United States Court of Appeals
for the Federal Circuit
__________________________
TAYLOR BRANDS, LLC,
Plaintiff-Appellant,
v.
GB II CORPORATION
(DOING BUSINESS AS COLUMBIA RIVER KNIFE
AND TOOL COMPANY),
Defendant-Appellee.
__________________________
2010-1151, -1294
__________________________
Appeal from the United States District Court for the
Eastern District of Tennessee in case no. 08-CV-0325,
Magistrate Judge Dennis H. Inman.
__________________________
ON MOTION
__________________________
Before LINN, DYK, and PROST, Circuit Judges.
DYK, Circuit Judge.
__________________________
SCOTT E. DAVIS, Klarquist Sparkman, LLP, of Port-
land, Oregon, filed a motion to dismiss for defendant-
appellee. With him on the motion was JOHN D.
VANDENBERG.
TAYLOR BRANDS v. GB II CORP 2
PETER N. LALOS, Novak Druce & Quigg LLP, of Wash-
ington, DC, filed a response to the motion to dismiss for
plaintiff-appellant. With him on the response was
THOMAS P. PAVELKO.
__________________________
ORDER
Appellee GB II Corporation d/b/a Columbia River
Knife and Tool Company (“CRKT”) moves to dismiss these
appeals and for sanctions and costs. Appellant Taylor
Brands, LLC (“Taylor”) opposes, and CRKT replies. We
deny the motion to dismiss the first appeal, but grant the
motion to dismiss the second.
BACKGROUND
Taylor sued CRKT in the United States District Court
for the Eastern District of Tennessee alleging infringe-
ment of U.S. Patent No. 6,651,344 (“’344 patent”) relating
to assisted opening knives. CRKT counterclaimed seek-
ing declaratory judgments of non-infringement and inva-
lidity. The parties consented to having a United States
Magistrate Judge conduct all proceedings in the case.
Prior to discovery, CRKT moved for partial summary
judgment of non-infringement as to twenty-two of its
accused products. CRKT characterized its motion as
being, “as a practical matter . . . case dispositive.” 1 CRKT
1 Reply in Supp. of Def.’s Mot. for Summ. J. of Non-
Infringement and Partial Construction of Some Claim
Terms 25, Taylor Brands, LLC v. GB II Corp., No. 08-CV-
0325 (E.D. Tenn. Dec. 9, 2009), Ex. G; see also Mem. in
Supp. of Mot. to Stay Disc. Pending Resolution of Def.’s
Mot. for Summ. J. and Resp. to Pl.’s Proposal for Disc.
Plan 2, Taylor Brands, No. 08-CV-325, Ex. E (“Though
directed to specific CRKT products, CRKT’s motion for
3 TAYLOR BRANDS v. GB II CORP
further informed the court that it was seeking an “effi-
cient way to resolve [the] case,” and that “[i]f there’s no
infringement then the Defendant should be free to go
home . . . and can dismiss its counterclaims of invalidity
without prejudice allowing judgment to be entered and
the case to be appealed at that point on just the infringe-
ment question.” Summ. J. Hr’g Tr. 53, 55–56, Ex. B.
Both parties thereafter moved for leave to amend their
pleadings to add additional claims for false marking and
false advertising. On November 19, 2009, in light of its
construction of certain claim terms, the district court
granted CRKT’s motion for partial summary judgment,
holding that “there is no infringement of the ’344 Patent
by those knives sold by CRKT bearing the following model
numbers: [listing twenty-two knife models].” Ex. 9, at 10–
11.
On December 2, 2009, both parties agreed to with-
draw their motions to amend their pleadings to add false
marking and false advertising claims, and CRKT agreed
to dismiss without prejudice its counterclaim for a de-
claratory judgment of invalidity. These steps made it
possible for the court to enter a final judgment. Taylor
requested that the court enter a final judgment, and both
parties signed a proposed Stipulated Final Judgment
which was submitted to the court on December 9, 2009.
summary judgment is as a practical matter dispositive of
Plaintiff’s single cause of action.”); Def.’s Resp. to Pl.’s
Proposal for Disc. Plan [Doc. 36] and Reply in Supp. of
Mot. to Stay Disc. [Doc. 37] 2, Taylor Brands, No. 08-CV-
325, Ex. F (“Plaintiff’s proposal to proceed with discovery
on issues other than those addressed in CRKT’s case
dispositive summary judgment motion will only multiply
costs for the Parties and consume resources on issues that
need never be reached should the court rule in CRKT’s
favor on the summary judgment issues.”).
