10-361
Houbigant v. IMG Fragrance
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
____________________
August Term, 2010
(Submitted: December 9, 2010 Decided: December 20, 2010)
Docket No. 10-361-cv
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HOUBIGANT, INCORPORATED, ETABLISSEMENT HOUBIGANT,
Plaintiff-Appellants,
-v-
IMG FRAGRANCE BRANDS, LLC, PATRIARCH PARTNERS, LLC,
Defendant-Appellees.
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Before: POOLER, B.D. PARKER, and WESLEY, Circuit Judges.
Appeal from an order of the United States District Court for the Southern District of New
York (Preska, Ch. J.) dismissing one of two consolidated cases, the other of which is still
pending before the district court. We hold that the district court’s order is a nonfinal judgment
that is not independently appealable. Although the district court directed the Clerk of the Court
to “close” the dismissed case, the district court also instructed that the dismissal was not to
affect, inter alia, pending motions in the case with which the dismissed action was consolidated.
Further, the district court did not direct entry of final judgment under Federal Rule of Civil
Procedure 54(b), which would have vested appellate jurisdiction in this Court, nor did the district
court even reference Rule 54(b) in its Order. Accordingly, we dismiss the appeal for lack of
jurisdiction.
DISMISSED.
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JOHN WILLIAM SCHRYBER, Dickstein Shapiro LLP,
Washington, DC, for Plaintiff-Appellants.
GEORGE M. MAHFOOD, Broad and Cassel, Miami, FL,
CHARLES A. MICHAEL, Brune & Richard LLP, New York, NY,
for Defendant-Appellees.
PER CURIAM:
Appellants appeal from a judgment of the district court (Preska, Ch. J.) dismissing one of
two cases that were consolidated for all purposes. See Houbigant, Inc. v. IMG Fragrance
Brands, LLC, No. 09 Civ. 839, 2009 WL 5102791 (S.D.N.Y. Dec. 18, 2009) (dismissing Case
No. 09 Civ. 839). As we explained in Hageman v. City Investing Co., 851 F.2d 69, 71 (2d Cir.
1988), “when there is a judgment in a consolidated case that does not dispose of all claims which
have been consolidated, there is a strong presumption that the judgment is not appealable absent
Rule 54(b) certification.” Federal Rule of Civil Procedure 54(b) permits a district court to “direct
entry of a final judgment as to one or more, but fewer than all, claims or parties” upon a finding
that “there is no just reason for delay.” Rule 54(b) certification vests appellate jurisdiction in this
Court even though the judgment entered by the district court otherwise would be nonfinal.
Although one of the two consolidated cases is still pending, Appellants argue that the
order dismissing the complaint in Case No. 09 Civ. 839 should be deemed a final order subject to
our appellate jurisdiction under 28 U.S.C. § 1291, because this case falls under one of the
exceptions articulated in Vona v. Cnty. of Niagara, 119 F.3d 201 (2d Cir. 1997), or Smith v. Half
Hollow Hills Cent. Sch. Dist., 298 F.3d 168 (2d Cir. 2002). We disagree.
In Smith, we explained that “a premature notice of appeal from a nonfinal order may ripen
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into a valid notice of appeal if a final judgment has been entered by the time the appeal is heard
and the appellee suffers no prejudice.” 298 F.3d at 172 (internal quotation marks and citation
omitted). On the facts of that case, we held that “[w]e need not determine whether the district
court’s reasons for granting partial judgment . . . were sufficiently obvious to avoid Rule 54(b)’s
requirement of a reasoned explanation because . . . the dismissal of [Appellant]’s remaining
claim after the partial judgment was filed cured any jurisdictional infirmity.” Id. at 171. Here,
one of the two consolidated cases is still pending before the district court, and therefore, the
principle announced in Smith is inapplicable.
Vona is similarly distinguishable. In that case, the parties appealed from a judgment of
the district court granting a motion to dismiss fewer than all of the claims at issue in that case.
119 F.3d at 205. At the end of the decretal portion of the district court’s opinion in Smith, the
court directed that final judgment be entered in favor of all defendants, expressly referencing
Rule 54(b). Id. Although the district court did not enter a finding that there was “no just reason
for delay,” as required by Rule 54(b), we concluded that there was a final appealable judgment
based upon the totality of circumstances: the court’s entry of judgment, reference to Rule 54(b),
and the fact that the case was marked “closed,” which we presumed to be at the behest of the
district court. See id. at 205-06. Thus, it was clear to us in Vona that the district court intended
to take no further action in adjudicating the case.
By contrast, the district court here is still actively engaged in resolving the remainder of
the consolidated action. Although the district court instructed the Clerk of Court to mark the
case “closed,” the district court also made clear that the dismissal of Case No. 09 Civ. 839 was to
have no effect on either of the pending related actions, one of which has been consolidated with
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the case sub judice. Moreover, the district court’s Order makes no reference to Rule 54(b).
Coupled with the fact that the pending and dismissed actions overlap in potentially significant
ways, and that resolution of the pending action could moot the central issue in this appeal, we are
unable to conclude that the district court’s decision is a final judgment subject to the appellate
jurisdiction of this Court. It would be improvident to interject appellate review into a case where
the district court is still actively engaged in decisionmaking.
We have considered Appellants’ remaining arguments, including their argument that this
case presents “highly unusual circumstances” under Hageman, 851 F.2d at 71, and find them to
be without merit.
CONCLUSION
For the foregoing reasons, we DISMISS the appeal.
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