Louisville Trust Co. v. Smith

PER CURIAM. The order of the District Court, from which this appeal was taken, granted plaintiffs’ motion for leave to file an amended reply to defendant’s counterclaim; granted plaintiffs’ motion for summary judgment on defendant’s counterclaim and denied defendant’s motion for leave to file an amended counterclaim. The District Court has not yet made any disposition of plaintiffs’ claim for relief set forth in their complaint which is still pending in that court. Rule 54(b) of the Federal Rules of Civil Procedure, 28 U.S.C. provides the only manner in which the court may direct the entry of a final judgment upon one or more, but less than all claims for relief in an action, namely, upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment. The District Court made no such express determination and direction. Without such determination and direction the action was not terminated as to any of the claims for relief and the order appealed from is subject to revision at any time before the entry of judgment adjudicating all of the claims. The order was not, therefore, a final order, but is interlocutory in nature. New Amsterdam Casualty Co. v. United States, 5 Cir., 272 F.2d 754; Gilbertson v. City of Fairbanks, 9 Cir., 253 F.2d 231, 10 Alaska 458. No appeal may be prosecuted from the order until it has become final. 28 U.S.C. § 1291. The motion to dismiss is granted and the appeal is dismissed for lack of jurisdiction.