United States Court of Appeals
for the Federal Circuit
______________________
PRINCETON DIGITAL IMAGE CORPORATION,
Plaintiff-Cross-Appellant
v.
OFFICE DEPOT INC., J.C. PENNEY COMPANY,
INC., QVC INC., SEARS HOLDINGS
CORPORATION, LIMITED BRANDS INC., GAP,
INC., WILLIAMS-SONOMA, INC., COSTCO
WHOLESALE CORPORATION, NORDSTROM.COM
LLC, NORDSTROM.COM INC., NORDSTROM INC.,
Defendants
ADOBE INC.,
Defendant-Appellant
______________________
2017-2597, 2017-2598, 2017-2600, 2017-2602, 2017-2605,
2017-2606, 2017-2609, 2017-2611, 2017-2612, 2017-2627,
2017-2628, 2017-2629, 2017-2630, 2017-2631, 2017-2632,
2017-2633, 2017-2634, 2018-1006
______________________
Appeals from the United States District Court for the
District of Delaware in Nos. 1:13-cv-00239-LPS, 1:13-cv-
00287-LPS, 1:13-cv-00288-LPS, 1:13-cv-00289-LPS, 1:13-
cv-00326-LPS, 1:13-cv-00330-LPS, 1:13-cv-00331-LPS,
1:13-cv-00404-LPS, 1:13-cv-00408-LPS, Chief Judge
Leonard P. Stark.
2 PRINCETON DIGITAL IMAGE CORP. v. OFFICE DEPOT INC.
______________________
Decided: January 22, 2019
______________________
GEORGE PAZUNIAK, O'Kelly, Ernst, & Bielli, LLC,
Wilmington, DE, argued for plaintiff-cross-appellant.
TARA ELLIOTT, Latham & Watkins LLP, Washington,
DC, argued for defendant-appellant. Also represented by
RACHEL WEINER COHEN.
______________________
Before DYK, TARANTO, and STOLL, Circuit Judges.
DYK, Circuit Judge.
The parties appeal and cross appeal from various rul-
ings by the U.S. District Court for the District of Dela-
ware in a patent and breach of contract dispute. Because
there was no final decision on the merits, we dismiss the
appeal for lack of jurisdiction.
BACKGROUND
Princeton Digital Image Corporation (“PDIC”) owns
U.S. Patent No. 4,813,056 (“the ’056 patent”), which
relates to methods for encoding image data and allegedly
covers the encoding of digital images in the JPEG file
format. In June 2011, PDIC licensed the ’056 patent to
Adobe, Inc. In the license agreement, PDIC promised not
to sue Adobe or Adobe’s customers for claims arising “in
whole or part owing to an Adobe Licensed Product.” J.A.
1538–39.
Beginning in December 2012, PDIC sued numerous
customers of Adobe, alleging that the encoding of JPEG
images on the customers’ websites infringed claims of the
’056 patent. In November 2014, Adobe moved to inter-
vene to defend nine of its customers, contending that its
PRINCETON DIGITAL IMAGE CORP. v. OFFICE DEPOT INC. 3
customers were using Adobe products to display images
on their websites, which was covered by PDIC’s license to
Adobe. The district court granted Adobe’s motion to
intervene on May 5, 2015.
On May 8, 2015, Adobe filed a complaint in interven-
tion, asserting that PDIC breached its license agreement
with Adobe by suing Adobe’s customers. For this breach
of contract claim, Adobe sought damages consisting of (1)
its attorneys’ fees expended in connection with defending
its customers and responding to customers’ indemnity
requests and (2) its fees expended in bringing the breach
of contract claim itself.
