NOTE: This order is nonprecedential
United States Court of AppeaIs
for the FederaI Circuit
EMMERT SECOND LIMITED PARTNERSHIP,
I.A.M. OF PUERTO RICO, INC., AND
DURA-STILT SALES LIMITED PARTNERSHIP,
Plain.tiffs-Appellees,
V.
MARSHALLTOWN COMPANY,
Defenclant-Appellant.
2011-1532
Appea1 from the Uni1;ed States District C0urt for the
Western District of Oklah0ma in case n0. 10-CV-OO12,
Judge R0bin J. Cauthr0n.
ON MOTION
Before NEWMAN, L1NN, and REYNA, Circuit Ju,dges.
LINN, Circuit Judge.
0 R D E R
Ernmert Sec0nd Limited Partnership, et a1. (Emmert)
move to dismiss this appeal as premature Marsha11t0wn
C0mpany (Marshal1t0wn) opposes Emn1ert replies

EMMERT SECOND V. MARSHALLTOWN CO 2
Emmert filed a complaint in the United States Dis-
trict Court for the Western District of Oklahoma against
Marshalltown, alleging patent infringement. Marshall-
town filed a counterclaim of false patent marking On
Emmert’s motion, the district court dismissed Marshall-
town’s counterclaim for failure to state a claim pursuant
to Fed. R. Civ. P. l2(b)(6). Marshalltown appealed.
Emmert contends that because its claims against
Marshalltown are still pending before the district court,
the appeal is premature. Marshalltown argues that it
may appeal because the district court, by dismissing
Marshallt0wn's counterclaim, effectively denied an in-
junction. Emmert replies that Marshalltown did not
speciEcally seek injunctive relief in its complaint and that
in any event Marshalltown has made no showing that the
district c0urt's dismissal order might have some "serious,
perhaps irreparable, consequence" and could only be
"effectually challenged" by immediate appeals Carson v.
Am. Brcmds, Inc., 450 U.S. 79, 84 (1981) ("a litigant must
show more than that the order has the practical effect of
refusing an injunction. . . . Unless a litigant can show
that an interlocutory order of the district court might
have a 'serious, perhaps irreparab1e, consequence,' and
that the order can be 'effectually challenged' only by
immediate appeal, the general congressional policy
against piecemeal review will preclude interlocutory
appeal.").
We agree with Emmert that the appeal is premature
and that Marshalltown has made no showing that it may
appeal under Cars0n. Because there are pending claims,
there is no final judgment and this appeal is premature.
See Nystrom v. Trex C0., 339 F.3d 1347, 1350 (Fed. Cir.
2003) (“If a case is not fully adjudicated as to all claims
for all parties and there is no express determination that
there is no just reason for delay or express direction for
entry of judgment as to fewer than all of the parties or

3 EMMERT SECOND V. M.ARSI-lALLTOWN CO
claims, there is no final decision . . . and therefore no
jurisdiction").
Accordingly,
I'i‘ ls 0R1)ERED THAT:
(1) Emmert’s motion to dismiss is granted
(2) All pending motions are denied as moot.
FoR THE C0URT
JAN 1 3 2012 °
/ sf J an Horbaly
Date J an Horbaly
Clerk
cc: J ay P. Walters, Esq.
Meredith K. Lowry, Esq.
s20 -
lssued As A Mandate: __  1 3 
FlLED
U.S. COUFlT 0F APPEALS FDR
Tl'IE FEDERAL C|RCUlT
JAN l3ZU1Z
JAN HORBALY
ClEBK

