Jay H. Shidler, Plaintiff-counter-defendant-appellee, v. Livadas/shidler Investment Corporation, Defendant,andkenneth G. Livadas, Defendant-counter-claimant-appellant.jay H. Shidler, Plaintiff-appellee, v. Kenneth G. Livadas, Defendant-appellant, 24 F.3d 249 (9th Cir. 1994)

Before: KOZINSKI and TROTT, Circuit Judges, and WILLIAMS,^*  District Judge.

MEMORANDUM^** 

Notwithstanding our recent decision in Dannenberg v. Software Toolworks Inc., 16 F.3d 1073 (9th Cir. 1994), we have jurisdiction in this case because here, unlike in Dannenberg, the parties did not manufacture a final judgment. The claims they dismissed were refiled in state court, and so are unlikely to return to federal court.

As to the merits, we affirm for the reasons stated by Judge Real below. ER 1567-73.

As to fees, we dismiss the appeal for lack of jurisdiction. The district court's judgment as to fees is separate from its final decision on the merits, see United States v. RG & B, No. 92-36742, slip. op. 3581, 3586-87 (9th Cir. Apr. 13, 1994), and cannot be treated as a motion for "costs," Metcalf v. Borba, 681 F.2d 1183, 1185-86 (9th Cir. 1982). As no notice of appeal was timely filed regarding fees, we are without jurisdiction. Farley v. Henderson, 883 F.2d 709, 712 (9th Cir. 1989).

AFFIRMED.