420 F.2d 535: Business Communications, Inc., Plaintiff-appellee, v. Cahners Publishing Company, Defendant-appellant
United States Court of Appeals Sixth Circuit. - 420 F.2d 535
December 23, 1969
Kenneth G. Weinberg, Avery S. Cohen, Gottfried, Ginsberg, Guren & Merritt, Cleveland, Ohio, on brief for defendant-appellant.
Edward I. Stillman, Cleveland, Ohio, on brief for plaintiff-appellee.
Before WEICK and CELEBREZZE, Circuit Judges, and O'SULLIVAN, Senior Circuit Judge.
This appeal is from an order of the District Court granting plaintiff's motion for summary judgment on defendant's cross-complaint. The case is pending in the District Court on the Amended Complaint and the Answer thereto.
The order granting summary judgment did not expressly determine that there is no just reason for delay, as required by Rule 54(b) of the Federal Rules of Civil Procedure, and hence is not a final order from which an appeal may be taken. Estate of Burks v. Ross (418 F.2d 913 (6th Cir. 1969)); Partin v. Hassan Motors, Inc., 363 F.2d 104 (6th Cir. 1966); Gabbard v. Rose, 330 F.2d 705 (6th Cir. 1964). The purpose of the rule was to restrict piece-meal appeals.
The Court, sua sponte, orders that the appeal be and it is hereby dismissed. If upon the remand the District Judge determines to enter an order in conformity with Rule 54(b), we will permit any appeal therefrom to be heard on the present briefs and record, supplemented by the record of the proceedings subsequent to the remand. Miles v. City of Chandler, 297 F.2d 690 (9th Cir. 1961).
We express no opinion on what the District Court should do on the remand, as this involves the exercise of his discretion.