930 F2d 918 Fred Sanders Inc Alix v. Sanders Kwd J a

930 F.2d 918

In re FRED SANDERS, INC.
Jay ALIX, Trustee, Plaintiff,
v.
John SANDERS, KWD, Inc., Defendants,
John Sanders, Filipp J. Kreissl, Third Parties-Appellants,
Heller Financial, Inc., A Delaware Corporation, Third Party-Appellee.

No. 90-2359.

United States Court of Appeals, Sixth Circuit.

April 12, 1991.

Unpublished Disposition
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.

Before KENNEDY, NATHANIEL R. JONES and DAVID A. NELSON, Circuit Judges.

ORDER


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1

This matter is before the court for consideration of the third-party plaintiffs' response to this court's January 30, 1991 order directing the third-party plaintiffs to show cause why their appeal should not be dismissed for lack of jurisdiction.

2

Absent certification for interlocutory appeal under 28 U.S.C. 1292(b) or Rule 54(b), Fed.R.Civ.P., an order disposing of fewer than all parties or claims in an action is not appealable. William B. Tanner Co. v. United States, 575 F.2d 101, 102 (6th Cir.1978) (per curiam). An order dismissing a third-party complaint is not a final order or appealable decision unless the district court has made the determination required by Rule 54(b). Woodby v. Chesapeake and Ohio Railway Co., 345 F.2d 668, 670 (6th Cir.1965).

3

As an alternative to dismissal, the third-party plaintiffs ask that this matter be continued in order to permit them to seek Rule 54(b) certification in the district court. Passing the question of whether we have authority to follow such a course, we see no compelling reason to continue the matter at this early stage of the appeal.

4

It is therefore ORDERED that the third-party plaintiffs' appeal is dismissed without prejudice to their right to perfect a timely appeal in the event of proper Rule 54(b) certification by the district court. Rule 9(b)(1), Local Rules of the Sixth Circuit.