N.w. Cole & Company Ltd., Plaintiff-appellant, v. Sage Systems, Inc., Defendant-appellee, 823 F.2d 548 (4th Cir. 1987)

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US Court of Appeals for the Fourth Circuit - 823 F.2d 548 (4th Cir. 1987) Submitted April 15, 1987. Decided July 7, 1987

Josephine Lucille Ursini, for appellant.

Phillips Paul O'Shaughnessy, John Sanbower, Sandbower, Gabler & O'Shaughnessy; Mark H. Lynch, Peter Nickles, Elliott Schulder, Covington & Burling, for appellee.

Before RUSSELL, WIDENER and HALL, Circuit Judges.


N.W. Cole and Company brought this action against Sage Systems for breach of contract. The district court granted summary judgment for Sage and stated in its order that Sage's counterclaims 'remain [ed] despite judgment being entered against Cole's claims.' Cole brought this appeal and Sage filed a motion to dismiss the appeal as interlocutory under Rule 54(b) and for double costs and attorneys' fees. Cole filed a motion in the district court for clarification of whether its order was final or in the alternative to certify its judgment as final pursuant to Fed. R. Civ. P. 54(b). Cole then filed a motion in this Court requesting a limited remand to allow the district court to certify its judgment as final. The district court denied Cole's motion. Thus, the district court's judgment is clearly nonfinal, and we dismiss Cole's appeal for lack of jurisdiction pursuant to 28 U.S.C. § 1291. Sage's motion for double costs and attorneys' fees pursuant to Rule 38 is denied. Because the dispositive issues recently have been decided authoritatively, we dispense with oral argument.