Schoonover v. Black Bros. Co.

914 F.2d 258, 1990 U.S. App. LEXIS 23991, 1990 WL 139284

• Court: Court of Appeals for the Sixth Circuit
• Decided: September 25, 1990
• Docket: 90-5627
• Status: Unpublished

Opinion

914 F.2d 258

Unpublished Disposition
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.
Deborah A. SCHOONOVER, widow of Danny Schoonover, Deceased
for use and benefit of herself & minor daughter, Amy
Michele; Gilbert Kail, and wife, Terry D. Kail; Firestone
Tire & Rubber Company, Plaintiffs-Appellees,
v.
THE BLACK BROTHERS COMPANY; Emerson Electric Company;
Mobil Oil Corporation, Defendants-Appellants.

No. 90-5627.

United States Court of Appeals, Sixth Circuit.

Sept. 25, 1990.

Before KENNEDY and RALPH B. GUY, Jr., Circuit Judges; and BAILEY BROWN, Senior Circuit Judge.

ORDER

Defendants appeal from an order dismissing their pro tanto claim against plaintiff, Firestone Tire and Rubber Company, in this wrongful death and personal injury case. Plaintiffs, Firestone Tire and Rubber Company, Deborah A. Schoonover, Gilbert Kail and Terry D. Kail have filed motions to dismiss the appeal on the grounds that the district court's order is not final. The defendants respond in opposition, and Firestone has replied.

Absent certification for interlocutory appeal under 28 U.S.C. 1292(b) or Rule 54(b), Fed.R.Civ.P., an order disposing of fewer than all parties or claims in an action is not appealable. William B. Tanner Co. v. United States, 575 F.2d 101, 102 (6th Cir.1978) (per curiam). This court may not take jurisdiction under 1292(b) in the absence of certification by the district court. United States v. Hallahan, 768 F.2d 754 (6th Cir.1985), cert. denied, 475 U.S. 1021 (1986).

Defendants maintain that the district court's order is nevertheless appealable under the collateral order exception set forth in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541 (1949). If the order at issue fails to satisfy any one of Cohen's requirements, it is not appealable under the collateral order exception to 28 U.S.C. 1291. Gulfstream Aerospace Corp. v. Mayacamas Corp., 485 U.S. 271, 276 (1988). Upon review and consideration of the facts presented in this case, we conclude that the order appealed from does not meet the criteria set forth in Cohen.

It is therefore ORDERED that the motions to dismiss are granted.