubber Mulch Etc., LLC, Groundscape Technologies, LLC, and Rubber Resources, Ltd., Llp

# NOTE: This order is nonprecedential. United States Court of Appeals for the Federal Circuit

GREEN EDGE ENTERPRISES, LLC,
Plaintiff/Counterclaim Defendant,
v.
RUBBER MULCH ETC., LLC, GROUNDSCAPE
TECHNOLOGIES, LLC, AND RUBBER RESOURCES,
LTD., LLP,
Defendants/Counterclaimants,
V.
\-
INTERNATIONAL MULCH COMPANY AND
MICHAEL MILLER,
Counterclaim Defendants,
V.
JUDY SMITH,
Counterclaim Defendant,
AND
LEE GREENBERG,
Counterclaim Defendant-Appellant.

2012-1126

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Appeal from the United States District Court for the
Eastern District of Missouri in case no. 02-CV-0566,
Magistrate Judge Terry I. Adelman.

## ON MOTION

Before RADER, Chief Judge, GAJARSA and REYNA, Circuit
Judges.

PER CURIAM.

## ORDER

International Mulch Company and Michael Miller
(collectively, IMC) move to dismiss Lee Greenberg's
appeal as untimely. Greenberg opposes. Judy Smith also
moves to intervene.

Green Edge Enterprises, LLC asserted claims of pat-
ent infringement against Rubber Mulch Etc. LLC,
Groundscape Technologies, LLC, and Rubber Resources,
Ltd in the United Stated District Court for the Eastern
District of Missouri. Rubber Resources filed counter-
claims adding IMC and Miller as defendants. Specifically,
Rubber Resources sought a declaration that the patent
was invalid and unenforceable and also contended that
Green Edge and IMC had asserted the patent in bad faith
in violation of the Lanham Act, 15 U.S.C. § 1125.

The district court bifurcated the patent claims from
the Lanham Act claims and held a jury trial on the patent
claims. The jury returned a verdict that the patent was
willfully infringed and that the patent was invalid due to
anticipation and obviousness. IMC moved for entry of
final judgment pursuant to Rule 54(b) of the Federal
Rules of Civil Procedure. On August 22, 2011, the district
court entered the following docket entry in its entirety
without any accompanying order or memorandum:

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IT IS HEREBY ORDERED that [IMC]'s Mo-
tion for Entry of Final Appealable Judgment
Pursuant to Federal Rule of Civil Procedure
54(b) [Doc. # 563] is GRANTED. IT IS
FURTHER ORDERED that the Judgment
entered on August 9, 2011 [Doc. # 556] is
hereby made final and immediately appeal-
able in accordance with Fed. R. Civ. P. 54(b).
Signed by Magistrate Judge Terry I. Adel-
man on 8/22/11.

On September 19, 2011, Greenberg filed a "motion for
a new trial," which was denied by the district court the
following day. On December 13, 2011, Greenberg filed his
notice of appeal.

IMC moves to dismiss Greenberg's appeal for lack of
jurisdiction. IMC argues that Greenberg's appeal had to
be received by the district court no later than October 20,
2011 or 30 days from the date of the district court's denial
of Greenberg's motion for a new trial. Because Green-
berg's appeal was not received until December 13, 2011,
IMC argues that this court lacks jurisdiction over the
appeal and must dismiss.

The court agrees with IMC's argument that this court
lacks jurisdiction over this appeal, but not because the
appeal was filed at the district court too late.

Rule 54(b) provides that "the court may direct entry of
a final judgment as to one or more, but fewer than all,
claims or parties only if the court expressly determines
that there is no just reason for delay." In ilor LLC v.
Google Inc., 550 F.3d 1067, 1072 (Fed. Cir. 2008), this
court explained that "it must be apparent, either from the
district court's order or from the record itself, that there is
a sound reason to justify departure from the general rule
that all issues decided by the district court should be
resolved in a single appeal of a final judgment."

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Here, the district court did not expressly determine
that there was no just reason for delay and provided no
reason for justifying a departure from the normal course
of an appeal on all issues after final judgment. Because
there is neither a final judgment nor an appealable judg-
ment under Rule 54(b), the court dismisses the appeal for
lack of jurisdiction.

Accordingly,

IT IS ORDERED THAT:

(1) The appeal is dismissed.

(2) Each side shall bear its own costs.

(3) The motion to intervene and the motion to dismiss
are moot.

FOR THE COURT

MAR 1 5 2012

Date

/s/ Jan Horbaly
Jan Horbaly
Clerk

cc: Lee Greenberg
Keith A. Rabenberg, Esq.
Judy Smith

s19

FILED
U.S. COURT OF APPEALS FOR
THE FEDERAL CIRCUIT
MAR 15 2012

JAN HORBALY
CLERK