Lincoln Lynch, Plaintiff-appellee, v. Johns-manville Sales Corp., et al., Defendants,gaf Corporation, Defendant-appellant, 701 F.2d 43 (6th Cir. 1983)

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U.S. Court of Appeals for the Sixth Circuit - 701 F.2d 43 (6th Cir. 1983)

Feb. 22, 1983

John H. Burtch, Columbus, Ohio, for defendant-appellant.

John P. Harrington, Cincinnati, Ohio, Robert E. Sweeney, Cleveland, Ohio, for plaintiff-appellee.

Before LIVELY, MARTIN and KRUPANSKY, Circuit Judges.


This matter is before the court upon consideration of appellee's motion to dismiss and appellant's response. The case arises out of asbestos litigation.

On October 28, 1982, appellant's motion for a stay pursuant to 11 U.S.C. § 362(a) (1) was denied by the district court. Previously, an automatic stay had been granted to two of appellant's co-defendants, Johns-Manville and Unarco, because they had filed Chapter 11 reorganization petitions in two bankruptcy courts. Appellant appealed from the October 28 order that denied it, as a solvent co-defendant, protection under the automatic stay provision of 11 U.S.C. § 362(a) (1).

Appellant contends the order of the district court denying its motion for a stay is appealable under 28 U.S.C. § 1291 as a "collateral order," defined in Cohen v. Beneficial Loan Corp., 337 U.S. 541, 545-47, 69 S. Ct. 1221, 1225-26, 93 L. Ed. 1528 (1949). Upon consideration this court concludes that the order in the present case is not within the "small class" described in Cohen which may be appealed pursuant to Sec. 1291 even though the usual requirement of finality is not met. We also conclude that the order is not appealable pursuant to 28 U.S.C. § 1292(a) (1) as one refusing an injunction. See Jackson Brewing Co. v. Clarke, 303 F.2d 844 (5th Cir. 1962); Jensenius v. Texaco, Inc., 639 F.2d 1342 (5th Cir. 1981); Mellon Bank, N.A. v. Pritchard-Keang Nam Corp., 651 F.2d 1244 (8th Cir. 1981).

Since this court lacks jurisdiction over the appeal, the motion to dismiss must be granted.

The appeal is dismissed.