CA1: Two issues, two courts of appeal, two trials, two notices of appeal and no sanctions

Cytologix Corp v. Ventana Medical, No. 07-2629.  Okay, we got a couple of large law firms fighting it out over some fairly minor procedural issues.  My guess is that they spent lots of billable hours on this, so if you ever have a similar issue, you can get the briefs.  Anyway, there were two lawsuits filed.  There was no formal order of consolidation, but “After two trials, both combining claims from each action, the district court entered final judgment on all claims....the district court later entered an order stating that, in actuality, the cases were consolidated for trial and ordering that they be consolidated, nunc pro tunc, as of the commencement of the first trial.” 

Then Cytologix filed identical notices of appeal in the First Circuit and Federal Circuit (since there were patent cases).  Okay, covering all the bases.  Not bad.  Ventana moves to dismiss and, of course, asks for sanctions. 

CytoLogix suggests that the patent issues be transferred to the Federal Circuit. But, the First says that this isn’t necessary because they already filed a notice of appeal there, and therefore “However, because an identical appeal is already pending there, we will simply dismiss the appeal mistakenly filed here, without prejudice.” 

The First then adds that this wasn’t frivolous, so no sanctions are in order.