929 F. 2d 700 - Bullock v. Keller

E.D.Ky.

APPEAL DISMISSED.

Before MILBURN and BOGGS, Circuit Judges; and GILMORE, District Judge.*

This appeal has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit.

A review of the documents before the court indicates that plaintiff filed a complaint naming two defendants in his civil rights action. The district court dismissed the action by order filed December 4, 1990. However, upon discovery that objections to the magistrate's report and recommendation were filed December 3 but not considered by the court, the district court judge filed an order on December 18, 1990. The December 18, 1990, order amended the December 4, 1990, order by dismissing defendant Keller, reinstating defendant Lexington Fayette Urban County Government, directing that plaintiff be permitted to file an amended complaint within 15 days, and directing that upon filing of the amended complaint or expiration of the 15-day period that the matter be referred to the magistrate. Plaintiff appealed on January 14, 1991, from the December 4, 1990, order.

Although the order of December 4, 1990, disposed of all the parties and issues involved in the action, that order was amended by order filed December 18, 1990, which reinstated one of the two defendants. A decision is deemed final for purposes of appeal if it terminates all issues presented in the litigation on the merits and leaves nothing to be done except to enforce by execution what has been determined. Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 373 (1981). The district court reconsidered the decision appealed in this case and amended it by reinstating one defendant. Therefore, the case is still pending in the district court. No Fed.R.Civ.P. 54(b) certification was entered.

Accordingly, it is ORDERED that the appeal be, and it hereby is, dismissed for lack of jurisdiction. Rule 9(b)(1), Rules of the Sixth Circuit.