Lmk Enterprises, Inc. and Lmk Pipe Renewal, LLC v. Perma-Liner Industries, Inc.

# NOTE: This order is nonprecedential United States Court of Appeals for the Federal Circuit

LMK ENTERPRISES, INC. AND
LMK PIPE RENEWAL, LLC,
Plaintiffs-Appellees,

V.
PERMA-LINER INDUSTRIES, INC.,
Defendant-Appellant.

2011-1042

Appeal from the United States District Court for the
Middle District of Florida in case no. 08-CV-0811, Judge
Elizabeth A. Kovachevich.

ON MOTION

Before RADER, Chief Judge, LOURIE and O'MALLEY, Cir-
cuit Judges.
RADER, Chief Judge.

ORDER

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LMK Enterprises, Inc. and LMK Pipe Renewal, LLC
move to dismiss Perma-Liner Industries, Inc.'s appeal for
lack of jurisdiction. Perma-Liner opposes. LMK replies.

This matter arises out of a suit brought by LMK
against Perma-Liner, alleging that Perma-Liner's Inner-
Seal system infringed LMK's patent. On July 7, 2008, the
United States District Court for the Middle District of
Florida entered a Consent Judgment and Injunction. The
court's order enjoined Perma-Liner from using its Perma-
Liner InnerSeal system or any colorable variation that
infringed LMK's patent without a license. The court
expressly retained jurisdiction over the matter to enforce
the injunction. The parties agreed to a license.

The license terminated in January 2009. By that
time, Perma-Liner had made some modifications to its
system. LMK moved the district court for a contempt
order, which the court granted. In its contempt order, the
court retained jurisdiction "for entry of an order awarding
monetary sanctions, including the award of attorney's fees
and costs." In a second order, the court ordered an imme-
diate cessation of any sales of the original or modified
products and further directed the parties to confer and
make arrangements to complete an accounting of Perma-
Liner's sales.

With the matters of an accounting, sanctions, and at-
torney's fees still pending before the trial court, we agree
that this appeal was brought prematurely. As a general
rule, an adjudication of civil contempt, such as here, is not
appealable until sanctions have been imposed. See Dono-
van v. Mazzola, 761 F.2d 1411, 1416-17 (9th Cir. 1985)
("[A]n adjudication of civil contempt is not appealable
until sanctions have been imposed."); see also Am. Saint
Gobain Corp. v. Armstrong Glass Co., 418 F.2d 571 (6th
Cir. 1969).

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Although Perma-Liner is correct that certain circum-
stances warrant immediate appeal, we are not persuaded
that such circumstances exist on these facts for two
reasons. First, we are not moved by the argument that
the trial court modified the injunction rather than merely
interpreting and enforcing the injunction already in place.
See Entegris, Inc. v. Pall Corp., 490 F.3d 1340, 1344-45
(Fed. Cir. 2007) (explaining that a contempt order inter-
preting or enforcing an injunction is not generally appeal-
able until final judgment). Second, although an appeal
from a post-judgment contempt order is immediately
appealable pursuant to 28 U.S.C. § 1292(c)(2) when all
that remains is an accounting of damages, H.A. Jones Co.,
Inc. v. KSM Fastening Sys., 745 F.2d 630 (Fed. Cir. 1984),
here sanctions also remain pending. We have considered
Perma-Liner's other arguments but remain convinced
that we must dismiss the appeal for lack of jurisdiction.

Accordingly,

IT IS ORDERED THAT:

(1) The motion to dismiss is granted.

(2) Each side shall bear its own costs.

FOR THE COURT

MAY 2 0 2011

/s/ Jan Horbaly

Date

Jan Horbaly Clerk

cc: Jeffrey D. Harty, Esq.
Richard J. Mockler, III, Esq.
s19

ISSUED AS MANDATE:

MAY 2 0 2011

FILED
U.S. COURT OF APPEALS FOR
THE FEDERAL CIRCUIT
MAY 20 2011

JAN HORBALY
CLERK