Case: 13-1120    Document: 27    Page: 1   Filed: 04/26/2013




        NOTE: This disposition is nonprecedential.


   United States Court of Appeals
       for the Federal Circuit
                  ______________________

      MAX IMPACT, LLC AND CHANELIA LTD.,
              Plaintiffs-Appellants,

                            v.

                SHERWOOD GROUP, INC.,
                    Defendant-Appellee.
                  ______________________

                        2013-1120
                  ______________________

    Appeal from the United States District Court for the
 Southern District of New York in No. 09-CV-0902, Judge
 Lawrence M. McKenna.
                 ______________________

                      ON MOTION
                  ______________________

   Before RADER, Chief Judge, DYK and WALLACH, Circuit
                         Judges.
 RADER, Chief Judge.
                       ORDER
    Sherwood Group, Inc. moves to dismiss this appeal as
 premature. Max Impact, LLC and Chanelia, Ltd. oppose.
 Sherwood replies.
Case: 13-1120     Document: 27     Page: 2    Filed: 04/26/2013




 2                  MAX IMPACT, LLC   v. SHERWOOD GROUP, INC.
     Max Impact filed a complaint against Sherwood alleg-
 ing, inter alia, patent infringement. Sherwood filed a
 motion to dismiss Max Impact’s patent infringement
 claim for relief based upon a lack of standing. A magis-
 trate judge issued a Report and Recommendation stating
 that the motion to dismiss the patent infringement claim
 should be granted.
      Over Max Impact’s objection, the district court adopt-
 ed the Report and Recommendation and directed judg-
 ment to be entered dismissing Max Impact’s patent
 infringement claim. The dismissal order stated, in rele-
 vant part, “ORDERED, ADJUDGED AND DECREED:
 That for the reasons stated in the Court’s Memorandum
 and Order . . ., the Court accepts [the magistrate judge’s]
 decision; [Sherwood] may have judgment dismissing the
 first claim of the amended complaint.”
     Max Impact filed a notice of appeal to this court.
 Sherwood argues that the district court’s order and judg-
 ment dismissing the patent infringement claim are not
 immediately appealable because claims for relief remain
 pending in the case and the judgment was not certified
 under Federal Rule of Civil Procedure 54(b). Max Impact
 responds, arguing that the district court’s judgment
 makes clear that it intended the judgment to be final and
 appealable.
     We determine whether this court has jurisdiction un-
 der 28 U.S.C. § 1295(a)(1) by applying Federal Circuit
 law. Silicon Image, Inc. v. Genesis MicrochipInc., 395
 F.3d 1358, 1362 (Fed. Cir. 2005) (citing Nystrom v. Trex
 Company, Inc., 339 F.3d 1347, 1350 (Fed. Cir. 2003).
     We have explained that “in order for a party to appeal
 from a judgment, that judgment must be final.” Id. The
 Supreme Court has defined a final judgment as 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.” Catlin v. United States, 324 U.S. 229, 233
Case: 13-1120    Document: 27      Page: 3     Filed: 04/26/2013




  MAX IMPACT, LLC   v. SHERWOOD GROUP, INC.                 3
 (1945); see also Coopers & Lybrand v. Livesay, 437 U.S.
 463, 467 (1978).

     Rule 54(b) provides an exception to this rule in a very
 specific context:

       When an action presents more than one
       claim for relief . . . the court may direct entry
       of a final judgment as to one or more, but
       fewer than all, claims . . . only if the court ex-
       pressly determines that there is no just reason
       for delay. Otherwise, any order or other deci-
       sion, however designated, that adjudicates
       fewer than all the claims or the rights and
       liabilities of fewer than all the parties does
       not end the action as to any of the claims or
       parties . . . .

 Rule 54(b) (emphasis added).

    We have stated that

       Absent the full adjudication of all claims for
       all parties, the dismissal of any unresolved
       claims, or an express determination that
       there is no just reason for delay and an ex-
       press direction for entry of judgment as to
       fewer than all of the parties or claims under
       Fed. R. Civ. P. 54(b), there can be no “final
       decision” under 28 U.S.C. § 1295(a)(1).

 Silicon Image, 395 F.3d at 1362 (citing Nystrom, 339 F.3d
 at 1350).

    Here, the district court has not certified a judgment
 under Fed. R. Civ. P. 54(b). Nor has it provided “an
 express determination that there is no just reason for
Case: 13-1120         Document: 27   Page: 4      Filed: 04/26/2013




 4                      MAX IMPACT, LLC   v. SHERWOOD GROUP, INC.

 delay.” Additionally, nine counts remain pending before
 the district court, including three declaratory judgment
 counterclaims asserted by Sherwood.

       Accordingly,
       IT IS ORDERED THAT:
       Sherwood’s motion to dismiss is granted.
                                          FOR THE COURT

                                          /s/ Jan Horbaly
                                          Jan Horbaly
                                          Clerk

 s25

 ISSUED AS A MANDATE: April 26, 2013
