James B. Beard, D.O. v. Parkview Hospital, Gilbert S. Bucholz, D.O., G.S. Bucholz, Inc. B.A. Zeiher, President

865 F.2d 256, 1988 U.S. App. LEXIS 17195, 1988 WL 135902

• Court: Court of Appeals for the Sixth Circuit
• Decided: December 19, 1988
• Docket: 88-3859
• Status: Unpublished

Opinion

865 F.2d 256

Unpublished Disposition
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.
James B. BEARD, D.O., Plaintiff-Appellant,
v.
PARKVIEW HOSPITAL, Gilbert S. Bucholz, D.O., G.S. Bucholz,
Inc.; B.A. Zeiher, President, Defendants-Appellees.

No. 88-3859.

United States Court of Appeals, Sixth Circuit.

Dec. 19, 1988.

Before BOYCE MARTIN, Jr., and NATHANIEL R. JONES, Circuit Judges; and JOHN FEIKENS, Senior District Judge.*

ORDER

The plaintiff appeals orders of the district court granting summary judgment to defendants and dismissing this civil action. Plaintiff now seeks remand of this case on the grounds that there is an unresolved claim still pending in the district court, thereby precluding entry of a final order in that court.

Plaintiff filed this action alleging three causes of action: 1) a violation of Sections 1 and 2 of the Sherman Act; 2) a pendant state law claim regarding a violation of certain Ohio statutes pertaining to hospital practice; and 3) a pendant state law claim regarding an accounting between the plaintiff and defendant Bucholz. On April 6, 1987, the district court granted the defendants' motions for summary judgment on plaintiff's second cause of action. Subsequently, the district court granted defendants' motion for summary judgment on plaintiff's first cause of action and dismissed the case on August 25, 1988. Counsel for plaintiff filed a notice of appeal on September 12, 1988.

In the present motion the plaintiff concedes that the district court did not adjudicate his third cause of action, thereby precluding entry of final judgment for purposes of appeal. Plaintiff seeks a remand to the district court so that his third cause of action may be resolved.

In the absence of certification for an interlocutory appeal under Rule 54(b), Federal Rules of Civil Procedure, or 28 U.S.C. Sec. 1292(b), an order disposing of fewer than all parties or claims in action is not a final appealable order for purposes of 28 U.S.C. Sec. 1291. See William B. Tanner Co. v. United States, 575 F.2d 101 (6th Cir.1978); Donovan v. Hayden, Stone, Inc., 434 F.2d 619 (6th Cir.1970).

A notice of appeal filed before such certification does not impart appellate jurisdiction. Kirtland v. J. Ray McDermott & Co., 568 F.2d 1166 (5th Cir.1978). The notice of appeal filed by appellant on September 12, 1988 was premature. Therefore,

It is ORDERED that this appeal is dismissed sua sponte for lack of jurisdiction. Rule 9(b)(1), Rules of the Sixth Circuit. The motion to remand is rendered moot. This order is without prejudice to the parties filing a new notice of appeal after the district court has entered final judgment or entered certification for an interlocutory appeal.

* The Honorable John Feikens, U.S. Senior District Judge for the Eastern District of Michigan, sitting by designation