Fuji Photo Film Co., Ltd v. Benun , 240 F. App'x 862 ( 2007 )


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  •                        NOTE: This order is nonprecedential.
    United States Court of Appeals for the Federal Circuit
    2007-1207
    FUJI PHOTO FILM CO., LTD.,
    Plaintiff-Appellee,
    v.
    JACK C. BENUN,
    Defendant-Appellant,
    and
    POLYTECH (SHENZHEN) CAMERA CO. LTD.,
    Defendant-Appellant,
    and
    POLYTECH ENTERPRISES, LTD.,
    Defendant-Appellant,
    and
    RIBI TECH PRODUCTS LLC,
    Defendant-Appellant.
    ON MOTION
    Before SCHALL, GAJARSA, and LINN, Circuit Judges.
    LINN, Circuit Judge.
    ORDER
    Fuji Photo Film Co., Ltd. (Fuji) moves to dismiss Jack C. Benun et al.’s (Benun)
    appeal and moves for sanctions. Benun opposes. Fuji replies. Benun also moves for a
    stay, pending appeal, of the execution of contempt of court sanctions. Fuji opposes.
    On April 18, 2005, Fuji sued Benun alleging infringement of patents pertaining to
    disposable cameras. On June 15, 2005, the United States District Court for the District
    of New Jersey granted Fuji’s motion to preliminarily enjoin Benun from various
    commercial activities, including the sale of disposable cameras to persons outside of
    the United States for purposes of reimporting them.
    After discovering that Benun had allegedly reimported over a million disposable
    cameras into the United States, Fuji sought a contempt order in the district court. On
    December 7, 2006, the district court entered an order finding Benun in contempt of the
    preliminary injunction and directing Benun to prepare an accounting of all revenue
    received from the sale of these reimported disposable cameras.         The district court
    expressly reserved judgment on the issue of disgorgement.         The district court also
    directed Benun to pay Fuji’s reasonable attorney fees in connection with the contempt
    motion but did not set an amount.
    On December 15, 2006, Benun submitted an accounting report asserting that the
    reimported disposable cameras were sold at a loss. Fuji contested. The district court’s
    judgment on the issue of disgorgement remains pending. On February 7, 2007, the
    district court directed Benun to pay Fuji $117,486 in attorney fees. On March 7, 2007,
    Benun filed the present notice of appeal as well as a motion in the district court to stay
    enforcement of the award of attorney fees. On May 2, 2007, the district court declined
    staying execution of the contempt of court sanctions.
    2007-1207                                   2
    Benun seeks review in this court of the attorney fee award and the contempt
    determination.   However, an award of attorney fees ordered before entry of a final
    judgment on the merits is not appealable until after final judgment is entered. Sanders
    Assocs., Inc. v. Summagraphics Corp., 
    2 F.3d 394
     (Fed. Cir. 1993).
    Concerning the contempt determination, Benun has not convinced us that the
    interlocutory order is otherwise appealable. Benun argues that review of the contempt
    order is proper, citing Seiko Epson Corp. v. Nu-Kote Int'l, Inc., 
    190 F.3d 1360
     (Fed. Cir.
    1999). In that case, we held we had jurisdiction to review a contempt order when "the
    opportunity to purge the contempt has passed and the position of the parties has been
    affected by the contempt order." Seiko Epson, 
    190 F.3d at 1369
    . However, that case
    also noted that if no sanction for the contempt had been imposed, no appeal is allowed.
    
    Id.
     Here, the amount of the sanction, i.e., the amount of the disgorgement, has not
    been determined.
    Depending on how the payment of any sanction is directed by the district court,
    the order directing payment may or may not be appealable before entry of final
    judgment. See In re Christensen Eng'g Co., 
    194 U.S. 458
    , 460-61 (1904) (a district
    court order directing payment of a contempt fine, in part to the injured party and in part
    to the court, for violation of a preliminary injunction in a patent case "was clearly punitive
    and in vindication of the authority of the court" and was thus appealable; if the fine is
    ordered payable only to the party injured by the disobedience, then "it is to be regarded
    as merely an interlocutory order, and to be reviewed only on appeal from the final
    decree."). We have considered Benun's other arguments but remain convinced that we
    must dismiss the appeal for lack of jurisdiction.
    2007-1207                                     3
    Accordingly,
    IT IS ORDERED THAT:
    (1)   The motion to dismiss is granted.
    (2)   The motion for a stay, pending appeal, is moot.
    (3)   The motion for sanctions is denied.
    (4)   All sides shall bear their own costs.
    FOR THE COURT
    June 5, 2007                              /s/ Richard Linn
    Date                                   Richard Linn
    Circuit Judge
    cc:   Lawrence Rosenthal, Esq.
    John M. Peterson, Esq.
    s19
    ISSUED AS A MANDATE:             June 5, 2007
    2007-1207                                  4
    

Document Info

Docket Number: 2007-1207

Citation Numbers: 240 F. App'x 862

Judges: Gajarsa, Linn, Schall

Filed Date: 6/8/2007

Precedential Status: Non-Precedential

Modified Date: 8/3/2023