Kirchgessner v. United States

872 F.2d 1026 Unpublished Disposition NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit. Janice KIRCHGESSNER, Personal Representative of the Estate of John Kirchgessner, Deceased, Plaintiff, v. UNITED STATES of America, Defendant and Third-party Plaintiff-Appellee. v. TRADEWINDS AVIATION, INC., Third-party Defendant-Appellant, Patrick Gorrie, Third-party Defendant. No. 88-2178. United States Court of Appeals, Sixth Circuit. April 24, 1989. Before WELLFORD and RALPH B. GUY, Jr., Circuit Judges, and JOHN W. PECK, Senior Circuit Judge. ORDER [1] Third-party defendant-appellant, Tradewinds Aviation, Inc., appeals from an order dismissing its claim for contribution against the United States in this wrongful death action brought under the Federal Tort Claims Act. The defendant-appellee, United States, now moves to dismiss on the grounds that the appeal is premature. The appellant opposes the motion. [2] The plaintiff brought suit against the United States for the death of her husband in an airplane accident. The United States was permitted to bring in third-party defendants Tradewinds and Patrick Gorrie. On September 16, 1988, the district court dismissed the third-party defendants' motion for contribution and indemnity against the defendant, United States. Third-party defendant Tradewinds appealed from that order on November 14, 1988. The district court entered an order determining negligence on February 8, 1989. A bench trial on the issue of damages is scheduled for May 16, 1989. [3] This Court does not have jurisdiction in this appeal. In the absence of certification for an interlocutory appeal under Fed.R.Civ.P. 54(b), or 28 U.S.C. Sec. 1292(b), an order disposing of fewer than all parties or claims in an action is not a final, appealable order for purposes of 28 U.S.C. Sec. 1291. See William B. Tanner, 575 F.2d 101 (6th Cir.1978); Donovan v. Hayden Stone, Inc., 434 F.2d 619 (6th Cir.1970). Here, the order being appealed is not final for purposes of 28 U.S.C. Sec. 1291, nor is it certified for an interlocutory appeal. [4] It is therefore ORDERED that the motion to dismiss is granted. This order is without prejudice to the parties filing a new notice of appeal after the district court has entered final judgment.