Free Reply to Response to Motion - District Court of Federal Claims - federal

Case 1:02-cv-00527-RJA-HBS Document 31-2 Case 1:05-cv-01075-TCW Document 169 Filed 09/01/2006 Page 1 1 of 2 Filed 05/11/2006 Page of 2

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK

SEVENSON ENVIRONMENTAL SERVICES, INC., Plaintiff, DECISION AND ORDER 02-CV-527A

v. SHAW ENVIRONMENTAL, INC.,

Defendant.

By Order dated March 22, 2006, the Court granted the motion of defendant Shaw Environmental, Inc. ("Shaw"), for summary judgment on its government contractor immunity defense under 28 U.S.C. § 1498. The Court's Order, however, did not address Shaw's pending counterclaims based on invalidity of the patents. Judgment was filed in favor of defendant Shaw on March 24, 2006. Plaintiff Sevenson Environmental Services, Inc. ("Sevenson"), now moves, pursuant to Rules 54(b) and 58 of the Federal Rules of Civil Procedure, to amend the March 24th judgment so as to indicate that the judgment addresses fewer than all of the claims pending in the case. Otherwise, the Federal Circuit Court of Appeals will lack jurisdiction over Sevenson's appeal of the Court's March 22nd Order until all claims in the case, including Shaw's counterclaims, have been resolved. In its response to Sevenson's motion, Shaw agrees to either (1) the entry of final judgment on all claims asserted by Sevenson and the dismissal of Shaw's counterclaims without prejudice to Shaw refiling its counterclaims if Sevenson's appeal

Case 1:02-cv-00527-RJA-HBS Document 31-2 Case 1:05-cv-01075-TCW Document 169 Filed 09/01/2006 Page 2 2 of 2 Filed 05/11/2006 Page of 2

is successful, or (2) the entry of final judgment on all of Sevenson's claims under Rule 54(b), with Shaw's counterclaims stayed pending final disposition of Sevenson's appeal. After reviewing the submissions of the parties, the Court hereby orders the entry of final judgment in favor of Shaw on all claims asserted by Sevenson and the dismissal of Shaw's counterclaims without prejudice to Shaw refiling its counterclaims if Sevenson's appeal is successful. The Clerk of Court shall file an amended judgment in accordance with this Decision and Order.

IT IS SO ORDERED. /s/

Richard J. Arcara

HONORABLE RICHARD J. ARCARA CHIEF JUDGE UNITED STATES DISTRICT COURT DATED: May 11 , 2006

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