Bandag, Inc. v. Al Bolser Tire Stores, Inc.

• Decision Date: 11 October 1983
• Docket Number: No. 83-1286,83-1286
• Citation: 219 USPQ 1049,719 F.2d 392
• Parties: BANDAG, INC., Appellant, v. AL BOLSER TIRE STORES, INC., Appellee. Appeal
• Court: U.S. Court of Appeals — Federal Circuit

Page 392

719 F.2d 392

219 U.S.P.Q. 1049

BANDAG, INC., Appellant, v. AL BOLSER TIRE STORES, INC., Appellee.

Appeal No. 83-1286.

United States Court of Appeals Federal Circuit.

Oct. 11, 1983.

Before MARKEY, Chief Judge, FRIEDMAN and RICH, Circuit Judges.

ORDER

MARKEY, Chief Judge.

Bolser has moved for dismissal of the appeal as having been untimely filed.

Bandag filed its notice of appeal on August 5, 1983, and relies on July 6, 1983, the date when a Judgment marked "FINAL" was entered. Bolser says March 15, 1983, the date when a Memorandum Decision dealing with the count for patent infringement and the count for trademark infringement was issued, should be the date from which the time for filing a notice of appeal begins to run.

The present appeal, as all appeals must be, is from a judgment, not from an order or from a Memorandum Decision. Precise identification of the date on which a final judgment was entered is necessary because the time for filing notice of appeal under Rule 4(a) begins to run only upon "entry" of the "final judgment" appealed from. Absent entry of a final judgment, a party will not ordinarily be found to have exceeded the time period set forth in the rule, regardless of when the notice of appeal was filed. See Caperton v. Beatrice Pocahontas Coal Co., 585 F.2d 683 (4th Cir.1978); United States v. Indrelunas, 411 U.S. 216, 93 S.Ct. 1562, 36 L.Ed.2d 202 (1973).

The memorandum decision dated March 15, 1983 does not constitute a judgment, final or otherwise, from which an appeal should have been taken within thirty (30) days. The memorandum does not qualify as a separate document for the purpose of evaluating the timeliness of an appeal. See Caperton v. Beatrice Pocahontas Coal Co., supra, at 689.

The same can be said of the district court's subsequent order dated July 1, 1983. That order said the award there made and the award made in a May 13 order would constitute a final judgment, and that the May 13 order was not a final judgment:

Accordingly, plaintiff is awarded judgment in the sum of $13,604.25 as and for its attorney's fees in this case. This award and the sum of $36,212.38 awarded as damages by this Court in its order of May 13, 1983 will constitute the final judgment in this cause. The order of May 13, 1983 was not, and was not intended to be, the final judgment in this cause."

The order of July 1, 1983 did not comply with Rule 58 because it was not a separate final judgment document. On May 13, 1983, the court had issued with the order of the same date a document captioned "Judgment" and awarding plaintiff $36,212.38. Though the court indicated that its "order" of May 13 was not the final judgment, it would appear to have encompassed the judgment of May 13, as well. The court that enters a judgment is best qualified to state whether it intended that judgment as final.

Because the awards mentioned in the Final Judgment of July 6, 1983, relate only to the trademark count, and because those awards are all that appear in that separate document, Bolser says it relates only to the trademark count.

Recognizing, perhaps, that the total absence of a final judgment on the patent infringement count would defeat its motion, Bolser relies on the untenable position, as above indicated, that the Memorandum Decision of March 15, 1983 was a final judgment from the date of which a notice of appeal must have been filed within 30 days. As indicated, an appeal does not lie from a Memorandum Decision, and, if such an appeal had been filed, it would have properly been dismissed or stayed until the District...