Civix-Ddi, LLC v. Hotels.com Gp, LLC and Hotels.com, L.p.

# NOTE: This order is nonprecedential.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

CIVIX-DDI, LLC,
Plaintiff-Appellant,
v.
HOTELS.COM GP, LLC AND HOTELS.COM, L.P.,
Defendants-Appellees.

2011-1599

Appeal from the United States District Court for the
Northern District of Illinois in case no. 05-CV-6869, Judge
Amy J. St. Eve.

## ON MOTION

Before RADER, Chief Judge, LINN and PROST, Circuit
Judges.

RADER, Chief Judge.

## ORDER

Hotels.com GP, LLC et al. move to dismiss Civix-DDI,
LLC's appeal for lack of jurisdiction. Civix oppose.
Hotels.com replies.

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Civix's appeal arises out of a suit it brought in the
United States District Court for the Northern District of
Illinois charging Hotels.com with infringement of 53 claims
of four patents. Hotels.com asserted four counterclaims,
including declaratory judgment of non-infringement,
invalidity of the patents asserted, unenforceability of the
patents asserted, and breach of contract.

On August 19, 2011, the district court granted
summary judgment of non-infringement on the patent
claims asserted. Despite not addressing Hotels.com's
counterclaims, the district court ordered the clerk of the
court to enter judgment on behalf of the defendant and
terminate the case. On September 15, 2011, Civix filed its
notice of appeal.

Civix does not dispute that the district court's order did
not rule on the pending counterclaims, and that this court
lacks jurisdiction over the case without such prior ruling.
See Pause Technology LLC v. TiVo Inc., 401 F.3d 1290,
1293-94 (Fed. Cir. 2005); see also Catlin v. United States,
324 U.S. 229, 233 (1945) (final judgment is a decision by
the district court that "ends the litigation on the merits and
leaves nothing for the court to do but execute the
judgment.").

Civix urges rather than dismissal that the court direct
the parties to jointly request that the district court enter
judgment nunc pro tunc under Fed. R. Civ. P. 54(b). We
deem it the better course to dismiss the appeal without
prejudice to Civix requesting the district court to enter
judgment pursuant to Rule 54(b) on its own.

Accordingly,

IT IS ORDERED THAT:

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(1) Hotel.com's motion is granted. The appeal is dis-
missed.

(2) Each side shall bear their own costs.

FOR THE COURT

MAY 0 1 2012

/s/ Jan Horbaly

Date

Jan Horbaly Clerk

cc: Raymond P. Niro, Esq.
Atif N. Khawaja, Esq.

s19

FILED
U.S. COURT OF APPEALS FOR
THE FEDERAL CIRCUIT
MAY 0 1 2012
JAN HORBALY
CLERK

ISSUED AS MANDATE:

MAY 0 1 2012