Unpublished Dispositionu.s. Auto Finance Company; Jeffrey E. Poorman; Edward F.solomon, Plaintiffs-appellants, v. Union Federal Savings & Loan, a Federal Savings Association;alan Luedtke; Larry Rosenbrook; Robert L. Freeman;miriam E. Mitchell; Henry W. Wolcott; Richard F.burmeister; John Burmeister; Kenneth W. White, Defendants-appellees, 889 F.2d 1089 (6th Cir. 1989)

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US Court of Appeals for the Sixth Circuit - 889 F.2d 1089 (6th Cir. 1989) Nov. 20, 1989

Before KRUPANSKY and RYAN, Circuit Judges, and EDWARD H. JOHNSTONE, Chief District Judge* .


The plaintiffs have appealed a nonfinal order which grants summary judgment in favor of several of the defendants, but explicitly leaves pending the plaintiffs' claims against two of the defendants. The order was not certified under either Fed. R. App. P. 54(b) or 28 U.S.C. § 1292(b) for an interlocutory appeal. An order to show cause why the appeal should not be dismissed was entered on October 24, 1989. The Union Federal Savings, a defendant-appellee, moved for dismissal of the appeal and damages, costs, attorneys' fees and other expenses incurred in the defense of the appeal pursuant to Fed. R. App. P. 38. The individual defendants have joined in the motion. The plaintiffs have responded to both the show cause order and the motion to dismiss. They concede that the order being appealed is not final, but ask that they be permitted to return to the district court within thirty days of the order to request certification under Fed. R. Civ. P. 54(b). The plaintiffs also oppose the imposition of Rule 38 costs.

The district court's order was clearly not appealable. William B. Tanner Co. v. United States, 575 F.2d 101, 102 (6th Cir. 1978) (per curiam); Oak Construction Company v. Huron Cement Company, 475 F.2d 1220 (6th Cir. 1973) (per curiam). Accordingly, this appeal shall be dismissed. However, this dismissal is without prejudice to the filing of a new, timely notice of appeal should the plaintiffs obtain a proper certification for an interlocutory appeal. See e.g. Solomon v. Aetna Life Ins. Co., 782 F.2d 58, 60 (6th Cir. 1986) (district court must provide reasons for such certification beyond a recitation of the rule).

We also decline to award the costs or attorneys' fees requested by the defendants. The plaintiffs' error in this appeal does not rise to the level of intentional misconduct contemplated by Fed. R. App. P. 38. See Boggild v. Kenner Products, 853 F.2d 465, 470 (6th Cir. 1988); NLRB v. Cincinnati Bronze, Inc., 829 F.2d 585, 591 (6th Cir. 1987); Dallo v. INS, 765 F.2d 581, 589 (6th Cir. 1985).

It is therefore ORDERED that this appeal is dismissed without prejudice to the plaintiffs' right to file a new, timely notice of appeal should the district court enter a proper Rule 54(b) certification. The defendants' motions for costs is denied.


The Honorable Edward H. Johnstone, Chief U.S. District Judge for the Western District of Kentucky, sitting by designation