TAYLOR BRANDS v. GB II CORP 4
The district court signed the proposed order the same day,
which provides as follows:
The Court having granted Defendant’s Motion for
Partial Summary Judgment, with the parties’ con-
sent, it is hereby ordered and adjudged that:
a) Defendant [CRKT] has not infringed
U.S. Patent No. 6,651,344;
b) Plaintiff [Taylor’s] First Amended
Complaint for infringement of U.S. Patent
No. 6,651,344 is dismissed with prejudice;
c) Plaintiff [Taylor’s] motion for leave to
amend its complaint to add certain addi-
tional counts is withdrawn;
d) Defendant CRKT’s counterclaim seek-
ing a declaratory judgment of invalidity is
dismissed without prejudice; and
e) Defendant CRKT’s motion for leave to
amend its counterclaims to add certain
additional counts is withdrawn.
Stipulated Final J., Taylor Brands, LLC v. GB II Corp.,
No. 08-CV-325 (E.D. Tenn. Dec. 9, 2009) (emphasis
added).
On December 29, 2009, Taylor filed a notice of appeal
from the Stipulated Final Judgment (“first notice of
appeal”) seeking to challenge the court’s grant of sum-
mary judgment of non-infringement. CRKT now moves to
dismiss Taylor’s first notice of appeal on grounds that
Taylor has waived any right to appeal by consenting to
the entry of a judgment against it without expressly
reserving the right to appeal.
Taylor subsequently filed a second notice of appeal on
March 26, 2010 (“second notice of appeal”), apparently
5 TAYLOR BRANDS v. GB II CORP
seeking to challenge the district court’s order denying
CRKT’s motion for attorney fees. CRKT moves to dismiss
Taylor’s second notice of appeal for lack of standing.
DISCUSSION
I
With respect to the first notice of appeal from the De-
cember 9, 2009, judgment, CRKT contends that Taylor
waived its right to appeal by consenting to the entry of a
final judgment without expressly reserving its right to
appeal. 2 We disagree.
Under the Federal Rules of Civil Procedure, most
judgments, including Rule 56 summary judgment orders,
are not effective until “set out in a separate document”—
e.g., an official “judgment”—and entered by the clerk of
the court. Fed. R. Civ. P. 58. When this procedure is
required, it is common for courts to ask the parties to
stipulate to the form of the final judgment. This practice
was indeed common even before the Federal Rules of Civil
Procedure. For example, in 1917 the Supreme Court
recognized that such stipulated judgments do not bar an
appeal of the underlying judgment. Thomsen v. Cayser,
243 U.S. 66, 83 (1917). In Thomsen, the defendant-
appellee had moved to dismiss the appeal on grounds that
“the judgment of the circuit court was entered in the form
2 While most courts have considered this issue to be
one of waiver, some courts have viewed the issue as being
jurisdictional in nature. We agree with the majority of
courts that waiver principles offer the more appropriate
framework. See 15A Charles Alan Wright & Arthur R.
Miller, Federal Practice and Procedure § 3902 (2d ed.
2010) (citing Pac. Ry. v. Ketchum, 101 U.S. 289, 295
(1879) (holding that appellate courts do have jurisdiction
over appeals from consent judgments, but should affirm
such judgments as to any issues that were waived by the
parties’ consent)).
TAYLOR BRANDS v. GB II CORP 6
finally adopted at the request of the plaintiffs and by their
consent, and the errors assigned by plaintiffs were waived
by such request and consent.” Id. at 82. The Court
denied the motion, holding that “[t]he plaintiffs did not
consent to a judgment against them, but only that, if
there was to be such a judgment, it should be final in form
instead of interlocutory, so that they may come to this
court without further delay.” Id. at 83.
Subsequent to Thomsen v. Cayser, both the Supreme
Court and the courts of appeals have repeatedly held that
the entry of a stipulated final judgment after a dispositive
ruling does not bar an appeal. See United States v. Proc-
ter & Gamble, 356 U.S. 677, 680–81 (1958) (finding appeal
was proper because “[t]he Government at all times op-
posed the production orders,” and “[w]hen the Govern-
ment proposed dismissal for failure to obey, it had lost on
the merits and was only seeking an expeditious review”);
OFS Fitel, LLC v. Epstein, Becker & Green, P.C., 549 F.3d
1344, 1358 (11th Cir. 2008) (finding plaintiff could appeal
where, “[b]ecause the interlocutory sanctions order was
case-dispositive and [plaintiff] opposed that interlocutory
order on the merits, [plaintiff stood] adverse to the result-
ing final judgment that was expressly based on the undis-
puted case-dispositive nature of the contested
interlocutory ruling”); The Asaldo San Giorgio I, 73 F.2d
40, 41 (2d Cir. 1934) (“[I]t is clear from the record that
this was not a decree to which the libelant consented in
any such sense as to bar an appeal. . . . [T]he entry of the
final decree merely carried into effect the court’s previous
decision on a litigated issue. The appeal is properly
here.”). Similarly, in United States v. Safeco Insurance
Co., 65 Fed. Appx. 637, 638–39 (9th Cir. 2003) (unpub-
lished), the court found that the defendant “consent[ed]
merely to the form of judgment,” because the “evidence,
including the lack of a rational reason for abandoning its
7 TAYLOR BRANDS v. GB II CORP
right to appeal, indicate[d] that [the defendant’s] signa-
ture was not intended to represent [its] consent to the
court’s summary judgment rulings.” We are aware of no
case in which a party was found to have waived its right
to appeal due to the mere ministerial act of stipulating to
the form of a final judgment.
