Hancock v. Dodson

918 F.2d 957, 1990 U.S. App. LEXIS 24843, 1990 WL 180922

• Court: Court of Appeals for the Sixth Circuit
• Decided: November 20, 1990
• Docket: 90-2051
• Status: Unpublished

Opinion

918 F.2d 957

Unpublished Disposition
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.
Joan P. HANCOCK, Individually and as Guardian and
Conservator of the Estate of Danny L. Hancock, a
legally incapacitated person, Deborah
Gerber, Plaintiffs-Appellants,
v.
Barry DODSON, et al., Defendants,
Art Schara, City of Lake Orion, a municipal corporation,
Defendants-Appellees
Blue Cross and Blue Shield of Michigan, Claimant.

No. 90-2051.

United States Court of Appeals, Sixth Circuit.

Nov. 20, 1990.

Before KEITH and BOGGS, Circuit Judges, and CONTIE, Senior Circuit Judge.

ORDER

This matter is before the court for consideration of the plaintiffs' response to this court's order of October 16, 1990 directing the plaintiffs to show cause why their appeal should not be dismissed for lack of jurisdiction. On August 17, 1990 the district court entered an order granting summary judgment for defendants Art Schara and the City of Lake Orion in this civil rights action. Plaintiffs filed their notice of appeal from the August 17 judgment on September 10, 1990. Plaintiffs' claims against the remaining defendants are still pending in the district court.

The October 16 show cause order was premised on the lack of certification for an interlocutory appeal pursuant to Fed.R.Civ.P. 54(b) or 28 U.S.C. Sec. 1292(b). The plaintiffs have responded by submitting a copy of a petition which the plaintiffs filed in the district court asking that the court's judgment be certified for immediate appeal. Plaintiffs ask that their appeal not be dismissed pending the district court's ruling on the plaintiffs' petition.

Certification under Rule 54(b) in the district court after the notice of appeal has been filed does not confer jurisdiction in this court. Haskell v. Washington Township, 891 F.2d 132, 133 (6th Cir.1989) (per curiam); Oak Construction Company v. Huron Cement Company, 475 F.2d 1220 (6th Cir.1973) (per curiam). Moreover, the district court must make a valid certification to give this court jurisdiction. Knafel v. Pepsi Cola Bottlers of Akron, Inc., 850 F.2d 1155 (6th Cir.1988).

It is therefore ORDERED that the plaintiffs' appeal is dismissed without prejudice to their right to perfect a timely appeal in the event of proper Rule 54(b) certification by the district court. Rule 9(b), Local Rules of the Sixth Circuit.