Smith Corona Corporation, Plaintiff-appellee, v. Pelikan, Inc., Defendant-appellant, 937 F.2d 622 (Fed. Cir. 1991)Annotate this Case
It has come to the attention of the court that no notice of appeal has been filed in this case.
Accordingly, this court never having had jurisdiction,*
IT IS ORDERED THAT:
(1) All orders issued herein are vacated.
(2) The case is dismissed.
Pelikan, Inc. apparently misunderstands 28 U.S.C. § 1292(a) (1), (c) (1) and Fed. R. App. P. 8. Section 1292, governing interlocutory decisions, permits a party to appeal from an interlocutory order granting an injunction. Rule 8, governing stays or injunctions, pending appeal, permits a party to move for a stay, pending appeal, of an injunction. However, that party must first file a notice of appeal from the injunction order. Indeed, Fed. Cir. R. 8(a) requires that a "motion for stay or injunction, pending appeal, must be accompanied by a copy of the notice of appeal that has been filed with the clerk of the trial court."
Review by mandamus is not appropriate where a normal appeal could have been filed. Moses H. Cone Hospital v. Mercury Constr. Corp., 460 U.S. 1, 8 n. 6 (1983) ("more fundamentally, a court of appeals has no occasion to engage in extraordinary review by mandamus in 'aid of its jurisdiction,' 28 U.S.C. § 1651, when it can exercise the same review by a contemporaneous ordinary appeal."