Bailey v. McCann, 76-1747

Decision Date27 September 1976
Docket NumberNo. 76-1747,76-1747
Citation539 F.2d 501
PartiesIke 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. Summary Calendar. *
CourtU.S. Court of Appeals — Fifth Circuit

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.

ORDER:

The appeal is dismissed for lack of the requisite certification required under Rule 54(b), Fed.R.Civ.P.

The entry of the summary judgment in favor of one of the defendants, but not both, is a judgment which requires a certification under Rule 54(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 of Housing 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).

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.

Rule 54(b), Fed.R.Civ.P.

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5 cases
  • Huckeby v. Frozen Food Exp., 75-3633
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • 11 Julio 1977
    ...Practice P 54.28(2), pp. 369 & 373 (2d ed. 1976); see e.g., Hardin v. M/V Ben Candies, 549 F.2d 395 (5th Cir. 1977); Bailey v. McCann, 539 F.2d 501 (5th Cir. 1976), appeal after remand, 550 F.2d 1016 (5th Cir. 1977) (case remanded for certification); B. B. Adams General Contractors, Inc. v.......
  • Green v. Brantley, 89-8150
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • 8 Marzo 1990
    ...court's determination under Fed.R.Civ.P. 54(b) that there is "no just reason for delay" and the entry of final judgment. Bailey v. McCann, 539 F.2d 501 (5th Cir.1976); M. Tigar, supra, at Sec. 2.15. Notwithstanding the importance of finality, however, the Court has recognized through the co......
  • Aaro, Inc. v. Daewoo Intern. (America) Corp., 84-8584
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • 4 Marzo 1985
    ...order was not immediately appealable. See Gould v. Control Laser Corp., 650 F.2d 617, 619-20 (5th Cir. Unit B 1981); 4 Bailey v. McCann, 539 F.2d 501, 502 (5th Cir.1976), on reh'g, 550 F.2d 1016 (1977); 5 10 C. Wright, A. Miller & M. Kane, Federal Practice and Procedure Sec. 2715, at 626-27......
  • Fredricks v. Foltz, 48090
    • United States
    • United States State Supreme Court of Kansas
    • 11 Diciembre 1976
    ...711 (2d Ed. 1976); Sanchez v. Breed, 464 F.2d 448 (9th Cir. 1972); Foret v. McDermott, 484 F.2d 992 (5th Cir. 1973); and Bailey v. McCann, 539 F.2d 501 (5th Cir. 1976).) An express direction for the entry of judgment as to one of several defendants, without an express determination that the......
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