By July 31, 2015, PDIC had dismissed each of the in-
fringement actions brought against Adobe’s customers in
which Adobe had intervened. Adobe moved for attorneys’
fees under 35 U.S.C. § 285, which permits an award of
attorneys’ fees to the prevailing party in “exceptional
cases,” and for sanctions under Federal Rule of Civil
Procedure 11. The district court denied both fees and
sanctions. As to § 285 fees, the district court concluded
that it “cannot determine at this time whether PDIC or
Adobe is the prevailing party.” J.A. 26. Assuming that
Adobe was the prevailing party, the court found that the
case was “exceptional” in that it “stand[s] out from the
rest,” J.A. 39–40, but that in its discretion, it would deny
the request for attorneys’ fees because the conduct was
not “so exceptional,” J.A. 41 (emphasis in original) (cita-
tion omitted). As to Rule 11 sanctions, the court conclud-
ed that it “cannot say that PDIC’s pre-suit investigation
was inadequate or that any filing was made for any
improper purpose.” J.A. 42.
Litigation continued on Adobe’s breach of contract
claim. On August 1, 2017, the district court granted in
part and denied in part PDIC’s motion for summary
judgment based on liability and damages. As to liability,
4 PRINCETON DIGITAL IMAGE CORP. v. OFFICE DEPOT INC.
the court held that there were “genuine issues of material
fact precluding summary judgment,” because a “reasona-
ble juror could accept Adobe’s view that PDIC’s infringe-
ment allegations . . . cover the use of Adobe products,”
which would violate the license agreement’s covenant not
to sue. J.A. 60. But as to damages, the court held that
Adobe could only collect “defense” fees—“that is, those
Adobe incurred in defending [its customers] from PDIC’s
infringement suit, suits that were brought in alleged
violation of the covenant not to sue.” J.A. 64. Adobe
could not recover the fees that Adobe incurred “in at-
tempting to vindicate its contract rights,” that is, “any
attorney fees Adobe incurred in the affirmative breach-of-
contract suit.” J.A. 64. The court ordered Adobe to file a
supplemental report disclosing Adobe’s defense fees.
Adobe filed the supplemental report on August 7, 2017.
On August 17, 2017, the court struck Adobe’s supple-
mental report because it did “not separate Adobe’s de-
fense fees from its affirmative fees” but instead “claim[ed]
all fees as defensive so long as they were incurred while at
least one Defendant (who requested indemnification) was
still involved in litigation with PDIC.” J.A. 82. The court
concluded, however, that “there is sufficient evidence in
the record to determine the amount of Adobe’s fees that
are purely defense fees,” and therefore directed Adobe to
file a letter disclosing the total amount of such fees and
the record support for the claimed amount. J.A. 86–87.
When Adobe filed its letter, however, the court struck it
because it too “did not disclose a purely defensive num-
ber.” J.A. 106.
The court nevertheless declined to grant summary
judgment to PDIC on damages, explaining that it was
“undisputed that some amount of Adobe’s legal fees are
purely defensive.” J.A. 106. It ruled that Adobe would be
permitted to present a purely defensive number to the
PRINCETON DIGITAL IMAGE CORP. v. OFFICE DEPOT INC. 5
jury, but Adobe would have to disclose that number to
PDIC before opening statements.
In an effort to secure an appealable decision, Adobe
then requested that the court enter judgment in favor of
PDIC, contending that in light of the court’s rulings,
“Adobe doesn’t have damages to present,” which Adobe
contended was “an element of what is to be tried.” Tr. of
Pre-Trial Conference at 67:23–24, Princeton Digital Image
Corp. v. Office Depot Inc., No. 1:13-cv-00239-LPS (D. Del.
Sept. 1, 2017), ECF No. 281. The court reiterated its
conclusion “that there are purely defensive damages that
can be proven on this record,” but granted Adobe’s request
and entered judgment in favor of PDIC. J.A. 106–08.
Adobe appeals, contending that the district court
erred in (1) not awarding fees under § 285 and sanctions
under Rule 11; (2) limiting the damages for Adobe’s
breach of contract claim; and (3) refusing to compel PDIC
to produce additional documents (regarding PDIC’s pre-
suit investigation and litigation conduct) that Adobe
asserted were encompassed within PDIC’s waiver of
attorney-client privilege.
