The Cold Metal Process Company and the Union National Bank of Youngstown, Ohio, Trustee, v. United Engineering & Foundry Company, Appellant, 221 F.2d 115 (3d Cir. 1955)

The appellee in this case has filed a motion to dismiss the appeal of United Engineering & Foundry Company on the ground that the judgment appealed from is not final. A similar motion was made on March 21, 1955, which was granted. The order granting the motion was made "without prejudice to the right of the District Court * * * to enter a final judgment therein in accordance with the provisions of Rule 54(b) of the Federal Rules of Civil Procedure [28 U.S. C.]."

Following this order United presented to the United States District Court for the Western District of Pennsylvania a motion to vacate its judgment of January 19, 1955, and to enter judgment in accordance with Rule 54(b). This was done by the district court on March 30, 1955, after argument in open court. We think the determination made under the circumstances of this case is the very kind of thing Rule 54(b) was written to provide for. We see no violation of discretion on the part of the district judge in entering it.

The motion of the appellee to dismiss will, therefore, be denied.