Notice: Fifth Circuit Local Rule 47.5.3 States That Unpublished Opinions Should Normally Be Cited Only when They Establish the Law of the Case, Are Relied Upon As a Basis for Res Judicata or Collateral Estoppel, or Involve Related Facts. if an Unpublished Opinion is Cited, a Copy Shall Be Attached to Each Copy of the Brief.additive Controls & Measurement Systems, Inc., Plaintiff-appellant, v. Flowdata, Inc. and Titan Industries, Inc., Defendants-appellees, 40 F.3d 1249 (Fed. Cir. 1994)

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U.S. Court of Appeals for the Federal Circuit - 40 F.3d 1249 (Fed. Cir. 1994)

Sept. 23, 1994



SCHALL, Circuit Judge.


Flowdata, Inc. moves to stay or deactivate Additive Controls & Measurement Systems, Inc.'s (Adcon) appeal or, in the alternative, to dismiss Adcon's appeal. Adcon opposes.

On July 12, 1994, the United States District Court for the Southern District of Texas issued an order modifying the injunction it had issued against Adcon on August 2, 1993. The modified injunction enjoined, in addition to Adcon, Galen M. Cotton, Truflo Instrumentation, Inc., TruGear, Inc., Nice Instrument Sales, Inc., David M. Yates, and Jack Harshman. The injunction also enjoined Adcon and the referenced persons and companies from making, using, or selling an additional product. Adcon moved to vacate the order and for modification of the findings and conclusions. Adcon argued that the order improperly broadened the injunction against Adcon, which was out of business, and improperly enjoined persons and companies that were not parties to the action. Flowdata responded and filed a countermotion to amend the order pursuant to Fed. R. Civ. P. 60(b).

The parties are now arguing whether the motions filed in the district court are of the type enumerated in Fed. R. App. P. 4(a) (4) that would require that the appeal to be deactivated until the motions are decided. The motions clearly are the type contemplated by the rule. Fed. R. Civ. P. 52(b) provides for motions to amend the findings and the judgment. Fed. R. Civ. P. 59(e) provides for motions to alter or amend the judgment. Fed. R. Civ. P. 60(b) provides for motions for relief from judgment. All of these motions, if timely, render a notice of appeal "ineffective" until the motions are decided. Fed. R. App. P. 4(a) (4). In accordance with the court's Practice Note to Rule 4, the court deactivates any such appeal until the district court proceedings are over. Because the motions are R. 4(a) (4) motions, we grant Flowdata's motion to deactivate the appeal.

Flowdata also moves to dismiss Adcon's appeal on the ground that Adcon is not adversely affected by the order and lacks standing to appeal, and because no party adversely affected by the order has appealed. This issue is inextricably intertwined with the merits of the appeal. Thus, the parties may address this issue in their briefs.



(1) Flowdata's motion to deactivate is granted.

(2) Flowdata's motion to dismiss is denied.