FALCON STAINLESS, INC., a California Corporation v. RINO COMPANIES, INC., DBA Performance Sales, a California Corp., DBA Rino Flex…

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
FALCON STAINLESS, INC., a California
Corporation,
Plaintiff - Appellant,
v.
RINO COMPANIES, INC., DBA
Performance Sales, a California Corp.,
DBA Rino Flex Connectors; JOHN
NOVELLO, DBA Performance Sales Inc.,
an individual; HARRY RIEGER, an
individual; PERFORMANCE SALES
INC., a California corporation,
Defendants - Appellees.
No. 11-56863
D.C. No. 8:08-cv-00926-AHS-
MLG
Central District of California,
Santa Ana
ORDER
Before: KLEINFELD, SILVERMAN, and HURWITZ, Circuit Judges.
This court lacks jurisdiction over the appeal because the district court’s order
granting a new trial on appellant’s claims for false advertising under 15 U.S.C. §
1125(a) and trade libel/product disparagement is an interlocutory order not
appealable as a final judgment. Eaton v. Nat’l Steel Prods. Co., 624 F.2d 863, 864
(9th Cir. 1980); Schudel v. Gen. Elec. Co., 120 F.3d 991, 994–95 & n.9 (9th Cir.
1997), abrogated on other grounds by Weisgram v. Marley Co., 528 U.S. 440
(2000). Appellant has not obtained certification pursuant to Fed. R. Civ. P. 54(b),
FILED
FEB 19 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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which would allow appeal of the order granting judgment as a matter of law on its
claims for trademark infringement and intentional interference with prospective
economic advantage. See Eaton, 624 F.2d at 864.
We order a limited remand to the district court for its consideration as to
whether its October 21, 2011 order granting appellees’ motion for judgment as a
matter of law should be certified as an appealable final judgment under Rule 54(b).
See, e.g., Rollins v. Mortgage Elec. Registration Sys., Inc., 737 F.3d 1250, 1254
(9th Cir. 2013). This panel shall retain jurisdiction over this appeal.

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