Alps South, LLC v. the Ohio Willow Wood Company

N OTE: This order is nonprecedential.
United States Court of Appeals
for the Federal Circuit
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ALPS SOUTH, LLC,
Plaintiff-Appellee,
v.
THE OHIO WILLOW WOOD COMPANY,
Defendant-Appellant.
______________________
2013-1122
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Appeal from the United States District Court for the
Middle District of Florida in case no. 08-CV-1893, Judge
Mary S. Scriven.
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ON MOTION
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Before P ROST , MOORE , and O’MALLEY , Circuit Judges.
MOORE, Circuit Judge.
O R D E R
Alps South, LLC, moves to dismiss The Ohio Willow
Wood Company’s appeal as premature. Ohio Willow
opposes.
Case: 13-1122 Document: 25 Page: 1 Filed: 04/11/2013

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ALPS SOUTH, LLC v. OHIO WILLOW WOOD CO. 2
Alps South sued Ohio Willow for patent infringement
in the United States District Court for the Middle District
of Florida. After a trial, the jury reached a verdict in
favor of Alps South. The district court subsequently
entered a first and second amended judgment. Still
pending at the district court include: the parties’ separate
motions regarding absolute or equitable intervening
rights, Alps South’s motion for enhanced damages and
fees, and Alps South’s motion for a permanent injunction.
Generally, this court has appellate jurisdiction over
only “final decisions” of the district courts. 28 U.S.C.
§ 1295. The Supreme Court “long has stated that as a
general rule a district court’s decision is appealable under
[§ 1291] only when the decision ‘ends the litigation on the
merits and leaves nothing for the court to do but execute
the judgment.’” Gulfstream Aerospace Corp. v. Ma-
yacamas Corp., 485 U.S. 271, 275 (1988) (quoting Catlin
v. United States, 324 U.S. 229, 233 (1945)). A case in
which a request for injunctive relief remains pending
cannot be said to leave nothing for the district court to do
but execute judgment. Liberty Mut. Ins. Co. v. Wetzel, 424
U.S. 737, 1206-07 (1976). Accordingly, Ohio Willow’s
contention that the second amended judgment can be
considered to be final must fail.
Furthermore, because the motion for a permanent in-
junction remains pending, the district court’s judgment is
also not “final except for an accounting” as required for
interlocutory appeal under 28 U.S.C. § 1292(c)(2). Cf.
PODS, Inc. v. Porta Stor, Inc., 484 F.3d 1359, 1365 (Fed.
Cir. 2007) (although notice of appeal was premature
because of pending request for injunctive relief, appeal
was treated as timely when district court decided injunc-
tive relief claim while appeal was pending).
We have dismissed premature appeals in similar cir-
cumstances. See Advanced Cardiovascular Systems, Inc.
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ALPS SOUTH, LLC v. OHIO WILLOW WOOD CO. 3
v. Medtronic Vascular, Inc., 231 F. App’x 962 (Fed. Cir.
2007); Surfco Hawaii v. Fin Control Sys. Pty, Ltd., 232
F.3d 910 (Fed. Cir. 2000) (unpublished). We see no rea-
son why that reasoning would not compel the same result
here, and grant the motion to dismiss.
Accordingly,
I T I S O RDERED T HAT :
(1) Alps South’s motion to dismiss is granted.
(2) All other pending motions are moot.
(3) Each side shall bear its own costs.
F OR THE COURT
/s/ Jan Horbaly
Jan Horbaly
Clerk
s23
Case: 13-1122 Document: 25 Page: 3 Filed: 04/11/2013

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