The distinction between consenting to the substance
of a judgment (i.e., agreeing as to what the substantive
outcome of the judgment will be) and merely consenting to
the judgment’s form (including agreeing that the judg-
ment will be final instead of interlocutory) is crucial to the
issue of whether waiver of a party’s right to appeal should
be presumed. A party who consents to the substance of a
judgment should indeed be presumed to have waived its
right to appeal—absent an express reservation of that
right on the record—because voluntarily agreeing to an
adverse substantive outcome is an indication that the
party has abandoned its underlying claims or defenses.
In contrast, no waiver exists—even without a reservation
of appellate rights—when a party consents solely to the
form of a judgment, because merely agreeing to the form
of a judgment does not in itself imply that the party
agrees with the judgment’s substantive outcome or in-
tends to abandon its position on the issues.
CRKT cites a litany of cases in which parties who con-
sented to adverse judgments were held to have waived
their rights to appeal by failing to expressly reserve that
right on the record. However, these and similar cases are
distinguishable because they involved situations in which
a party consented to the substance of an adverse judg-
ment as opposed to merely its form. Unlike the present
case, these cases all involved either settlement agree-
TAYLOR BRANDS v. GB II CORP 8
ments 3 or voluntary dismissals 4 —both of which necessar-
ily imply a party’s consent to the substantive outcome.
3 See, e.g., Nashville, C. & St. L. Ry. Co. v. United
States, 113 U.S. 261, 263, 266–67 (1885) (consent decree
was entered pursuant to “a compromise of all the matters
in litigation between the parties”); LaForest v. Honeywell
Int’l Inc., 569 F.3d 69, 72–74 (2d Cir. 2009) (parties stipu-
lated to a final judgment in consideration of a court-
approved class action settlement agreement without
expressly reserving a right to appeal the underlying
claims); Slaven v. Am. Trading Transp. Co., Inc., 146 F.3d
1066, 1069–70 (9th Cir. 1998) (court-approved class action
settlement agreement); Ass’n of Cmty. Orgs. for Reform
Now (ACORN) v. Edgar, 99 F.3d 261 (7th Cir. 1996), on
appeal from No. 95-C-174, 1996 WL 447256, at *1 (N.D.
Ill. Aug. 5, 1996) (consent decree entered pursuant to a
detailed “compliance plan” agreed to between the parties);
Mock v. T.G. & Y. Stores Co., 971 F.2d 522, 525–27 (10th
Cir. 1992) (plaintiffs accepted, without reservation, de-
fendant’s offer of judgment pursuant to Fed. R. Civ. P. 68
whereby defendant agreed to pay a specific damages
amount); Shores v. Sklar, 885 F.2d 760, 762 (11th Cir.
1989) (en banc) (judgment entered pursuant to defen-
dant’s Rule 68 offer to pay a specific damages amount);
Cohen v. Va. Elec. & Power Co., 788 F.2d 247, 248–49 (4th
Cir. 1986) (consent decree entered pursuant to agreement
between parties which defined the amount plaintiff would
pay in attorney’s fees and provided that defendant would
not enforce the judgment until plaintiff’s claims pending
in state court were resolved); Couglin v. Regan, 768 F.2d
468, 469–70 (1st Cir. 1985) (consent decree entered on
agreement between the parties).
4 See, e.g., Scanlon v. M.V. Super Servant 3, 429
F.3d 6, 9–10 (1st Cir. 2005) (plaintiffs moved to voluntar-
ily dismiss their claim with prejudice and failed to ex-
pressly reserve their right to appeal); Laczay v. Ross
Adhesives, a Div. of Conros Corp., 855 F.2d 351, 355 (6th
Cir. 1988) (plaintiff’s stipulation to the dismissal of his
claim with prejudice waived his right to appeal); Marks v.
