925 F. 2d 1464 - Naacp Cleveland Branch Naacp v. City of Parma Ohio

Before KENNEDY and ALAN E. NORRIS, Circuit Judges, and MILES, Senior District Judge.*

The defendant appeals an interlocutory order of the district court in this civil rights action. The plaintiffs now move to dismiss the appeal for lack of jurisdiction. The defendant has responded in opposition. The plaintiffs have replied.

The defendant argues that this court has jurisdiction under 28 U.S.C. Sec. 1292(a)(1). Section 1292(a)(1) was intended to carve out only a limited exception to the final judgment rule and the statute is narrowly construed. See Carson v. American Brands, Inc., 450 U.S. 79, 84 (1981). Upon review and consideration, the court concludes that the order appealed from is not appealable under Sec. 1292(a)(1). Orders that in no way touch on the merits of the claim but only relate to pretrial procedures are not interlocutory within the meaning of Sec. 1292(a)(1). Switzerland Cheese Ass'n., Inc. v. E. Horne's Market, Inc., 385 U.S. 23, 25 (1966).

Nor does the district court's order meet the criteria for the collateral order exception to the final judgment rule as 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. Sec. 1291. Gulfstream Aerospace Corp. v. Mayacamas Corp., 485 U.S. 271, 276 (1988).

In the alternative, the defendant asks that its appeal be construed as a petition for a writ of mandamus. Upon review and consideration, the court concludes that mandamus relief is not warranted. See In re: Bendectin Products Liability Litigation, 749 F.2d 300, 304 (6th Cir.1984).

Therefore, it is ORDERED that the plaintiffs' motion to dismiss is granted.