Bonita Boggs, et al., Plaintiffs,russell Haddix, Jr.; Robert C. Howard; Doug Salyers;robert E. Smith, Plaintiffs-appellees Cross-appellants, v. Cecil Clair, Individually and in His Official Capacity Asbreathitt County Judge Executive; Breathitt County,kentucky, by and Through Its Fiscal Court (composed of Judgeexecutive Cecil Clair and Magistrates Hubert Hollon, Archturner, J.w. Combs and Herschell Manns); Hubert Hollon, Inhis Official Capacity; Arch Turner, in His Officialcapacity; J.w. Combs, in His Official Capacity; Herschellmanns, in His Official Capacity, Defendants-appellantscross-appellees, 955 F.2d 44 (6th Cir. 1992)Annotate this Case
Feb. 21, 1992
Before BOYCE F. MARTIN, Jr. and MILBURN, Circuit Judges, and CONTIE, Senior Circuit Judge.
Defendants in Case Nos. 91-6231 and 91-6258 appeal the judgment entered in favor of four of the thirty-one plaintiffs in this civil rights action alleging wrongful discharge in retaliation for exercise of First Amendment rights. Appellees cross-appeal to preserve their rights, but contend that the court lacks jurisdiction in these appeals. Appellees now move to dismiss the appeals on the grounds that absent a Rule 54(b) certification by the district court, the judgment is a non-appealable order. Defendants respond by admitting that the judgment is non-final. However, they request that the motion to dismiss be held in abeyance for thirty days in order for them to seek Rule 54(b) certification in the district court.
Absent a proper Rule 54(b) certification, an order disposing of fewer than all of the claims or all the parties is generally non-appealable. Liberty Mutual Insurance Co. v. Wetzel, 424 U.S. 737, 744 (1976); William B. Tanner Co. v. United States, 575 F.2d 101, 102 (6th Cir. 1978) (per curiam). Moreover, a Rule 54(b) certification entered after the filing of a notice of appeal does not impart appellate jurisdiction. Oak Construction Company v. Huron Cement Company, 475 F.2d 1220 (6th Cir. 1973) (per curiam).
We conclude, therefore, that the motion to dismiss should not be held in abeyance. The orders from which defendants appeal are non-final orders and this court lacks jurisdiction in the appeals and the cross-appeal.
It therefore is ORDERED that the motion to dismiss Case Nos. 91-6231 and 91-6258 is granted and that Case No. 91-6362 is sua sponte dismissed for lack of jurisdiction.