NOTE: This disposition is nonprecedential.

United States Court of Appeals 

for the Federal Circuit ______________________ 

NISSIM CORP.,

Plaintiff-Appellant,

v.

CLEARPLAY, INC.,

LEE JARMAN, AND MATTHEW JARMAN,

Defendants-Appellees.

______________________ 

2013-1429

______________________ 

Appeal from the United States District Court for the 

Southern District of Florida in No. 04-CV-21140, Judge 

Paul C. Huck.

______________________ 

Decided: March 14, 2014 

______________________ 

JOHN C. CAREY, Carey Rodriguez Greenberg O’Keefe, 

LLP, of Miami, Florida, argued for plaintiff-appellant. 

ERIC BRIAN STORM, The Storm Law Firm, PLLC, of 

Austin, Texas, argued for defendants-appellees. 

______________________ 

Before NEWMAN, MOORE, and HUGHES, Circuit Judges.
2 NISSIM CORP. v. CLEARPLAY, INC. 

HUGHES, Circuit Judge. 

Nissim Corp. appeals from a district court order withdrawing jurisdiction to enforce a settlement agreement 

between Nissim and ClearPlay, Inc. Nissim also asks this 

court to review two orders denying summary judgment. 

We may only review final judgments. Because Nissim 

explicitly waived its right to challenge the only final 

judgment properly on appeal, we dismiss the appeal for 

lack of jurisdiction. 

I.

On May 13, 2004, Nissim Corp. sued ClearPlay, Inc.

and its founders, Matthew and Lee Jarman (collectively, 

“ClearPlay”) for patent infringement, misappropriation of 

trade secrets, and breach of contract. The parties eventually settled five days before trial, and the district court 

promptly dismissed Nissim’s suit with prejudice on November 30, 2005. The court retained jurisdiction, however, “solely to enforce the terms of the settlement 

agreement entered into between the parties.” J.A. 391.

Two years later, Nissim returned to the district court 

and moved to enjoin ClearPlay from engaging in activities 

allegedly outside the scope of the settlement agreement. 

Although the district court issued several interlocutory 

rulings during the proceedings that followed, it never 

resolved the merits of Nissim’s claims.1 Instead, the 

district court withdrew its discretionary jurisdiction over 

the settlement agreement without further ruling on any 

substantive issues in the case.

On appeal, Nissim does not challenge the district 

court’s withdrawal of jurisdiction. Nissim bases its ap1 For a more thorough discussion of the procedural 

history, see generally Nissim Corp. v. ClearPlay, Inc., 499 

F. App’x 23 (Fed. Cir. 2012).

 
NISSIM CORP. v. CLEARPLAY, INC. 3

peal on two issues the district court addressed in prior, 

unrelated orders denying summary judgment: (1) the 

district court’s allegedly erroneous interpretation of the 

settlement agreement and (2) ClearPlay’s alleged concession of noncompliance with the settlement agreement. 

II.

The final judgment rule limits appellate review to issues that “end[] the litigation on the merits and leave[] 

nothing for the court to do but execute the judgment.” 

Robert Bosch, LLC v. Pylon Mfg. Corp., 719 F.3d 1305, 

1308 (Fed. Cir. 2013) (en banc) (quoting Firestone Tire & 

Rubber Co. v. Risjord, 449 U.S. 368, 373 (1981)) (internal 

quotation marks omitted); see also 28 U.S.C. § 1295 (a)(1) 

(2012).

An order denying summary judgment is not a final 

judgment. As the Supreme Court has explained, “the 

denial of a motion for a summary judgment because of 

unresolved issues of fact does not settle or even tentatively decide anything about the merits of the claim. It is 

strictly a pretrial order that decides only one thing—that 

the case should go to trial.” Switz. Cheese Ass’n, Inc. v. E. 

Horne’s Mkt., Inc., 385 U.S. 23, 25 (1966). Accordingly, 

the final judgment rule generally “prohibits a party from 

appealing a district court’s denial of a motion for summary judgment.” Lermer Germany GmbH v. Lermer 

Corp., 94 F.3d 1575, 1576 (Fed. Cir. 1996).

