Unpublished Dispositionagristor Leasing, a Wisconsin Co-partnership,plaintiff-counter-defendant-appellee, v. Walter Mohr; Barbara Mohr; Greg Mohr; Mohrland Farms;defendants-counter-plaintiffs-appellants,a.o. Smith Corporation; A.o. Smith Harvestore Products,counter-defendants-appellees, 902 F.2d 32 (6th Cir. 1990)

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U.S. Court of Appeals for the Sixth Circuit - 902 F.2d 32 (6th Cir. 1990) May 8, 1990

Before RALPH B. GUY, Jr. and RYAN, Circuit Judges, and ENGEL, Senior Circuit Judge.


Appellants Walter Mohr, Barbara Mohr, Greg Mohr and Mohrland Farms, defendants/counter-plaintiffs in the diversity action below, instituted counterclaims against Agristor Leasing, A.O. Smith Corporation and A.O. Smith Harvestore Products, Inc. (AOSHPI). On September 25, 1989, the district court granted AOSHPI's motion to dismiss the counterclaims against it, without prejudice, for improper service of process. The order did not dismiss the counterclaims pending against other counter-defendants. On September 26, 1989, the appellants served a "Second Amended Counter-Claim" against AOSHPI and Smith, and filed a notice of appeal from the September 25, 1989 order.

AOSHPI now moves to dismiss this appeal for lack of appellate jurisdiction on grounds that the order appealed from was neither a final appealable order for purposes of 28 U.S.C. § 1291 nor certified for interlocutory appeal pursuant to Rule 54(b), Fed. R. Civ. P. The appellants have not responded.

A judgment is final for purposes of 28 U.S.C. § 1291 "when it terminates all issues presented in the litigation on the merits and leaves nothing to be done except enforce by execution what has been determined." Donovan v. Hayden, Stone, Inc., 434 F.2d 619, 620 (6th Cir. 1970) (per curiam). 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 the 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); Oak Construction Company v. Huron Cement Company, 475 F.2d 1220 (6th Cir. 1973) (per curiam). Accordingly,

It is ORDERED that the motion to dismiss be granted and this appeal be dismissed for lack of appellate jurisdiction.