791 F. 2d 932 - Robert Dodge v. City of Berkley

This matter is before the Court for consideration of appellees' motion to dismiss the appeal on the grounds that it is an attempt to take an appeal from a non-final order. Appellant has not filed a response to the motion to dismiss.

Appellant's complaint in this action for damages resulting from an assault and battery and violations of 42 U.S.C. Sec. 1983 originally named as defendants appellees Payne, Spaeth and Hodgson as well as the City of Berkley and the Berkley Police Department. By orders entered January 10, 1986, and February 24, 1986, the district court dismissed the complaint as to defendant Berkley Police Department and appellees respectively. Appellant filed this appeal from the latter of those orders.

A review of the record indicates that neither of the district court's orders of dismissal resulted in a final adjudication of appellant's claims against the remaining defendant, City of Berkley. In consequence of the continued pendency of those claims, the specific order that is the subject of this appeal, that of February 24, 1986, cannot be considered a final and appealable order absent the certifications of finality required by Rule 54(b), Federal Rules of Civil Procedure. As that order clearly does not contain those certifications, the order of February 24, 1986, remains a non-appealable interlocutory order under 28 U.S.C. Sec. 1291. Oak Construction Company v. Huron Cement Company, 475 F.2d 1220 (6th Cir. 1973).

Therefore, it is ORDERED that the appeal be and hereby is dismissed.