Unpublished Dispositionjoseph C. Murray, Plaintiff-appellant, v. Bank One, Columbus, N.a., Dean Witter Reynolds, Inc. Andvisa, U.s.a., Inc., Defendants-appellees, 765 F.2d 145 (6th Cir. 1985)

The defendants move this Court to dismiss the plaintiff's appeal from the district court's order of August 20, 1984 dismissing the plaintiff's copyright infringement and trade secret misappropriation claims. They allege that this Court lacks jurisdiction because the August 20 order was not final and appealable. The defendants are correct.

Because the August 20 memorandum and order did not dispose of all the claims in the action, it is not final and appealable. Oak Construction Company v. Huron Cement Company, 475 F.2d 1220, 1221 (6th Cir. 1973). The district court did not dispose of the defendants' counterclaim in the order. Moreover, the court's final judgment of August 22 does not mention the defendants' counterclaim, nor does it conform with the intentions specified in the August 20 order as to the trade secret misappropriation claim. Finally, the order was not certified as an appealable order pursuant to Rule 54(b), Federal Rules of Civil Procedure.

The plaintiff argues that the court may have intended to treat the defendants' counterclaim for a declaratory judgment as an affirmative defense and dismiss it by granting the defendants' Rule 12(b) (6), Fed. R. Civ. P., motion. However, such an intent cannot be discerned by either of the court's documents. The order as well as the final judgment should have made reference to all of the claims in the action.

Accordingly, this Court can only conclude that the action is still pending in the district court. Consequently, this Court lacks jurisdiction and it is ORDERED that the defendants' motion be and hereby is granted.