Johnson v. McDole

Fifth Circuit

Johnson v. McDole

526 F.2d 710, 21 Fed. R. Serv. 2d 402, 1976 U.S. App. LEXIS 13041

Court of Appeals for the Fifth Circuit·Decided February 2, 1976·No. No. 75-3724·Published·Cited by 8 cases

Opinion

PER CURIAM:

Johnson seeks enforcement of a California judgment against McDole. McDole challenges the jurisdiction of the California court. The district court held the California judgment valid, but stayed execution until a counterclaim by McDole against Johnson for breach of a contract factually related to the California judgment could be heard and determined. As far as the record shows, the merits of the counterclaim have not yet been considered.

Although the issue has not been raised by the parties, we conclude that this court is without jurisdiction to entertain this case. The claim of Johnson and the counterclaim of McDole constitute multiple claims within the meaning of Fed.R. Civ.P. 54(b). A decision on one of the claims does not constitute a final appeal-able order unless the district court makes “an express determination that there is no just reason for delay and upon an express direction for the entry of judgment.” Fed.R.Civ.P. 54(b). No such entry or determination has been made by the district court. Hence, the judgment lacks the requisite finality to be appealable within the meaning of 28 U.S.C.A. § 1291. Anderson v. Robinson, 5 Cir. 1974, 494 F.2d 45; Luckett v. Spivy, 5 Cir. 1974, 490 F.2d 87; United States v. Crow, Pope and Land Enterprises, Inc., 5 Cir. 1973, 474 F.2d 200; Coulter v. Sears, Roebuck and Co., 5 Cir. 1969, 411 F.2d 1189; Tompkins Motor Lines v. Georgia Broilers, Inc., 5 Cir. 1958, 260 F.2d 830.

Appeal dismissed.

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PER CURIAM:

Johnson seeks enforcement of a California judgment against McDole. McDole challenges the jurisdiction of the California court. The district court held the California judgment valid, but stayed execution until a counterclaim by McDole against Johnson for breach of a contract factually related to the California judgment could be heard and determined. As far as the record shows, the merits of the counterclaim have not yet been considered.

Although the issue has not been raised by the parties, we conclude that this court is without jurisdiction to entertain this case. The claim of Johnson and the counterclaim of McDole constitute multiple claims within the meaning of Fed.R. Civ.P. 54(b). A decision on one of the claims does not constitute a final appeal-able order unless the district court makes “an express determination that there is no just reason for delay and upon an express direction for the entry of judgment.” Fed.R.Civ.P. 54(b). No such entry or determination has been made by the district court. Hence, the judgment lacks the requisite finality to be appealable within the meaning of 28 U.S.C.A. § 1291. Anderson v. Robinson, 5 Cir. 1974, 494 F.2d 45; Luckett v. Spivy, 5 Cir. 1974, 490 F.2d 87; United States v. Crow, Pope and Land Enterprises, Inc., 5 Cir. 1973, 474 F.2d 200; Coulter v. Sears, Roebuck and Co., 5 Cir. 1969, 411 F.2d 1189; Tompkins Motor Lines v. Georgia Broilers, Inc., 5 Cir. 1958, 260 F.2d 830.