A district court’s decision to withdraw discretionary 

jurisdiction is a final judgment, reviewable for abuse of 

discretion. See Carlsbad Tech., Inc. v. HIF Bio, Inc., 556 

U.S. 635, 640 (2009). And because it “is not a jurisdictional matter,” id., a party can waive review of that 

discretionary decision. See, e.g., Durant v. Servicemaster 

Co., 109 F. App’x 27, 31 (6th Cir. 2004); N.J. Turnpike 

Auth. v. PPG Indus., Inc., 197 F.3d 96, 113 (3d Cir. 1999); 

Int’l Coll. of Surgeons v. Chicago, 153 F.3d 356, 366 (7th 

Cir. 1998); Acri v. Varian Assocs., Inc., 114 F.3d 999, 1001 
4 NISSIM CORP. v. CLEARPLAY, INC. 

(9th Cir. 1997) (en banc); Doe ex rel. Fein v. Dist. of Columbia, 93 F.3d 861, 871 (D.C. Cir. 1996).

Here, Nissim explicitly waived its right to challenge 

the district court’s withdrawal of jurisdiction by stating, 

“Nissim believes the district court’s withdrawal of jurisdiction was an abuse of discretion, but . . . Nissim does not 

appeal that aspect of the district court’s order.” Appellant

Br. 6 n.1. Accordingly, we do not disturb the district 

court’s final order withdrawing jurisdiction. 

The only orders Nissim attempts to appeal are two

non-final orders denying summary judgment. To overcome the final judgment rule, Nissim argues that those 

orders are reviewable because they are “sufficiently firm” 

to trigger collateral estoppel (i.e., issue preclusion). See 

RF Del., Inc. v. Pac. Keystone Techs., Inc., 326 F.3d 1255, 

1261–62 (Fed. Cir. 2003). Given the contentious nature of 

these proceedings, see, e.g., Nissim Corp. v. ClearPlay, 

Inc., 499 F. App’x 23, 27, 27 n.4 (Fed. Cir. 2012), we 

understand Nissim’s concern that ClearPlay might attempt to use those rulings as the basis for a collateral 

estoppel argument in future proceedings. For at least 

three reasons, we find that these interlocutory rulings 

should not be the basis for collateral estoppel.

First, ClearPlay’s counsel conceded during oral argument that collateral estoppel would not apply in a related 

case. Oral Argument at 29:10–30:35, Nissim Corp. v. 

ClearPlay, Inc., No. 2013-1429 (Fed. Cir. Jan. 7, 2014), 

available at http://oralarguments.cafc.uscourts.gov/ 

default.aspx?fl=2013-1429.mp3. Thus, a court could find

that this concession precludes ClearPlay from adopting a 

contrary position. See, e.g., Organic Seed Growers and 

Trade Ass’n v. Monsanto Co., 718 F.3d 1350, 1358 (Fed. 

Cir. 2013).

Second, it seems unlikely that a court would find the 

prerequisites for collateral estoppel satisfied under the

circumstances. See S.E.L. Maduro, Inc. v. M/V Antonio 
NISSIM CORP. v. CLEARPLAY, INC. 5

de Gastaneta, 833 F.2d 1477, 1483 (11th Cir. 1987) (noting that collateral estoppel applies only when a particular 

issue “was raised, litigated, and adjudicated in a prior 

lawsuit, and if the adjudication of the issue was necessary 

to the outcome of the prior lawsuit”). In this appeal, 

although the issues subject to the interlocutory rulings 

were raised, those rulings were not necessary to the 

outcome of this suit—the withdrawal of jurisdiction to 

enforce the settlement agreements. 

Third, even if a court were to find the prerequisites 

for collateral estoppel satisfied, this court’s determination 

that the orders denying summary judgment are unreviewable on appeal should nevertheless preclude the 

application of collateral estoppel. See W.R. Huff Asset 

Mgmt. Co. v. Kohlberg, Kravis, Roberts & Co., 566 F.3d 

979, 985 (11th Cir. 2009) (endorsing the view that issue 

preclusion does not apply when “[t]he party against whom 

preclusion is sought could not, as a matter of law, have 

obtained review of the judgment in the initial action”).

Accordingly, we decline to review the district court’s 

interlocutory orders denying summary judgment and 

dismiss Nissim’s appeal for lack of jurisdiction. 

DISMISSED