820 F2d 1219 McDaniel v. Dorchester County Jail

820 F.2d 1219
Unpublished Disposition

Alfred E. MCDANIEL, Plaintiff-Appellant,
DORCHESTER COUNTY JAIL; Sheriff McKelvey, Defendant-Appellee.

No. 87-7515.

United States Court of Appeals, Fourth Circuit.

Submitted March 27, 1987.
Decided June 8, 1987.

NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.

Before RUSSELL, PHILLIPS and CHAPMAN, Circuit Judges.

Alfred E. McDaniel, appellant pro se.

Steven Mark Levine, Wilson, Elser, Moskowitz, Edelman & Dicker, for appellees.


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Alfred E. McDaniel seeks to appeal the January 6, 1987, district court order denying his motion for default judgment for failure to answer the complaint within the time period set forth in Fed.R.Civ.P. 12(a). Because we lack jurisdiction to review his claims, we dismiss the appeal.


Under 28 U.S.C. Sec. 1291, this Court has jurisdiction to review final decisions of the district court. A final judgment disposes of all issues in dispute as to all parties. "Federal appellate jurisdiction generally depends on the existence of a decision by the District Court that 'ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.' " Coopers & Lybrand v. Livesay, 437 U.S. 463, 467 (1978) (quoting Catlin v. United States, 324 U.S. 229, 233 (1945)). The court's January 6 order has not ended the litigation on the merits and thus is not a "final" one as that term is used in Sec. 1291.


The district court did not direct the entry of final judgment, see Fed.R.Civ.P. 54(b), or certify the order for an interlocutory appeal under 28 U.S.C. Sec. 1292(b). The order is not appealable under the exceptions of 28 U.S.C. Sec. 1292(a). Nor should the order be treated as final under Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541 (1949).


As the materials before this Court indicate that oral argument would not significantly aid the decisional process, we dispense with oral argument. The appeal is dismissed for lack of jurisdiction. Appellant's motion for a transcript at government expense is denied.