Unpublished Dispositionjohn Michael Anderson, Plaintiff-appellant, v. Jim Greene, Secretary; Shirley Sharp; al Parkes, Warden;betty Lou Vaughn; Secretary of Corrections,defendants-appellees, 883 F.2d 74 (6th Cir. 1989)

ORDER

This matter is before the court upon consideration of defendant-appellee Greene's motion to dismiss on the basis that the order appealed dismissed only one of five defendants. Plaintiff-appellant responded stating that the order was appealable under 28 U.S.C. § 1292(a) (1) and also quoting a portion of 28 U.S.C. § 1292(b) to support jurisdiction.

A review of the record indicates that Anderson filed a complaint on January 13, 1989, naming five defendants. On March 24, 1989, a memorandum opinion and order were entered dismissing defendant Greene and specifically stating that such was "not a final and appealable order." Plaintiff's April 7, 1989, motion to alter or amend the March 24 order pursuant to Fed. R. Civ. P. 59(e) and 60(b) was denied by order entered May 3, 1989. Plaintiff appealed the May 3 order on May 15, 1989.

This court lacks jurisdiction in this appeal. Absent a Fed. R. Civ. P. 54(b) certification, an order disposing of fewer than all the claims or parties involved in the action is not appealable. Liberty Mut. Ins. Co. v. Wetzel, 424 U.S. 737, 742-45 (1976); Solomon v. Aetna Life Ins. Co., 782 F.2d 58, 59-60 (6th Cir. 1986). No Rule 54(b) certification was made in the instant case. The final decision of the district court has not been entered during the pendency of this appeal; therefore, this court lacks jurisdiction. See Gillis v. United States Dep't of HHS, 759 F.2d 565, 569 (6th Cir. 1985).

It is ORDERED that the motion to dismiss be granted and the appeal be, and it hereby is, dismissed. Rule 8, Rules of the Sixth Circuit.