PDIC cross appeals, contending that the district court
erred in imposing two monetary sanctions on PDIC. The
sanctions required PDIC to pay Adobe’s attorneys’ fees
and costs in connection with (1) PDIC’s failure to timely
answer Adobe’s complaint in intervention in one of PDIC’s
infringement cases against an Adobe customer; and
(2) PDIC’s failure to present a competent Rule 30(b)(6)
witness for deposition.
DISCUSSION
Adobe contends that we have jurisdiction under 28
U.S.C. § 1295 because this is an appeal “from a final
decision of a district court.” Id. § 1295(a)(1). “Section
1295’s final judgment rule mirrors that of its counterpart
6 PRINCETON DIGITAL IMAGE CORP. v. OFFICE DEPOT INC.
found at 28 U.S.C. § 1291.” Pause Tech. LLC v. TiVo Inc.,
401 F.3d 1290, 1292 (Fed. Cir. 2005) (quoting Nystrom v.
TREX Co., 339 F.3d 1347, 1350 (Fed. Cir. 2003)). The
central question is whether the judgment entered by the
district court at Adobe’s request constitutes a final deci-
sion. We hold that it does not.
I
A
Generally, a final decision is a decision by the district
court that “ends the litigation on the merits and leaves
nothing for the court to do but execute the judgment.”
Catlin v. United States, 324 U.S. 229, 233 (1945). “If a
‘case is not fully adjudicated as to all claims for all par-
ties,’ there is no ‘final decision’ and therefore no jurisdic-
tion.” Pandrol USA, LP v. Airboss Ry. Prods., Inc., 320
F.3d 1354, 1362 (Fed. Cir. 2003) (quoting Syntex Pharm.
Int’l, Ltd. v. K-Line Pharm., Ltd., 905 F.2d 1525, 1526
(Fed. Cir. 1990)).
At one time, several circuit courts recognized an ex-
ception to this rule, permitting an appeal from a denial of
class certification if that denial sounded the “death knell”
of the litigation. See Coopers & Lybrand v. Livesay, 437
U.S. 463, 469–70 (1978), superseded on other grounds by
rule as stated in Microsoft v. Baker, 137 S. Ct. 1702, 1708–
09 (2017). The rationale for this exception was that
“without the incentive of a possible group recovery the
individual plaintiff may find it economically imprudent to
pursue his lawsuit to a final judgment and then seek
appellate review of an adverse class determination.” Id.
Thus, under this doctrine, appealability turned on wheth-
er the plaintiff had an “adequate incentive to continue”
litigating. Id. at 471.
The Supreme Court in Coopers & Lybrand rejected
the death knell doctrine. Id. at 476. “[T]he fact that an
PRINCETON DIGITAL IMAGE CORP. v. OFFICE DEPOT INC. 7
interlocutory order may induce a party to abandon his
claim before final judgment is not a sufficient reason for
considering it a ‘final decision’ within the meaning of
§ 1291.” Id. at 477. Otherwise, many “other kinds of
interlocutory orders” that “create the risk of a premature
demise” of a plaintiff’s economic incentive to continue
litigating would become appealable as a matter of right.
Id. at 474. The Court held that the order decertifying the
plaintiffs’ class was not a final decision and therefore not
appealable. Id. at 464–65.
