Unpublished Dispositiondonn E. Rush, Plaintiff-appellant, v. United Technologies, Otis Elevator Division; Defendant-appellee,richard Caldwell, Defendant, 883 F.2d 75 (6th Cir. 1989)

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US Court of Appeals for the Sixth Circuit - 883 F.2d 75 (6th Cir. 1989) Aug. 21, 1989

Before NATHANIEL R. JONES and MILBURN, Circuit Judges, and BAILEY BROWN, Senior Circuit Judge.


The plaintiff, who filed a six-count complaint arising from his discharge from employment, appeals an order in which the district court grants the defendant's motion for partial summary judgment as to five of the six counts. The count of the complaint which alleges a cause of action under the Employee Retirement Income Security Act of 1974 (ERISA) remains pending. The district court has directed that a motion to dismiss that count be filed by August 31, 1989 and that a response be filed by September 22.

Absent certification for an interlocutory appeal under 28 U.S.C. § 1292(b) or Rule 54(b), Fed. R. Civ. P., an order disposing of fewer than all parties or claims in an action is nonappealable. William B. Tanner Co. v. United States, 575 F.2d 101, 102 (6th Cir. 1978) (per curiam). There has been no certification for an interlocutory appeal in this case.

It is therefore ORDERED that this appeal is dismissed sua sponte for lack of a final appealable order without prejudice to plaintiff's right to appeal the final judgment. Rule 9(b), Local Rules of the Sixth Circuit Court of Appeals.