ORDER

Cybex International, Inc. responds to the court’s order concerning the issue of whether its appeal should be dismissed as premature.

On September 9, 2005, Cybex filed a notice of appeal of the August 29, 2005 jury verdict entered by the United States District Court for the District of Massachusetts in Colassi v. Cybex Int'l, Inc., No. 02-CV-11909. However, at the time Cybex filed its notice of appeal the. district court had not entered judgment and Gary J. Colassi’s request for a permanent injunction was pending before the district court.

“A district court’s judgment is final where it ends the litigation on the merits and leaves nothing for the cpurt to do but execute the judgment.” Ultra-Precision Mfg. Ltd. v. Ford Motor Co., 338 F.3d 1353, 1356-57 (Fed.Cir. 2003) (citation omitted). Because the district court had not concluded its proceedings at the time Cybex filed its notice of appeal, we determine that there was no final judgment and dismiss. We note that the district court entered judgment on November 16, 2005 and Cybex may, of course, file a notice of appeal from the judgment within the time allowed by the Federal Rules of Appellate Procedure.

Accordingly,

IT IS ORDERED THAT:

(1) The appeal is dismissed.

(2) Each side shall bear its own costs.