NOTE: This order is nonprecedential
United States Court of AppeaIs
for the FederaI Circuit
ANDERSEN CORPORATION,
Plaintiff, '
V.
PELLA CORPORATION,
Defen,dan,t-Appellant,
V.
W.L. GORE & ASSOCIATES, INC.,
Defen,dant-Appellee. ~
2010-1481
Appea1 from the United States District Court for the
District of Minnesota in case no. 05-CV-0824, Senior
Judge James M. R0senbaum.
ON MOTION
Before GAJARSA, Circuit Judge.
0 R D E R
W.L. Gore & Associates, Inc. moves to dismiss Pel1a
Corporation’s appeal due to waiver of appeal rights Pe11a

ANDERSEN CORP V. PELLA CORP 2
opposes. W.L. Gore replies. W.L. Gore also submits a
correction to the official caption.
Anderse1'1 sued W.L. Gore and Pella of infringement of
its patent related to a reduced visibility insect screen.
W.L. Gore manufactured screen fabric material, and Pella
converted the screen material into finished window
screens that were sold as insect screens. The parties
eventually settled the underlying dispute except for one
claim involving indemnification for costs and fees in this
matter that related back to a 2003 supply agreement
between W.L. Gore & Pella.
In pertinent part, the settlement agreement in this
case provided: '
If not previously resolved by agreement of the
parties, the Indemnification Dispute will be sub-
mitted to the honorable Franklin L. Noel, Magis-
trate Judge, U.S. District Court District of
Minnesota, for binding resolution based on the
briefing of the parties The decision rendered by
Magistrate Noel shall be final
Subsequent1y, the magistrate considered Pella's request
that W.L. Gore indemnify Pella for costs and fees incurred
in the ]itigation, amounting to $4,049,249.43. The magis-
trate denied Pella's motion and determined that W.L.
Gore was not required to indemnify Pella. The magistrate
issued his determination in a "Report and Recommenda-
tion" which indicated that written objections could be filed
with the district court. Pella objected and appealed the
Inagistrate's determination to the district court. The
district court held that because the parties agreed that
the magistrates determination would be final, the magis-
trate's determination was "clearly an Order which the
parties agreed would be final and not appealable." Thus
the district court expressly declined to review the order,
although it noted "[p]arenthetica]ly, even if the Court did

3 ANDERSEN CORP V. PELLA CORP
review the Magistrate's Order, it would affirm, as the
Order is neither clearly erroneous nor contrary to law."
The district court dismissed the appeal of the magistrate's
order to that court and directed the clerk of that court to
docket the report and recommendation as an order. The
clerk entered the magistrate's order on the docket and
Pella filed an appeal, seeking review of the final order by
this court.
W.L. Gore moves to dismiss the appeal, arguing that
Pella waived its right to appeal to this court when it
agreed in the settlement agreement that the indemnifica-
tion matter would be submitted to the magistrate for
"binding resolution" and that the magistrate's determina-
tion would be "i'inal." Pella argues that the agreement did
not waive its right to appeal to this court but only waived
its right to seek district court review of the magistrate's
determination
We agree with Pella that the agreements language
indicating that the magistrate's determination would be
"final" and "binding" did not indicate that it was waiving
its right to appeal to this court. Pursuant to Fed. R. Civ.
P. 72, a nondispositive matter may be referred to a magis-
trate, who shall issue proposed findings and recommenda-
tions. Any party may file written objections and the
district court reviews the objections according1y. Pursu-
ant to Fed. R. Civ. P. 73, a magistrate may decide disposi-
tive matters by consent of the parties, and there is no
right to Hle objections to the district court. Instead, "an
appeal from a judgment entered at a magistrate judge's
direction may be taken to the court of appeals as would
any other appeal from a district-court judgment." By
indicating that the magistrate's ruling would be "final"
and "binding," it is reasonably clear that the parties
intended that the magistrate's ruling would not be subject
to review by the district court and would thus constitute
the district court's final ruling on the matter Any waiver

 "w»»_ -171
ANDERSEN CORP V. PELLA CORP 4
of the right to appeal to this court would need to be more
clear and express See, e.g., Goodsell v. Shea, 651 F.2d
765 (C.C.P.A. 1981) (finding waiver of appellate rights
when parties' agreement stated that "each party hereby
waives any and all rights of appeal from any such deci-
sion"); In re Lybarger, 793 F.2d 136 (6th Cir. 1986) (par-
ties' consent decree stated that "the parties waive all
rights of appeal and further review of or relief from the
Court's Order").
Accordingly,
IT lS ORDERED THATZ
(1) The motion to dismiss is denied. The appellant's
opening brief is due within 21 days of the date of filing of
this order.
(2) The motion to reform the caption is granted. The
revised official caption is reflected above.
FOR THE COURT
 l -f  /s/ Jan Horbaly
Date J an Horbaly
Clerk
ccc Bruce H. Little, Esq. |:5LEg
John T. Gallagher, Esq. on
Becky R. Thorson, Esq. -
38 r1AY~1 7 2011
.|AN |'BRBALY
CLEH(

