919 F2d 141 Meadowdale Foods Incorporated v. First Fiscal Fund Corporation
919 F.2d 141
MEADOWDALE FOODS, INCORPORATED, a Michigan Corporation,
Plaintiff Counter Defendant-Appellee,
FIRST FISCAL FUND CORPORATION, a Delaware Corporation,
Defendant Counter Plaintiff-Appellant.
United States Court of Appeals, Sixth Circuit.
Nov. 28, 1990.
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.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 and MILBURN, Circuit Judges, and CELEBREZZE, Senior Circuit Judge.
This matter is before the court for consideration of the defendant's response to this court's order of October 19, 1990 directing the defendant to show cause why its appeal should not be dismissed for lack of jurisdiction. On August 30, 1990, the district court entered an order granting partial summary judgment for the plaintiff and dismissing the defendant's counterclaim in this declaratory judgment action. The defendant filed its notice of appeal from the district court's August 30 order on September 27, 1990. Damages have yet to be determined by the district court.
The October 19 show cause order was premised on the lack of certification for an interlocutory appeal pursuant to Fed.R.Civ.P. 54(b) or 28 U.S.C. Sec. 1292(b). The defendant has responded by submitting a copy of a petition which the defendant filed in the district court asking that the court's judgment be certified for immediate appeal. The defendant asks that its appeal be held in abeyance pending the district court's ruling on the defendant's petition.
"Certification under Rule 54(b) in the district court after the notice of appeal has been filed does not confer jurisdiction in this court." Haskell v. Washington Township, 891 F.2d 132, 133 (6th Cir.1989) (per curiam); Oak Construction Co. v. Huron Cement Co., 475 F.2d 1220 (6th Cir.1973) (per curiam). Moreover, the district court must make a valid certification to give this court jurisdiction. Knafel v. Pepsi Cola Bottlers of Akron, Inc., 850 F.2d 1155, 1159-60 (6th Cir.1988).
It is therefore ORDERED that the defendant's appeal is dismissed without prejudice to its right to perfect a timely appeal in the event of proper Rule 54(b) certification by the district court. Rule 9(b), Local Rules of the Sixth Circuit.