Donald L. Snellman, D/b/a Norfin, Plaintiff-appellant, v. Ricoh Company, Ltd., Defendant-appellee, 902 F.2d 43 (Fed. Cir. 1990)

ORDER

Ricoh Company, Ltd. (Ricoh) moves to dismiss the appeal of Donald L. Snellman, d/b/a Norfin (Norfin). Norfin opposes the motion.

This case has a long and complex procedural history. For purposes of this motion, it is sufficient to note that this court has previously (1) reviewed and affirmed the district court's decision granting Ricoh's motion for JNOV on the issue of breach of contract by Ricoh, (2) reviewed and vacated the district court's ruling on the amount of damages due Norfin stemming from infringement by Ricoh, and (3) remanded the infringement damages issue to the district court. At the present time, retrial on damages is scheduled for July 1990.

In the course of the remand proceeding on damages, Norfin moved for leave to file an amended and supplemental complaint relating to the contract issue and for relief from judgment pursuant to Fed. R. Civ. P. 60(b) relating to the contract issue. On January 8, 1990, the district court denied both motions.

Norfin appeals from the denial of the Rule 60(b) motion. Ricoh moves to dismiss on a variety of grounds.

We dismiss on the ground that this matter is not appealable at this time. Assuming for the sake of argument that this was a proper Rule 60(b) motion, it was brought in the context of an ongoing action. An order denying a Rule 60(b) motion is not final or appealable when the order did not dispose of all matters pending between the parties in the litigation. 7 Moore's Federal Practice p 60.30 1985. See, e.g., Kerwit Med. Products v. N. & H. Instruments, 616 F.2d 833 (5th Cir. 1980) (Denial of Rule 60(b) motion was not final for purposes of 28 U.S.C. § 1291 and was not an effective termination of the district court proceedings because of district court's ongoing contempt proceeding). Arguments that the district court's rulings were improper may be made, if appropriate, on appeal after final judgment.

Accordingly,

IT IS ORDERED THAT:

Ricoh's motion to dismiss is granted.