FILED
United States Court of Appeals
Tenth Circuit
June 5, 2018
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court
DERMA PEN, LLC,
Plaintiff Counterclaim
Defendant,
v. No. 15-4040
(D.C. No. 2:13-CV-00729-DN-EJF)
4EVERYOUNG LIMITED, doing (D. Utah)
business as DermapenWorld;
BIOSOFT (AUST) PTY LTD, doing
business as DermapenWorld;
EQUIPMED INTERNATIONAL PTY
LTD, doing business as
DermapenWorld; STENE MARSHAL,
doing business as DermapenWorld,
Defendants Counterclaim
Plaintiffs-Appellees,
v.
MICHAEL E. ANDERER,
Counterclaim Defendant
Appellant,
and
JEREMY JONES; MICHAEL J.
MORGAN; CHAD MILTON;
MEDMETICS, LLC, a Delaware
limited liability company; JOHN
DOES 1-25,
Counterclaim Defendants.
ORDER AND JUDGMENT *
Before TYMKOVICH, Chief Judge, BRISCOE, and HARTZ, Circuit Judges. **
The parties are familiar with the complex procedural history of this case
involving trademark infringement and counterclaims for breach of contract. 1 This
is an interlocutory appeal in which Michael Anderer sought review over several
injunctive orders as well as orders holding him in civil contempt. Anderer
asserted we had jurisdiction to review the injunctive orders under 28 U.S.C.
§ 1292(a)(1). As for the civil contempt orders, Anderer argued we should
exercise pendent appellate jurisdiction to review them along with the injunctive
orders. See Cox v. Glanz, 800 F.3d 1231, 1255 (10th Cir. 2015). 2 We noted
jurisdictional issues and abated the appeal while the case proceeded below.
*
This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
**
In accordance with our order of March 21, 2018, this matter was
submitted on the briefs.
1
See generally Derma Pen, LLC v. 4EverYoung Ltd., 2017 WL 2258362
(D. Utah May 22, 2017); Derma Pen, LLC v. 4EverYoung Ltd., 2015 WL 803148
(D. Utah Feb. 26, 2015), vacated, 2016 WL 4532106 (D. Utah Aug. 29, 2016).
2
Anderer made other jurisdictional arguments, but we find them
unpersuasive.
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We now dismiss for lack of jurisdiction. During the time this appeal was
abated, the district court vacated all of the various injunctions. Anderer’s
challenges to those injunctions are therefore moot. See Fleming v. Gutierrez, 785
F.3d 442, 445 (10th Cir. 2015). Since we do not have jurisdiction to review the
now-vacated injunctions, we cannot have pendent appellate jurisdiction to review
the contempt orders in this appeal (which have now merged with the final
judgment). In any event, we have dealt with many of the same issues in
Anderer’s appeal after final judgment in case 17-4105.
We therefore DISMISS this appeal. We also GRANT Anderer’s
unopposed motion to seal various parts of the record.
ENTERED FOR THE COURT
Timothy M. Tymkovich
Chief Judge
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