Willie Anthony Daye, Plaintiff-appellant, v. Orthopaedic Associates of Virginia, Limited, Defendant-appellee,andjoseph Forestiere, M.d., Ltd., Defendant, 924 F.2d 1051 (4th Cir. 1991)

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US Court of Appeals for the Fourth Circuit - 924 F.2d 1051 (4th Cir. 1991)

Submitted Nov. 20, 1990. Decided Jan. 30, 1991. As Amended Feb. 12, 1991

Appeal from the United States District Court for the Eastern District of Virginia, at Norfolk. J. Calvitt Clarke, Jr., District Judge. (CA-90-1518-N)

Willie Anthony Daye, appellant pro se.

Michael Eugene Ornoff, Rilee, Cantor & Russell, Norfolk, Va., Robert William Hardy, Knight, Dudley, Dezern & Clarke, Norfolk, Va., for appellee.

E.D. Va.


Before K.K. HALL, SPROUSE and CHAPMAN, Circuit Judges.


Willie Anthony Daye appeals the district court's October 11, 1990, order referring his case to a magistrate judge, in accordance with 28 U.S.C. § 636(b) (1) (B). We grant appellee's motion to dismiss and dismiss the appeal for lack of jurisdiction.* 

Under 28 U.S.C. § 1291 this Court has jurisdiction over appeals from final orders. A final order is one which disposes of all issues in dispute as to all parties. It "ends the litigation on the merits and leaves nothing for the court to do but execute the judgment." Catlin v. United States, 324 U.S. 229, 233 (1945).

As the order appealed from is not a final order, it is not appealable under 28 U.S.C. § 1291. The district court has not directed entry of final judgment as to particular claims or parties under Fed. R. Civ. P. 54(b), nor is the order appealable under the provisions of 28 U.S.C. § 1292. Finally, the order is not appealable as a collateral order under Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541 (1949).

Finding no basis for appellate jurisdiction, we dismiss the appeal as interlocutory. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the Court and argument would not aid the decisional process.



We deny appellee's motion to dismiss for failure to prosecute