More recently, in Microsoft v. Baker, the Supreme
Court again addressed appellate jurisdiction in the con-
text of an adverse class determination. There, following
the denial of class certification, plaintiffs took an addi-
tional step that the Coopers & Lybrand plaintiffs did not:
they dismissed with prejudice their individual claims
while reserving the right to revive their claims if the
certification decision were reversed, and then sought to
appeal the denial of class certification. 137 S. Ct. at
1706–07. The Court held that this “voluntary-dismissal
tactic” “subverts the final-judgment rule” and “does not
give rise to a ‘final decision’ under § 1291.” Id. at 1712–13
(brackets omitted). The Court reasoned that treating
every voluntary dismissal as a final decision would im-
permissibly “allow indiscriminate appellate review of
interlocutory orders.” Id. at 1714. 1
1 The Court distinguished its earlier decision in
United States v. Procter & Gamble Co., 356 U.S. 677, 680–
81 (1958), where the district court ordered the govern-
ment, as plaintiff in a civil antitrust action, to produce a
grand jury transcript to the defendants. At the govern-
ment’s request, the district court amended the order to
provide that if the government did not produce the tran-
script, the complaint would be dismissed. Id. at 679. The
8 PRINCETON DIGITAL IMAGE CORP. v. OFFICE DEPOT INC.
Contrary to Adobe’s argument, although the Supreme
Court in Microsoft relied in part on the conflict between
allowing the appeal and the limited appeal right in the
class action context, id. at 1714–15, we think that Mi-
crosoft’s reasoning extends beyond that context. Follow-
ing Microsoft, other courts of appeals have applied its
holding in cases not involving a denial of class certifica-
tion. In Keena v. Groupon, Inc., 886 F.3d 360 (4th Cir.
2018), the plaintiff voluntarily dismissed her claims after
the district court ordered her to arbitrate, because in her
view “the costs of that process outweighed the potential
recovery.” Id. at 362. The Fourth Circuit held that the
order to arbitrate was not a final decision under Microsoft
and thus not appealable. Id. at 364.
In Board of Trustees of the Plumbers, Pipe Fitters &
Mechanical Equipment Service, Local Union No. 392 v.
Humbert, 884 F.3d 624, 625 (6th Cir. 2018), the district
court held that certain defendants were liable to a union
under a collective bargaining agreement. The defendants
attempted to facilitate an immediate appeal as to liability
by stipulating to damages. Id. However, the stipulated
judgment order also provided that “none of the parties are
waiving any rights or arguments in any subsequent
government refused to produce the transcript and the
court dismissed the complaint. Id. at 679–80. Although
the government could have obtained an appeal of the
production order “by the route of civil contempt,” the
Court treated the voluntary dismissal as final under the
circumstances, noting that this avoided “any unseemly
conflict with the District Court.” Id. at 680. The Court in
Microsoft distinguished Procter & Gamble because “that
case—a civil antitrust enforcement action—involved
neither class-action certification nor the sort of dismissal
tactic at issue here.” 137 S. Ct. at 1715 n.11. Adobe does
not contend that this case is similar to Procter & Gamble.
PRINCETON DIGITAL IMAGE CORP. v. OFFICE DEPOT INC. 9
proceedings . . . including but not limited to the amount of
the damages.” Id. The Sixth Circuit held that because
this order “specifically reserve[d] the parties’ right to
litigate ‘the amount of the damages’” in future proceed-
ings, it did not “conclusively resolve” even the issue of
damages and hence was not a final judgment for the
plaintiff under Microsoft. Id. at 626. 2
B
In an attempt to distinguish Microsoft and the cases
following it, Adobe argues that the district court’s damag-
es rulings here are unlike the denial of class certification
in Microsoft, and instead are “akin to an unfavorable
claim construction ruling, after which a party may stipu-
late to judgment of non-infringement to facilitate an
immediate appeal.” Appellant’s Reply Br. at 3. As in the
claim construction context, Adobe maintains, the district
court’s order here “meant that Adobe’s claim was effec-
tively dismissed.” Id. at 4.
We disagree. Under our precedent, to be appealable a
claim construction order must preclude a finding of in-
fringement—a required element of the plaintiff’s cause of
action. Such preclusion of infringement may be estab-
lished by the patent owner’s binding admission that the
accused activities are not infringing under the adopted
claim construction. But where a claim construction order
does not resolve the issue of infringement, it is not a final
decision, and, accordingly, is not appealable. See Taylor
Brands, LLC v. GB II Corp., 627 F.3d 874, 877 (Fed. Cir.
