biltmore-development-co-a-michigan-limited-co-partnership-v-city-of , 841 F.2d 1125 ( 1988 )

841 F.2d 1125

Unpublished Disposition
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.
BILTMORE DEVELOPMENT CO., a Michigan Limited co-partnership,
Plaintiff-Appellee,
v.
CITY OF TROY, A Michigan Home Rule City, Defendant-Appellant,
Board of Zoning Appeals of the City of Troy, a Michigan
statutory quasi-judicial body, Defendant-Appellant.

No. 88-1024.

United States Court of Appeals, Sixth Circuit.

March 7, 1988.

Before CORNELIA G. KENNEDY and RYAN, Circuit Judges, and BAILEY BROWN, Senior Circuit Judge.

ORDER

1

Defendants appeal two orders of the district court in this action brought under 42 U.S.C. Sec. 1983. The plaintiff now moves for dismissal of the appeal on grounds the judgment appealed from was not final for purposes of 28 U.S.C. Sec. 1291. The defendant has filed no response.

2

The record reflects that the district court entered two orders on December 17, 1987. The first order granted partial summary judgment in favor of the plaintiff regarding its claim of a procedural due process violation. The second order denied the defendant's motion to dismiss the action pursuant to Rule 12(b)(6), Fed.R.Civ.P. Neither the granting of summary judgment nor the denial of the motion to dismiss are final orders subject to appellate review. See, McSurely v. McClellan, 697 F.2d 309 (D.C.Cir.1982) (per curiam), cert. denied 106 S.Ct. 525 (1985); Ardoin v. J. Ray McDermott & Co., 641 F.2d 277 (5th Cir.1981).

3

Absent certification for an interlocutory appeal under 28 U.S.C. Sec. 1292(b) or Rule 54(b), Federal Rules of Civil Procedure, an order disposing of fewer than all the parties or claims in an action is nonappealable. William B. Tanner Co. v. United States, 575 F.2d 101 (6th Cir.1978) (per curiam ); Oak Construction Co. v. Huron Cement Co., 475 F.2d 1220 (6th Cir.1973) (per curiam ). Accordingly,

4

It is ORDERED that the motion to dismiss is granted.