937 F. 2d 622 - Smith Corona Corporation v. Pelikan Inc
937 F2d 622 Smith Corona Corporation v. Pelikan Inc
937 F.2d 622
SMITH CORONA CORPORATION, Plaintiff-Appellee,
v.
PELIKAN, INC., Defendant-Appellant.
No. 91-1240.
United States Court of Appeals, Federal Circuit.
May 21, 1991.
Unpublished Disposition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issue preclusion, judicial estoppel, law of the case or the like based on a decision of the Court rendered in a nonprecedential opinion or order.
ORDER
It has come to the attention of the court that no notice of appeal has been filed in this case.
Accordingly, this court never having had jurisdiction,*
IT IS ORDERED THAT:
(1) All orders issued herein are vacated.
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(2) The case is dismissed.
Pelikan, Inc. apparently misunderstands 28 U.S.C. Sec. 1292(a)(1), (c)(1) and Fed.R.App.P. 8. Section 1292, governing interlocutory decisions, permits a party to appeal from an interlocutory order granting an injunction. Rule 8, governing stays or injunctions, pending appeal, permits a party to move for a stay, pending appeal, of an injunction. However, that party must first file a notice of appeal from the injunction order. Indeed, Fed.Cir.R. 8(a) requires that a "motion for stay or injunction, pending appeal, must be accompanied by a copy of the notice of appeal that has been filed with the clerk of the trial court."
Review by mandamus is not appropriate where a normal appeal could have been filed. Moses H. Cone Hospital v. Mercury Constr. Corp., 460 U.S. 1, 8 n. 6 (1983) ("more fundamentally, a court of appeals has no occasion to engage in extraordinary review by mandamus in 'aid of its jurisdiction,' 28 U.S.C. Sec. 1651, when it can exercise the same review by a contemporaneous ordinary appeal."