Betty Lynn Horrar v. South Central Bell Telephone Company , 803 F.2d 720 ( 1986 )

803 F.2d 720

Unpublished Disposition
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.
BETTY LYNN HORRAR, Plaintiff-Appellant
v.
SOUTH CENTRAL BELL TELEPHONE COMPANY, Defendant-Appellee.

No. 86-5495.

United States Court of Appeals, Sixth Circuit.

Sept. 26, 1986.

1

BEFORE: KEITH, MERRITT and NORRIS, Circuit Judges

ORDER

2

This appeal was taken from an order of the district court which dismissed appellant's claims below for compensatory and punitive damages and denied appellant's demand for a jury trial, but which left intact appellant's claims for equitable relief. Appellee now moves this Court to dismiss the appeal on the ground that the district court's order is not final and appealable. Appellant has responded in opposition to the motion and appellee thereafter filed a reply memorandum.

3

A decision is final and appealable, giving this Court jurisdiction under 28 U.S.C. Sec. 1291, when it terminates all issues presented in the litigation on the merits. Donovan v. Hayden, Stone, Inc., 434 F.2d 619 (6th Cir. 1970) (per curiam). The final disposition of one claim of a multiple claim complaint is not final for purposes of appeal absent a certification from the district court for direct appeal pursuant to Rule 54(b), Fed. R. Civ. P. Ohio-Sealy Mattress Manufacturing Co. v. Duncan, 714 F.2d 740, 743 (7th Cir. 1983), cert. denied, 464 U.S. 1044 (1984). Likewise, the district court's denial of appellant's demand for trial by jury is not final and appealable. Cochran v. Birkel, 651 F.2d 1219 (6th Cir. 1981), cert. denied, 454 U.S. 1152 (1982).

4

Appellant asserts that the district court's order comes within the "collateral order" exception to the final judgment rule. Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541 (1949). To come within this exception, "the order must (1) conclusively determine a disputed question; (2) resolve an important issue separate from the merits; and (3) be effectively unreviewable following a trial on the merits." Rosenstein v. Merrell Dow Pharmaceuticals, Inc., 769 F.2d 352 (6th Cir. 1985). The order of the district court is reviewable upon subsequent appeal. This Court is therefore without jurisdiction to entertain the merits of this appeal.

5

Accordingly, it is ORDERED that the appellee's motion be granted and the appeal be and it is hereby dismissed for lack of jurisdiction.