829 F.2d 1126
Phil STREET and Clyde Street, Plaintiffs-Appellants,
v.
J.C. BRADFORD AND COMPANY, INC.; J.C. Bradford and Company;
Ken Graybeal; Ray Richardson; Robert McCracken;
and Douglas O. Kitchens, Defendants-Appellees.
No. 87-5465
United States Court of Appeals, Sixth Circuit.
September 24, 1987.
Unpublished Disposition
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.
ORDER
Before CORNELIA G. KENNEDY and KRUPANSKY, Circuit Judges, and BAILEY BROWN, Senior Circuit Judge.
The plaintiffs appeal from two orders granting the defendants' motion for summary judgment in this securities/commodities fraud action. The defendants now move to dismiss on grounds that there is no final decision for purposes of 28 U.S.C. Sec. 1291. The plaintiffs have responded in opposition to the motion.
On September 19, 1986 and April 2, 1987, the district court entered orders granting the defendants' motions for summary judgment and dismissing the plaintiffs' claims, but did not resolve a pending counterclaim. Neither order contained certification under Rule 54(b), Federal Rules of Civil Procedure, that no just reason for delay exists and expressly directing entry of judgment. The plaintiffs filed a notice of appeal from these orders on April 28, 1987, which was docketed as case number 87-5465. By order dated May 1, 1987, the district court entered judgment for the defendants on their counterclaim. On June 1, 1987, the plaintiffs filed a 'supplement' to their earlier notice of appeal, thereby including the judgment on the counterclaim in its appeal. This second appeal was docketed as 87-5673, but was consolidated with the first for briefing and submission.
Absent certification for an interlocutory appeal under 28 U.S.C. Sec. 1292(b) or Rule 54(b), Federal Rules of Civil Procedure, an order disposing of fewer than all parties or claims in an action is nonappealable. William B. Tanner Co. v. United States, 575 F.2d 101 (6th Cir. 1978) (per curiam). The district court's orders of September 19, 1986 and April 2, 1987 were neither final nor certified for interlocutory review. Therefore,
It is ORDERED that the motion to dismiss case number 87-5465 is granted. This order shall have no effect on case number 87-5673.