Unpublished Dispositionmichigan Conference of Teamsters Welfare Fund, Gerald M.wiedyk, Plaintiffs-appellees, v. Midwest Paper Products, Inc., a Michigan Corporation,defendant-appellant, 925 F.2d 1464 (6th Cir. 1991)

ORDER

This matter is before the court for consideration of the defendant's response to this court's order of December 26, 1990, directing the defendant to show cause why its appeal should not be dismissed for lack of jurisdiction. The defendant has appealed the district court's November 20, 1990 order granting partial summary judgment for plaintiffs. The plaintiffs have other claims remaining against the defendant which have not yet been adjudicated.

The December 26th show cause order was premised on the lack of certification for an interlocutory appeal pursuant to Rule 54(b) Fed. R. Civ. P. or 28 U.S.C. § 1292(b). The defendant has responded by submitting a copy of a petition which the defendant filed in the district court asking that the court's judgment be certified for immediate appeal under 28 U.S.C. § 1292(b). The defendant asks that its appeal not be dismissed pending the district court's ruling on its petition.

Certification under 11 U.S.C. § 1292(b) in the district court after the notice of appeal has been filed does not confer jurisdiction in this court. An appeal from an interlocutory order containing the statement prescribed by 28 U.S.C. § 1292(b) may be sought by filing a petition for permission to appeal with the clerk of the court of appeals within ten (10) days after the entry of such order in the district court. Rule 5(a) Fed. R. App. P. In the absence of an application for permission to appeal, this court will not entertain the appeal. Review under Sec. 1292(b) should be sparingly granted and then only in exceptional cases. See Kraus v. Board of County Road Comm'rs., 364 F.2d 919, 922 (6th Cir. 1966); Lynch v. Johns-Manville Sales Corp., 701 F.2d 44, 45 (6th Cir. 1983) (per curiam).

It is therefore ORDERED that the defendant's appeal is dismissed without prejudice to the defendant's right to file a timely petition for permission to appeal in the event of proper certification by the district court. Rule 9(b), Local Rules of the Sixth Circuit.