Michael C. Thompson v. Nickolas Dereta, Robert Swehla, James Gober and John Does 1 Through 6

709 F.2d 1343, 1983 U.S. App. LEXIS 28706

Opinion

ORDER AND JUDGMENT

In accordance with 10th Cir.R. 9(e) and Fed.R.App.P. 34(a), this appeal came on for consideration on the briefs and record on appeal.

This is an appeal from an order dismissing plaintiffs complaint, but with leave to amend. The record indicates that plaintiffs amended complaint is still pending.

It is well settled that dismissal of a complaint is not an appealable order unless, in a practical sense, the district court, 549 F.Supp. 297, dismisses the action as well. Petty v. Manpower, Inc., 591 F.2d 615 (10th Cir.1979). In this case, we conclude that the appeal is premature and must be dismissed. There is no indication that the plaintiff will be precluded from taking a proper appeal, if necessary, after the district court enters a final dispositive order. See 10th Cir.R. 17(b).

The appeal is DISMISSED.

The mandate shall issue forthwith.