2 But see Xlear, Inc. v. Focus Nutrition, LLC, 893
F.3d 1227, 1236 (10th Cir. 2018) (“We read Microsoft as
addressing the narrow situation where a hopeful class
action plaintiff uses a stipulation of dismissal as a tactic
to overcome the limitations placed on appellate jurisdic-
tion by 28 U.S.C. § 1291.”).
10 PRINCETON DIGITAL IMAGE CORP. v. OFFICE DEPOT INC.
2010) (only “a stipulated final judgment after a dispositive
ruling” is appealable); see also Wilson Sporting Goods Co.
v. Hillerich & Bradsby Co., 442 F.3d 1322, 1326 (Fed. Cir.
2006) (“[F]inal judgment in a patent case will usually
produce a judgment of infringement or non-infringement.
This court reviews claim construction only as necessary to
reach that final judgment on an infringement cause of
action.”); Nystrom v. TREX Co., 339 F.3d 1347, 1350
(Fed. Cir. 2003) (“[I]mmediate appeal of an interlocutory
claim construction ruling without a resolution of all of the
factual issues of infringement or validity dependent
thereon is often desired by one or both of the parties for
strategic or other reasons. But, other than the accommo-
dation for deferred accounting in 28 U.S.C. § 1292(c)(2),
the rules of finality that define the jurisdiction of this
court do not contain special provisions for patent cases or
admit to exceptions for strategic reasons or other-
wise . . . .”).
Here the district court’s damages rulings were not
dispositive, as is required under Microsoft. In Microsoft,
the interlocutory order denying class certification was not
dispositive because the order did not resolve any element
of the plaintiffs’ claims on the merits. See 137 S. Ct. at
1710–11. Microsoft at least establishes that a voluntary
dismissal does not constitute a final judgment where the
district court’s ruling has not foreclosed the plaintiff’s
ability to prove the required elements of the cause of
action. This interpretation of Microsoft has been adopted
by the other circuits that have followed Microsoft. In
Keena there was no final resolution of liability. See 886
F.3d at 362. In Board of Trustees there was no final
ruling as to damages. See 884 F.3d at 626.
Several decisions by other circuits pre-dating Mi-
crosoft reached the same result and are virtually identical
to this case. In Palmieri v. Defaria, 88 F.3d 136, 139–40
(2d Cir. 1996), the district court entered an order dismiss-
PRINCETON DIGITAL IMAGE CORP. v. OFFICE DEPOT INC. 11
ing the complaint after the district court had excluded
plaintiff’s preferred evidence in an in limine order. The
Second Circuit held that there was no appealable final
decision because the district court had “expressly declined
to take the position . . . that [the plaintiff’s remaining]
proof as a whole was insufficient as a matter of law.” Id.
at 140. “The district court judge here continually showed
his willingness to revisit all of his rulings depending upon
how the evidence developed.” Id. at 141. Plaintiff “made
clear to the district court that he sought to appeal the in
limine evidentiary rulings without proceeding to trial.
However, under the circumstances, there was no course of
action he could have taken that would have allowed this
to occur.” Id.; see also Ali v. Fed. Ins. Co., 719 F.3d 83, 88
(2d Cir. 2013) (explaining that although a plaintiff may
“appeal from a voluntary dismissal” when “a prior or-
der . . . had in effect dismissed plaintiffs’ complaint,” “to
qualify as an ‘effective dismissal’ of the claim, . . . the
adverse ruling must have rejected the claim as a matter of
law” (citation omitted)).
In Verzilli v. Flexon, Inc., 295 F.3d 421, 422 (3d Cir.