Leo Feist, Inc., 8 F.2d 460, 462 (2d Cir. 1925) (before there
had been any case-dispositive interlocutory order regard-
9 TAYLOR BRANDS v. GB II CORP
In this case, there has been no showing that the par-
ties entered into any settlement agreement. In particu-
lar, there has been no showing that Taylor agreed to
surrender its infringement claim as to the twenty-two
knives in consideration of CRKT’s agreement to withdraw
its motion to amend and to dismiss its invalidity chal-
lenges to the patent. CRKT itself had earlier suggested
that those actions be taken to enable a final judgment to
be entered. Moreover, there has been no showing that
Taylor voluntarily dismissed its claim. To the contrary,
Taylor consented to the entry of a final judgment only
after the district court had granted summary judgment of
non-infringement. Taylor had opposed CRKT’s summary
judgment motion on the merits, and the resulting order
was clearly dispositive of the vast majority of Taylor’s
infringement claims. Taylor’s consent at that point to the
purely ministerial act of entering a judgment pursuant to
Rule 58 implementing the summary judgment decision
cannot be construed as consent to the substance of the
summary judgment order. Even the case upon which
CRKT heavily relies recognizes “that sometimes in a
contested case the judge will render decision and tell the
parties to agree on the wording of the judgment order or
on other details left open by the decision,” and that
ing the merits of plaintiff’s underlying claim, the plaintiff
moved to voluntarily dismiss his complaint with preju-
dice); see also Gatto v. Comm’r of Internal Revenue, 1 F.3d
826, 827–28 (9th Cir. 1993) (petitioners stipulated to
binding the result in their case to the result in a related
case before the Tax Court, even though there had been no
case-dispositive interlocutory order in the petitioners’
case); Tapper v. Comm’r of Internal Revenue, 766 F.2d
401, 403–04 (9th Cir. 1985) (petitioners consented to the
entry of judgment against them after Tax Court denied
petitioners’ motion for summary judgment regarding their
statute of limitations defense; order denying summary
judgment was not dispositive of any claim).
TAYLOR BRANDS v. GB II CORP 10
“[s]uch a ‘consent judgment’ would carry no implication of
any waiver of the right to appeal.” ACORN v. Edgar, 99
F.3d at 262.
CRKT contends that the order granting partial sum-
mary judgment of non-infringement in fact was “not
dispositive of the entire case as it then existed” because
the summary judgment order (1) only applied to the
twenty-two accused products specifically named in the
order; (2) did not address induced or contributory in-
fringement; and (3) did not decide the parties’ motions to
amend to add new claims for false marking and false
advertising. CRKT Reply Br. 8–9. However, CRKT
ignores the fact that the summary judgment order was
indeed dispositive of Taylor’s infringement claims against
the twenty-two identified products. Of course, the fact
that some collateral issues were not resolved by a disposi-
tive interlocutory order indicates that Taylor consented to
the substance of the judgment to the extent that it ex-
tended beyond carrying the summary judgment order into
effect. Taylor has thus waived its right to contest any
such collateral issues on appeal by failing to expressly
reserve that right. However, because Taylor clearly
consented to only the form of the judgment insofar as it
effectuates the summary judgment order, Taylor has not
waived its right to appeal the summary judgment order
itself and any issues addressed therein (e.g., certain claim
construction rulings).
Consequently, we deny CRKT’s motion to dismiss
Taylor’s first notice of appeal.
II
Taylor’s second notice of appeal purports in part to be
from the order of March 1, 2010, which denied CRKT’s
motion for an award of attorney fees. As Taylor was not
11 TAYLOR BRANDS v. GB II CORP
aggrieved by that decision, Taylor lacks standing to
challenge it on appeal.
To the extent that Taylor’s second notice of appeal
also purports to be from the Stipulated Final Judgment, it
is duplicative.
We therefore grant CRKT’s motion to dismiss Taylor’s
second notice of appeal.
III
ACCORDINGLY, IT IS ORDERED THAT:
(1) The motion to dismiss Taylor’s first
notice of appeal (Case No. 2010-1151) is
DENIED.
(2) The motion to dismiss Taylor’s second
notice of appeal (Case No. 2010-1294) is
GRANTED.
(3) The motion for oral argument regard-
ing these motions is DENIED.
(4) The motion for sanctions and costs is
DENIED.
FOR THE COURT
December 9, 2010 /s/ Jan Horbaly
Date Jan Horbaly
Clerk
cc: Peter N. Lalos, Esq.
Scott E. Davis, Esq.