Unpublished Dispositionronnie Beard, Plaintiff,larry Claybrooks, Plaintiff-appellant, v. Bill Cook; Jack Wylemans, Defendants-appellees, 848 F.2d 188 (6th Cir. 1988)

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US Court of Appeals for the Sixth Circuit - 848 F.2d 188 (6th Cir. 1988) May 19, 1988

Before KRUPANSKY and DAVID A. NELSON, Circuit Judge, and BARBARA K. HACKETT, District Judge.* 

ORDER

This appeal has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit.

A review of the record indicates that appellant appealed on February 23, 1988 from the February 18, 1988, order of the district court consolidating civil actions 87-1121 and 87-1128. The district court entered an order on March 11, 1988, denying various motions of appellant, advising that the appeal is interlocutory, and declining to make a 28 U.S.C. § 1292(b) certification.

This court lacks jurisdiction in this appeal. Generally, an order of consolidation is not appealable absent exceptional circumstances. The order may be appealable under the "collateral order" exception of Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541 (1949), if consolidation would create a plain case of prejudice through confusion of issues. In re Master Key Antitrust Litig., 528 F.2d 5, 13 (2d Cir. 1975). The instant appeal does not fall within this exception, nor was 28 U.S.C. § 1292(b) certification given by the district court.

It is ORDERED that the appeal be and hereby is dismissed for lack of jurisdiction. Rule 9(b) (1), Rules of the Sixth Circuit.

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The Honorable Barbara K. Hackett, U.S. District Judge for the Eastern District of Michigan, sitting by designation