2002), the district court had entered an order restricting
the plaintiff’s damages for failure to follow the court’s pre-
trial discovery rules. The plaintiff then entered into a
consent judgment in an attempt to facilitate an appeal
challenging the limitation of damages. Id. The Third
Circuit dismissed for lack of jurisdiction, concluding that
the challenged order was interlocutory and that the
consent judgment did not create finality under § 1291.
See id. at 422–25.
In Union Oil Co. of California v. John Brown E&C,
121 F.3d 305, 309 (7th Cir. 1997), the district court had
ruled that the plaintiff’s breach of contract damages were
limited to $332,000, rather than the $8 million it sought.
The plaintiff, “not wishing to continue with the litigation
if damages were so limited, entered into a stipulation . . .
12 PRINCETON DIGITAL IMAGE CORP. v. OFFICE DEPOT INC.
conditionally settling the case” and obtained a purported
final order. Id. at 306. The Seventh Circuit held that
there was no final decision and dismissed the appeal,
because “the merits were never decided”—the plaintiff
merely “d[id] not believe it’s worth the fight” to continue
litigating. Id. at 309, 312; see also Massey Ferguson Div.
of Variety Corp. v. Gurley, 51 F.3d 102, 104–05 (7th Cir.
1995) (“Not until all of the elements of a case have been
wrapped up is there a final judgment . . . .”). Nothing in
Microsoft calls these cases into question.
In sum, the cases both before and after Microsoft
make clear that unless the district court has conclusively
determined, including determined by consent, that the
plaintiff has failed to satisfy a required element of the
cause of action, a voluntarily dismissal lacks finality. 3
C
Here there was no final ruling by the district court
barring recovery on Adobe’s breach claim because of a
failure to prove a required element of that claim. Under
New Jersey law, actual damages are not even a required
element of a breach of contract claim. “[W]henever there
is a breach of contract . . . the law ordinarily infers that
damage ensued, and, in the absence of actual damages,
the law vindicates the right by awarding nominal damag-
es.” Nappe v. Anschelewitz, Barr, Ansell & Bonello, 477
3 We have held that “a final judgment exists when a
district court fully adjudicates some claims and by con-
sent dismisses” all remaining unadjudicated claims,
including counterclaims. Atlas IP, LLC v. Medtronic, Inc.,
809 F.3d 599, 604 (Fed. Cir. 2015) (emphasis added).
That final judgment allows review of the adjudicated
claims but not of the unadjudicated claims. Atlas pro-
vides no support for reviewing claims that have been
partially adjudicated.
PRINCETON DIGITAL IMAGE CORP. v. OFFICE DEPOT INC. 13
A.2d 1224, 1228 (N.J. 1984); Karcher v. Phil. Fire &
Marine Ins. Co., 116 A.2d 1, 3 (N.J. 1955) (plaintiff who
“established a breach of the contract” “was entitled to at
least a judgment for nominal damages”). Nothing in the
district court’s rulings foreclosed an award of nominal
damages. Moreover, the district court did not even pre-
clude Adobe from establishing actual damages, but in fact
ruled multiple times that “there are purely defensive
damages that can be proven on this record.” J.A. 106–07.
The district court’s rulings did not foreclose Adobe’s
ability to satisfy a required element of its breach claim;
they merely limited Adobe’s potential actual damages as
in the cases discussed above.
Accordingly, we conclude that Adobe could still have
proceeded to trial on its breach claim, and was required to
do so to obtain a final decision on the merits that could be
appealed. To be sure, the prospect of only a small damag-
es recovery may have discouraged Adobe from going to
trial, but the cases discussed earlier establish that the
fact that continuing litigation could be economically
imprudent does not create a “final decision.” See Coopers
& Lybrand, 437 U.S. at 477; Keena, 886 F.3d at 362;
Union Oil, 121 F.3d at 309.
