A-1 Amusement Co. v. United States

GAJARSA, Circuit Judge.

ORDER

The United States moves to dismiss the appeal of A-l Amusement Co., Inc. et al. (A-l Amusement) as untimely. A-l Amusement opposes. The United States replies. A-l Amusement moves to consolidate this case with other pending appeals. The United States opposes. A-l Amusement replies.

A-l Amusement sued the United States in the Court of Federal Claims. Count I of the complaint was dismissed on October 19, 2000 and judgment on that count was entered by the Court of Federal Claims pursuant to Rule 54(b) of the United States Court of Federal Claims. That judgment informed A-l Amusement that any appeal of the dismissal of that count had to be filed within 60 days. A-l Amusement did not appeal.

Action on count II of A-l Amusement’s complaint was stayed, pending final disposition of a related case. On February 20, *7812001, the Supreme Court denied a petition for certiorari regarding our decision in that related case, B & G Enterprises, Ltd. v. United States, 220 F.3d 1318 (Fed.Cir.2000). The parties consented to dismissal of count II. The Court of Federal Claims dismissed that count and entered judgment accordingly. On April 5, 2001, A-l Amusement appealed. A-l Amusement seeks review of the dismissal of count I.*

An appeal of a judgment of the Court of Federal Claims is due within 60 days of the entry of judgment. Sofarelli Assocs., Inc. v. United States, 716 F.2d 1395, 1396 (Fed.Cir.1983). In this case, the Court of Federal Claims entered final judgment pursuant to Rule 54(b) on count I of the complaint on October 19, 2000. Clearly, A-l Amusement’s appeal is untimely.

A-l Amusement argues that the judgment on count 1 should not have been entered pursuant to Rule 54(b). The time to challenge that entry, on whatever ground, has passed. See In re Lindsay, 59 F.3d 942, 951(9th Cir.1995) (“[a] Rule 54(b) determination, right or wrong, starts the time for appeal running”). A-l Amusement’s other arguments regarding timeliness are without merit.

Accordingly,

IT IS ORDERED THAT:

(1) The United States’ motion to dismiss is granted.
(2) Each side shall bear its own costs.
(3) A-l Amusement’s motion to consolidate this appeal with other appeals is moot.

In its notice of appeal, A-l Amusement states that it appeals "from the order and judgment entered by the United States Court of Federal Claims on October 19, 2000 and the order and judgment entered on March 21, 2001, dismissing plaintiffs’ Amended Complaint.” In its response to the United States’ motion to dismiss, A-l Amusement does not state that it is seeking review of the March 21, 2001 dismissal of count II, to which it consented.