Holland v. Bone

833 F.2d 1005, 1987 U.S. App. LEXIS 15243, 1987 WL 39013

• Court: Court of Appeals for the Third Circuit
• Decided: November 19, 1987
• Docket: 87-1166
• Status: Unpublished

Opinion

833 F.2d 1005
Unpublished Disposition

NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.
Margaret HOLLAND, Donna Ramsey, Carolyn Webster, Garnette
Alexander, Plaintiffs-Appellees,
v.
Dewey BONE, individually and as Principal of Sylvia
Elementary School, William Baker, individually and as County
Superintendent of Schools of Raleigh County, the Board of
Education of the County of Raleigh, a statutory corporation,
Defendants-Appellants,
v.
CONTINENTAL CASUALTY COMPANY, a foreign corporation, Third
Party Defendant.

No. 87-1166.

United States Court of Appeals, Fourth Circuit.

Submitted: Oct. 16, 1987.
Decided: Nov. 19, 1987.

Bruce William Berger and Richard D. Jones, Kay, Casto & Chaney, David Edward Schumacher, Shuman, Annand & Poe, for appellants.

Marvin Wayne Masters, for appellees.

Before JAMES DICKSON PHILLIPS, SPROUSE, and ERVIN, Circuit Judges.

PER CURIAM:

The defendants, Dewey Bone, principal of Sylvia Elementary School, William Baker, County Superintendent of Schools of Raleigh County, and The Board of Education of the County of Raleigh appeal from the order of the district court denying their motion for dismissal or summary judgment based on res judicata grounds in this 42 U.S.C. Secs. 1981, 1983, 1985(3) and 1986 action.

The district court's order is not a "final decision" under 28 U.S.C. Sec. 1291. It does not dispose of all the issues so that nothing remains to be determined. Coopers & Lybrand v. Livesay, 437 U.S. 463, 467 (1978). The order, moreover, does not fall within the narrow exception to Sec. 1291 articulated in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 545-47 (1949). The defendants' assertion of res judicata is nothing more than an assertion of an affirmative defense whose denial is not appealable. Freeman v. Kohl & Vick Machine Works, 673 F.2d 196, 200 (7th Cir.1982). The defendants have made no showing that res judicata gives them any "claim of right" to an immunity from suit. Cf. Mitchell v. Forsyth, 472 U.S. 511, 526 (1985).

Accordingly, we dismiss the appeal for lack of jurisdiction. We dispense with oral argument because the dispositive issues recently have been decided authoritatively. The Appellants' motion to vacate is denied.

DISMISSED.