Adobe resists this conclusion, arguing that the district
court’s judgment here qualifies as a “final decision” be-
cause “there is no action remaining for the district court
to take.” Appellant’s Reply Br. at 4. But the fact that
Adobe “persuade[d] [the] district court to issue an order
purporting to end the litigation” does not create finality
under Microsoft. 137 S. Ct. at 1715. Because the pur-
ported final judgment is ineffective, the district court
must treat the case as though final judgment had never
been entered. There are thus further steps remaining for
the district court to take: it must determine whether
PDIC breached its license agreement with Adobe, and if
so, it must determine the damages (actual or nominal) to
14 PRINCETON DIGITAL IMAGE CORP. v. OFFICE DEPOT INC.
which Adobe is entitled. In short, the case must continue
until there is a final disposition of the breach claim, at
which point there can be an appeal.
II
Because there is no final judgment in the case, we al-
so lack jurisdiction to consider Adobe’s objections to the
district court’s denial of attorneys’ fees under § 285 and
sanctions under Rule 11, as well as PDIC’s cross-appeal
regarding the two sanctions imposed on it.
Although an order regarding attorneys’ fees entered
after a final judgment on the merits is separately appeal-
able, here the district court’s order denying fees preceded
any judgment on the merits. Such an interim order
denying fees is generally not appealable. See Giraldo v.
Building Serv. 32B-J Pension Fund, 502 F.3d 200, 203 (2d
Cir. 2007) (denial of fees while merits litigation continued
was not appealable until “following the district court’s
final judgment on the merits”); 15B Charles A. Wright,
Arthur R. Miller & Edward H. Cooper, Federal Practice
and Procedure § 3915.6 (2d ed. 1992) [hereinafter “Wright
& Miller”] (“Interim attorney fee awards present appeal
questions quite different from awards made upon conclu-
sion of proceedings on the merits. Refusal to make an
interim award is not appealable . . . .”). In some limited
and unusual circumstances, decisions as to fees before a
final judgment on the merits might be appealable as
collateral orders, particularly if there is reason to believe
that there will be no opportunity for a future appeal on
the issue. See Graham v. Hartford Life & Accident Ins.
Co., 501 F.3d 1153, 1163 n.11 (10th Cir. 2007) (denial of
petition for fees in an ERISA case appealable as a collat-
eral order); Wright & Miller, supra, § 3915.6 (“Appeal
may be allowed, however, if there is substantial ground to
fear that the award [of fees] cannot be recaptured if later
proceedings make that appropriate or if the award is
PRINCETON DIGITAL IMAGE CORP. v. OFFICE DEPOT INC. 15
made in a complex proceeding that promises to endure a
long time.”). No circumstances exist here that would
justify treating the denial of fees as an order collateral to
the merits.
The same is true for orders imposing or denying sanc-
tions on a party to the proceeding: in general, such orders
are separately appealable only if entered after a final
judgment on the merits. See Sanders Assocs., Inc. v.
Summagraphics Corp., 2 F.3d 394, 398 (Fed. Cir. 1993)
(order imposing monetary sanctions in the course of
litigation not immediately appealable, but would only be
“reviewable after final judgment is entered” on the mer-
its); Tenkku v. Normandy Bank, 218 F.3d 926, 927 (8th
Cir. 2000) (order imposing discovery sanctions on party
not immediately appealable); McCright v. Santoki, 976
F.2d 568, 570 (9th Cir. 1992) (denial of motion for Rule 11
sanctions not immediately appealable); Wright & Miller
supra, § 3914.30 (“Denial of a party’s request for sanctions
of whatever variety ordinarily should not be appealable”
before final judgment on the merits).
Only once there has been a final decision on the con-
tract claim may there be an appeal from the denial of fees
pursuant to § 285, the denial of Rule 11 sanctions, and the
imposition of monetary sanctions on PDIC.
CONCLUSION
The district court’s judgment is not final. We lack
jurisdiction over this appeal and cross appeal.
DISMISSED
COSTS
No costs.