HENDERSON, Circuit Judge:
This is an appeal from two district court orders granting the defendants summary judgment on two of the three counts of the complaint. The other count remains for trial in the district court, thereby foreclosing our jurisdiction to review the partial summary judgments themselves. However, the complaint also sought injunctive relief. Arguably, the orders granting summary judgment effectively denied the prayer for an injunction. To the extent that we have jurisdiction to review this constructive denial of injunctive relief, we affirm.
Our limited review renders unnecessary an extended discussion of the substantive issues. Appellate jurisdiction is the most difficult aspect of this appeal, making a detailed examination of the pleading sequence necessary.
On October 19, 1977, Gordon Gould sued Control Laser Corporation (Control), claiming patent infringement. Control denied the allegations and filed a counterclaim for a declaration of invalidity and non-infringement. Gould then sought by amendment to add Holobeam Laser Corporation (Holobeam), a wholly owned subsidiary of Control, as a defendant and to include claims of group boycott and intentional interference with patent rights. The motion to amend was denied on July 31, 1978.
On July 25, 1978, Gould filed the present action against Control and Holobeam. He charged both with patent infringement, antitrust conspiracy and tortious interference with his patent rights. On November 27, 1978, the district court granted the defendants' motion to join Gould's licensing agent, Refac International, Ltd. (Refac), as an indispensable party plaintiff, and granted the defendants' motion for summary judgment on the conspiracy count. Gould v. Control Laser Corp., 462 F.Supp. 685 (M.D.Fla.1978).
On December 20, 1978, Gould and Refac filed another amended complaint, basically restating the three causes of action — patent infringement, antitrust conspiracy and tortious interference with patent rights — but adding Refac as a plaintiff. This second amended complaint also contained requests for preliminary and permanent injunctions.
As the case now stands the complaint contains three counts. Count one charges that Control and Holobeam infringed Gould's patent, count two alleges that the defendants and others agreed to boycott the patent in violation of the antitrust laws, and count three complains that the defendants tortiously interferred with Gould's licensing efforts.
On October 3, 1979, Gould
Save the Bay, Inc. v. United States Army, 639 F.2d 1100, 1102 (5th Cir. 1981) (citations omitted).
Congress granted to the circuit courts jurisdiction over appeals from final district court judgments unless those decisions are appealable directly to the Supreme Court, 28 U.S.C.A. § 1291, and, generally, we are without authority to review district court orders until they become final. Rule 54(b) of the Federal Rules of Civil Procedure explicitly provides that an order adjudicating fewer than all the claims in a multi-claim action is not final unless the district court makes "an express determination that there is no just reason for delay and ... an express direction for the entry of judgment." The plaintiffs never sought a Rule 54(b) determination and certification from
As Gould admits, the only possible source of jurisdiction is 28 U.S.C.A. § 1292(a), which confers appellate authority in us
Most summary judgments involve considerations not at all relevant to the propriety of injunctive relief, and thus the denial of a motion for summary judgment is not the denial of the movant's request for an injunction and is not appealable as such. Switzerland Cheese Assoc. v. E. Horne's Market, Inc., 385 U.S. 23, 87 S.Ct. 193, 17 L.Ed.2d 23 (1966). On the other hand, an adverse summary judgment necessarily rejects equitable protection. Compare Gardner v. Westinghouse Broadcasting Co., 437 U.S. 478, 98 S.Ct. 2451, 57 L.Ed.2d 364 (1978) with General Electric Co. v. Marvel Rare Metals Co., 287 U.S. 430, 53 S.Ct. 202, 77 L.Ed. 408 (1932). Our first inquiry then is whether an order granting a defendant's motion for summary judgment as to one of several counts is appealable as an "interlocutory order ... refusing ... [an] injunction."
The appellate briefs focus exclusively on the correctness of the ruling on the motions for summary judgment, with no mention of permanent or preliminary injunctions, much less the standards under which they are granted or reviewed. The thrust of Gould's argument is that, contrary to the conclusion of the district court, the complaint and affidavits reveal the existence of material issues of facts.
Although the second amended complaint sought preliminary and permanent injunctions, the plaintiffs never pressed the matter in the district court, nor did they call it to our attention. This is not a case where the district court refused to rule, cf. United States v. Lynd, 301 F.2d 818, 822-23 (5th Cir.), cert. denied, 371 U.S. 893, 83 S.Ct. 187, 9 L.Ed.2d 125 (1962), and Gould does not seek our aid in procuring an injunction, cf. Watson v. Comm'rs Court of Harrison County, 616 F.2d 105, 107 (5th Cir. 1980); McCoy v. Louisiana State Bd. of Education, 332 F.2d 915, 917 (5th Cir. 1964); Lynd. Nor is this a case where the movant — more precisely the constructive movant — claims that he will be irreparably injured if an injunction does not issue. The appellant only poses the question of whether the summary judgments were improper. This issue could have been placed before us simply by following the procedures outlined in Rule 54(b). Gould never applied for Rule 54 certification, however.
There has been no showing made that these orders are ripe for appellate review. In any case, Gould has not demonstrated that he is entitled to injunctive relief.
The Supreme Court recently held that a district court's refusal to enter a consent decree containing injunctive provisions was appealable under 28 U.S.C.A. § 1292(a)(1). Carson v. American Brands, Inc., ___ U.S. ___, 101 S.Ct. 993, 67 L.Ed.2d 59 (1981). The Court was careful to note that an order is not appealable merely because it has the "practical effect" of denying an injunction.
101 S.Ct. at 995-97.
As stated earlier, Gould has never even attempted to show that the district court's orders will have irreparable consequences. If the quoted language from Carson is taken literally, this failure defeats our jurisdiction.
Accordingly, the appeal is DISMISSED in part and the orders are AFFIRMED insofar as they deny injunctive relief.
The third (interference with statutory rights) count used the same words but shifted a comma.