Chutzpah at the Northern District of Illinois: Toyo Tire v. Atturo Tire, 2021 WL 1853310, (Northern Dist. of IL, Eastern Div.) May 10, 2021. By James Michael Faier, M.P.P., M.B.A., J.D. (Reg. Patent Attorney 56731)

Between the lines I can hear Hon. Judge Mary Rowland scolding Toyo Tire in its case against Atturo Tire saying, you must be kidding me – you are twice sanctioned in this case for dragging your feet and now you want a certification under FRCP 54(b) so that you can immediately take an appeal because we ruled against you on your Lanham Act trade dress claim and your Illinois Deceptive Trade Practices Act claim – NOW – when you are four months from your jury trial scheduled to resolve all remaining issues.

I am hearing my kids chiming, “Are we here yet?”

Rule 54(b) allows the court to send a final judgment to appeal when the case can be cleanly and efficiently split with little loss of efficiency and little duplication of effort. Such is clearly not the case in Toyo v. Atturo that turns on whether Atturo was selling tires similar to Toyo’s Open Country Mountain Tires.

The bottom line was that the court foresaw all too well how the court of appeals would be forced to review material and re-review material if the case were split into parts.

What is amazing is that counsel for Toyo sought the splitting of the case in light of the fact that it was four months from a jury trial on all outstanding issues. What was there to benefit splitting the case? Judge Rowland specifically calls out more work for the courts and more work for Atturo as good reasons to deny the motion.