National Presto Industries, Inc. v. Dazey Corp.
| Decision Date | 28 September 1994 |
| Docket Number | No. 94-1365,94-1365 |
| Citation | 39 F.3d 1195 |
| Parties | NOTICE: Federal Circuit Local Rule 47.6(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issue preclusion, judicial estoppel, law of the case or the like based on a decision of the Court rendered in a nonprecedential opinion or order. NATIONAL PRESTO INDUSTRIES, INC., Plaintiff-Appellee, v. DAZEY CORPORATION, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Federal Circuit |
Before CLEVENGER, Circuit Judge, COWEN, Senior Circuit Judge, and SCHALL, Circuit Judge.
ON MOTION
ORDER
Dazey Corporation moves for clarification of jurisdiction, i.e., whether it has appealed from a final, appealable order. National Presto Industries, Inc. moves to dismiss Dazey's appeal. Dazey opposes the motion to dismiss. Both parties submit additional responses in accordance with the court's order.
In 1990, Presto sued Dazey for patent and trade dress infringement. The parties ultimately settled their dispute. In March 1992, a consent judgment was entered. The consent judgment stated, inter alia, that Dazey's QUIK FRY infringed Presto's patent and trade dress. Dazey was enjoined from making, using, or selling its QUIK FRY.
Later, in December 1992, Dazey filed in the district court an "emergency motion for court determination, clarification, and confirmation of consent judgment and settlement agreement." Specifically, Dazey wanted to know if the color of its DCF-31 fryer was in violation of the settlement agreement which barred manufacture of fryers of a particular black color. The matter was referred to a magistrate who treated Dazey's motion as seeking a declaration that it did not violate the terms of the settlement agreement by manufacturing a dark charcoal gray/black fryer.
The magistrate determined that the color Dazey utilized did violate the settlement agreement and recommended that Dazey's motion be denied. On review of the magistrate's report and recommendation, the district court on May 13, 1994 overruled Dazey's objections and denied Dazey's motion for a declaration that it did not violate the terms of the settlement agreement. On May 24, Presto filed a motion for attorney fees and for leave to ascertain alleged damages.
Dazey appealed and argues here that the May 13 order is a final appealable order notwithstanding Presto's motions. Dazey argues that Presto's motions are not post-judgment motions that would toll the time for appeal, but are simply motions that should have been asserted in the context of the proceeding, not after Dazey's motion was denied. In response, Presto argues that its pending motions are post-judgment motions that render the appeal premature. *
The posture of the district court...
To continue reading
Request your trial
-
National Presto Industries, Inc. v. Dazey Corp.
...1994). Dazey appealed the adverse decision, but this court dismissed the appeal as premature. National Presto Indus. v. Dazey Corp., 39 F.3d 1195, 1994 WL 558826 (Fed.Cir. Sept.28, 1994) (table). In the interim between the district court's order and this court's dismissal, the United States......