F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
DEC 10 2003
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
MEDICAL SUPPLY CHAIN, INC.,
Plaintiff-Appellant,
v. No. 02-3443
(D.C. No. 02-CV-2539-CM)
US BANCORP, NA.; US BANK (D. Kan.)
PRIVATE CLIENT GROUP;
CORPORATE TRUST;
INSTITUTIONAL TRUST AND
CUSTODY; MUTUAL FUND
SERVICES, LLC.; PIPER JAFFRAY;
ANDREW CESERE; SUSAN PAINE;
LARS ANDERSON; BRIAN
KABBES; UNKNOWN
HEALTHCARE SUPPLIER,
Defendants-Appellees.
ORDER AND JUDGMENT *
Before EBEL , PORFILIO , and McCONNELL , Circuit Judges.
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument.
This appeal is taken from an order of the district court denying plaintiff’s
two motions for a preliminary injunction. Our jurisdiction was invoked under
28 U.S.C. § 1292(a)(1), which provides for interlocutory appeals from district
court orders granting or denying injunctions.
Following the district court’s denial of the injunction, and while this case
was pending on appeal, the district court entered a final judgment dismissing
plaintiff’s action. Plaintiff then filed a combined motion for new trial/amendment
of judgment and for retrial on the denial of the preliminary injunction. This
timely filed motion effectively suspended the finality of the district court’s
judgment. The district court has recently denied plaintiff’s motion, and plaintiff
has filed a new notice of appeal, our No. 03-3342, seeking review of the district
court’s dismissal of its action.
“[M]ootness is a matter of jurisdiction, [and] a court may raise the issue
sua sponte.” McClendon v. City of Albuquerque , 100 F.3d 863, 867 (10th Cir.
1996). Because the district court has now dismissed the action, this interlocutory
appeal is moot. See Sac & Fox Nation v. Cuomo , 193 F.3d 1162, 1168 (10th Cir.
-2-
1999) (dismissing interlocutory appeal from denial of preliminary injunction
where district court subsequently dismissed complaint); see also Atomic Oil Co.
of Okla. v. Bardahl Oil Co. , 419 F.2d 1097, 1102 n.9 (10th Cir. 1969) (noting
order granting or denying preliminary injunction merges into decree granting
or denying permanent injunction, and where both orders are appealed, former
will be dismissed).
Accordingly, we DISMISS the appeal as moot.
Entered for the Court
Michael W. McConnell
Circuit Judge
-3-