Opinion · Court of Appeals for the Fifth Circuit

Bailey v. McCann

Bailey v. McCann, 539 F.2d 501 (5th Cir. 1976)

Type: Opinion
Court: Court of Appeals for the Fifth Circuit
Jurisdiction: Federal
Date: 1976-09-27
Topic: litigation

How later courts describe this case

a dismissal without prejudice in which the court reserves the right to reopen upon motion of a party is not a final judgment

Citator

UpLaw has not yet analyzed Bailey v. McCann. The absence of a flag is not a finding that it is good law.

Cited by: 8 opinions

BAILEY v. McCANN,539 F.2d 501(5th Cir. 1976)

IKE BAILEY, PLAINTIFF-APPELLANT, v. J. PATRICK McCANN, DIRECTOR OF THE

PARI-MUTUEL WAGERING DIVISION OF THE DEPARTMENT OF BUSINESS REGULATION, OF

THE STATE OF FLORIDA, DEFENDANT, THEODORE J. ZORNOW, PRESIDENT OF THE UNITED

STATES TROTTING ASSOCIATION, DEFENDANT-APPELLEE.

No. 76-1747.

Summary Calendar.^fn*

United States Court of Appeals, Fifth Circuit.

September 27, 1976.

Page 502

W. Paul Thompson, Clayton J.M. Adkinson, DeFuniak Springs, Fla., for plaintiff-appellant.

Harry Lewis Michaels, Tallahassee, Fla., for defendant-appellee.

Charles F. Tunnicliff, Tallahassee, Fla., for J. Patrick McCann.

Appeal from the United States District Court for the Northern District of Florida.

Before AINSWORTH, CLARK and RONEY, Circuit Judges.

[1] ORDER:

[2] The appeal is dismissed for lack of the requisite certification required under Rule54(b), Fed.R.Civ.P.

[3] The entry of the summary judgment in favor of one of the defendants, but not both, is a judgment which requires a certification under Rule54(b), Fed.R.Civ.P. Without such a certification, this Court does not have jurisdiction of this appeal.B. B. Adams General Contractors, Inc. v. Department ofHousing and Urban Development,501 F.2d 176(5th Cir. 1974);General Motors Corp. v. Dade Bonded Warehouse, Inc.,498 F.2d 327(5th Cir. 1974);Anderson v. Robinson,494 F.2d 45(5th Cir. 1974);Foret v. McDermott,484 F.2d 992(5th Cir. 1973).

[4] Counsel provided us an appendix with only the order granting the motion for summary judgment, not the judgment itself. We note the docket sheet in the following entry refers to an "Order that this case be dismissed with prejudice and without costs but the court reserves the right to reopen the litigation upon motion of a party." The wording of this entry negates any thought that the court determined the order to be final.

In the absence of such determination and direction, any order or other form of decision, however designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties, and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.

[5] Rule54(b), Fed.R.Civ.P.

Rule 18, 5 Cir.,Isbell Enterprises, Inc. v. CitizensCasualty Company of New York et al.,5 Cir., 1970,431 F.2d 409, Part I. ↩