Johns-Manville Corp. v. Guardian Industries Corp.

• Decision Date: 20 November 1987
• Docket Number: No. 87-1415,JOHNS-MANVILLE,87-1415
• Citation: 835 F.2d 871
• Parties: Unpublished Disposition NOTICE: Federal Circuit Local Rule 47.8(b) states that opinions and orders which are designated as not citable as precedent shall not be employed or cited as precedent. This does not preclude assertion of issues of claim preclusion, issue preclusion, judicial estoppel, law of the case or the like based on a decision of the Court rendered in a nonprecedential opinion or order. CORP. and Manville Service Corp., Plaintiffs-Appellees, v. GUARDIAN INDUSTRIES CORP., Vaughn Chenoweth, Duane Faulkner, Kenneth Limburg, Robert Nishwitz, Steven Sanford, and James Schairer, Defendants-Appellants.
• Court: U.S. Court of Appeals — Federal Circuit

Page 871

835 F.2d 871

Unpublished Disposition

NOTICE: Federal Circuit Local Rule 47.8(b) states that opinions and orders which are designated as not citable as precedent shall not be employed or cited as precedent. This does not preclude assertion of issues of claim preclusion, issue preclusion, judicial estoppel, law of the case or the like based on a decision of the Court rendered in a nonprecedential opinion or order.

JOHNS-MANVILLE CORP. and Manville Service Corp., Plaintiffs-Appellees, v. GUARDIAN INDUSTRIES CORP., Vaughn Chenoweth, Duane Faulkner Kenneth Limburg, Robert Nishwitz, Steven Sanford and James Schairer, Defendants-Appellants.

No. 87-1415.

United States Court of Appeals, Federal Circuit.

Nov. 20, 1987.

Before EDWARD S. SMITH, NIES, and PAULINE NEWMAN, Circuit Judges.

EDWARD S. SMITH, Circuit Judge.

DECISION

The appeal by Guardian Industries Corporation (Guardian) from the order of the United States District Court for the Eastern District of Michigan, Johns-Manville Corp. v. Guardian Industries Corp., No. 81-70248 (E.D.Mich. May 29, 1987) (Memorandum Opinion and Order), denying Guardian's motion to reopen the district court's liability judgment in favor of Johns-Manville Corporation (Johns-Manville), is dismissed for lack of jurisdiction.

OPINION

On January 23, 1981, Johns-Manville initiated a patent infringement action against Guardian. Pursuant to a stipulation of the parties, the trial was bifurcated into a liability phase and an accounting phase. On December 15, 1983, the district court, determining that Johns-Manville's patent was valid and that Guardian had infringed, entered judgment in favor of Johns-Manville on the liability phase of trial and enjoined Guardian from any further infringement. Johns-Manville Corp. v. Guardian Industries Corp., 586 F.Supp. 1034, 221 USPQ 319 (E.D.Mich.1983), modified, 223 USPQ 974 (1984). This court affirmed in an unpublished opinion the district court's judgment. Johns-Manville Corp. v. Guardian Industries Corp., No. 84-1177 (Fed.Cir. Apr. 24, 1985).

On November 21, 1985, Johns-Manville, asserting that Guardian then was using a modified form of the device found by the district court in the 1983 judgment to be infringing, amended its original complaint to add a count alleging infringement by the modified device. Subsequently, Guardian filed a motion requesting that the district court reopen the 1983 judgment on grounds that Guardian had discovered new evidence relating to the issues of patent validity and enforceability of the Johns-Manville's patent. The district court denied Guardian's motion to reopen. Guardian now seeks appellate review of the district court's denial of Guardian's motion. We note that both the accounting phase of the litigation and the liability phase of the litigation involving Johns-Manville's amended complaint are remaining to be adjudicated by the district court.

Our first inquiry in every proceeding before this court is whether we have jurisdiction over the appeal. The jurisdiction of this court is derived solely from the statutory grant from Congress set forth in 28 U.S.C. Secs. 1292(c), 1292(d), and 1295 (1982 & Supp. III 1985). If the nature of the proceeding before us does not fall into one of these limited categories, this court is without power to hear the case. Because we conclude that the district court's order appealed from by Guardian does not fall within one of these categories, we must dismiss Guardian's appeal for lack of jurisdiction.

Guardian argues that jurisdiction of this court over its appeal from the district court's order denying Guardian's motion to reopen the 1983 judgment is based upon section 1292(c)(2). We disagree.

Section 1292(c)(2) provides the following:

(c) The United States Court of Appeals for the Federal Circuit shall have exclusive jurisdiction--

* * * * *

(2) of an appeal from a judgment in a civil action for patent infringement which would otherwise be appealable to the United States Court of Appeals for the Federal Circuit and is final except for an accounting.

The plain language of this provision clearly establishes, as grounds for our jurisdiction over an appeal, both a subject matter requirement and a completeness requirement. We have jurisdiction under this subsection only if (1) the subject matter of the trial court's judgment is otherwise appealable to this court and (2) the trial court's action is final except for an accounting.

Here, the order denying Guardian's motion to reopen the 1983 liability judgment is an element of a patent infringement proceeding brought by Johns-Manville before the district court. Because jurisdiction of the district court over the patent infringement proceeding rests on 28 U.S.C. Sec. 1338, this court, pursuant to 28 U.S.C. Sec. 1295, will have jurisdiction from a final judgment of the district court in this case. On this basis, we conclude that the district court's order meets the subject matter requirement of section 1292(c)(2). However, the order does not meet the completeness requirement of section 1292(c)(2). The district court's order does not constitute a judgment that is final except for an accounting. Still pending before the district court, along...