958 F. 2d 371 - Jenkins v. Holloway Sportswear Inc

Before NATHANIEL R. JONES and ALAN E. NORRIS, Circuit Judges, and JOINER, Senior District Judge.*

The defendant appeals various rulings of the district court which grant judgment in favor of two of the plaintiffs in this action under the federal Age Discrimination in Employment Act. The plaintiffs move to dismiss the appeal on grounds that the case has not been fully resolved in the district court. They also move for double costs and attorney fees. The defendants respond in opposition, and the plaintiffs reply.

The district court entered judgment on the jury verdicts on September 24, 1990, but allowed for the filing of post-judgment motions. Thereafter, the defendant moved for remittitur as to two of the plaintiffs, or for a new trial on damages. The district court granted the motion. In an order dated October 22, 1991, the court directed those two plaintiffs to advise within 30 days whether they would accept remittitur with respect to back pay or whether a new trial would be sought. One plaintiff accepted remittitur; the other requested a new trial. Pursuant to that order the district court has scheduled trial in this matter.

In the instant case, it is clear that a final judgment has not yet been entered as to plaintiff Vivian Rairdon who has opted for new trial on damages. Further, there has been no certification of the judgments as to the other plaintiffs under Fed.R.Civ.P. 54(b). In any event, should the district court determine that such certification is appropriate, a new notice of appeal must be filed. Oak Construction Company v. Huron Cement Company, 475 F.2d 1220, 1221 (6th Cir.1973) (per curiam). This court therefore lacks jurisdiction in this appeal.

Plaintiffs seek double costs and attorney fees in this matter. It does not appear that this appeal was filed in bad faith or that a determination of attorney fees is yet appropriate.

It therefore is ORDERED that the motion to dismiss is granted. Further, the request for costs and attorney fees is denied.