771 F.2d 915 (5th Cir. 1985), 84-1773, Metallurgical Industries, Inc. v. Fourtek, Inc.

Docket Nº:84-1773.
Citation:771 F.2d 915
Party Name:METALLURGICAL INDUSTRIES, INC., Plaintiff-Appellant, v. FOURTEK, INC., a Corporation, et al., Defendants, and Irvin Bielefeldt, et al., Defendants-Appellees.
Case Date:September 23, 1985
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 915

771 F.2d 915 (5th Cir. 1985)

METALLURGICAL INDUSTRIES, INC., Plaintiff-Appellant,

v.

FOURTEK, INC., a Corporation, et al., Defendants,

and

Irvin Bielefeldt, et al., Defendants-Appellees.

No. 84-1773.

United States Court of Appeals, Fifth Circuit

September 23, 1985

Hubbard, Thurman, Turner & Tucker, John Feather, Dallas, Tex., Carella, Byrne, Bain & Gilfillan, John N. Bain, Richard E. Kummer, Roseland, N.J., Geary, Stahl & Spencer, Gerald P. Urbach, Dallas, Tex., for plaintiff-appellant.

Christie, Parker & Hale, Richard D. Seibel, E. Roderick Cline, Pasadena, Cal., Richards, Harris & Medlock, V. Bryan Medlock, Jr., Martin Korn, Dallas, Tex., for Smith Intern.

Crutsinger & Booth, John Booth, Monty L. Ross, Stinson, Mag & Fizzell, William Frank Carroll, Dallas, Tex., for Bielefeldt.

Vernon, McKinley & Lybrand, James L. Schutza, Dallas, Tex., for Montesino, Boehm & Sarvadi.

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

Before REAVLEY, POLITZ and TATE, Circuit Judges.

PER CURIAM:

When an appellant notices appeal from an interlocutory order and subsequently obtains a certificate pursuant to Fed.R.Civ.P.

Page 916

54(b) for appeal of the prior order, must a new notice of appeal be filed after entry of the Rule 54(b) order? Our answer: a new notice is not prerequisite to our jurisdiction.

On May 7, 1985, 762 F.2d 1002, this panel dismissed the appeal of Metallurgical Industries, Inc. on the grounds that the order from which the appeal was taken did not dispose of the claim against one of the defendants. We suggested that appellant accept appellees' offer of a joint motion to the district court to certify finality pursuant to Rule 54(b); and we advised that, if the Rule 54(b) certificate were obtained, the appeal so supplemented could proceed. See General Motors Corp. v. Dade Bonded Warehouse, Inc., 498 F.2d 327, 328 (5th Cir.1974).

The district court did on June 6 make the proper Rule 54(b) certificate by an order that granted no relief except to certify the finality of the June 28, 1984 order from which the attempted appeal originally was taken. Metallurgical Industries, Inc. filed the certificate and moved to reinstate the appeal. Appellees now oppose the exercise of our jurisdiction on the ground that the June 6 order is the first final order of the district court...

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