Shamrock Technologies, Inc. v. Medical Sterilization, Inc., and Robert S. Luniewski , 873 F.2d 1451 ( 1989 )

873 F.2d 1451

Unpublished Disposition
NOTICE: Federal Circuit Local Rule 47.8(b) states that opinions and orders which are designated as not citable as precedent shall not be employed or cited as precedent. This does not preclude assertion of issues of claim preclusion, issue preclusion, judicial estoppel, law of the case or the like based on a decision of the Court rendered in a nonprecedential opinion or order.
SHAMROCK TECHNOLOGIES, INC., Plaintiff-Appellee,
v.
MEDICAL STERILIZATION, INC., and Robert S. Luniewski,
Defendants-Appellants.

No. 89-1161.

United States Court of Appeals, Federal Circuit.

Feb. 21, 1989.

Before MARKEY, Chief Judge, and MAYER and MICHEL, Circuit Judges.

MARKEY, Chief Judge.

ORDER

1

Shamrock Technologies, Inc. (Shamrock) moves to dismiss. Medical Sterilization, Inc., et al. (Medical) opposes the motion. Shamrock moves for leave to file a reply. Medical opposes the motion for leave or, in the alternative, moves for leave to file a surreply.

2

Medical noticed an appeal from an interlocutory order of the United States District Court for the Eastern District of New York striking Medical's affirmative defense of invalidity on the basis of assignor estoppel. Medical argues here that the order is appealable under the Gillespie exception to the final judgment rule. See Gillespie v. United States Steel Corp., 379 U.S. 148 (1964). See also Tenneco Resins, Inc. v. Reeves Brothers, 736 F.2d 1508 (Fed.Cir.1984).

3

The Supreme Court has instructed that "[i]f Gillespie were extended beyond the unique facts of that case, Sec. 1291 would be stripped of all significance." Coopers & Lybrand v. Livesay, 437 U.S. 463, 477 n. 30 (1978). Accord Jeannette Sheet Glass Corp. v. United States, 803 F.2d 1576, 1583 (Fed.Cir.1986). Medical has not shown why the extremely narrow Gillespie exception should be applied to its case.

4

Accordingly,

IT IS ORDERED THAT:

5

(1) The motion to dismiss is granted.

6

(2) Shamrock's motion for leave to file a reply is granted.

7

(3) Medical's motion for leave to file a surreply is granted.