Davila v. Arlasky ( 1995 )

47 F.3d 1182

NOTICE: Federal Circuit Local Rule 47.6(b) states that opinions and orders which are designated as not citable as precedent shall not be employed or cited as precedent. This does not preclude assertion of issues of claim preclusion, issue preclusion, judicial estoppel, law of the case or the like based on a decision of the Court rendered in a nonprecedential opinion or order.
Aureo Rivera DAVILA and Aureo E. Rivera, Plaintiffs,
v.
David F. ARLASKY and John L. Mulkerin, Defendants,
INTERNATIONAL INSURANCE COMPANY, United States Fire
Insurance Company, the North River Insurance Company, and
Sentry Insurance as assumptive reinsurer of Great Southwest
Fire Insurance Company, Plaintiffs-Appellees,
v.
David F. ARLASKY, Defendant-Appellee,
v.
Aureo Rivera DAVILA and Aureo E. Rivera, Defendants-Appellants.

No. 94-1502.

United States Court of Appeals, Federal Circuit.

Jan. 13, 1995.

N.D.Ill., 857 F.Supp. 1258.

DISMISSED.

Before RADER, Circuit Judge, BENNETT, Senior Circuit Judge, and BRYSON, Circuit Judge.

ON MOTION

ORDER

1

We treat Aureo Rivera Davila and Aureo E. Rivera's (Rivera) response to the court's December 1, 1994 order as a motion for voluntary dismissal. International Insurance Co. et al. (International Insurance) oppose dismissal of Rivera's appeal.

2

Absent extraordinary reasons, a party's wish to voluntarily dismiss its appeal will be granted. Here, the parties dispute whether Rivera's appeal was proper as one "final except for an accounting" pursuant to 28 U.S.C. Sec. 1292(c)(2). However, that issue need not be reached because a party may, but need not, appeal such an interlocutory order. See Brigham Pump Co. v. Edwards, 118 F.2d 338, 339 (9th Cir. 1941) (party may appeal or may wait until after final judgment and seek review of any adverse interlocutory rulings then). Thus, Rivera may, without prejudice, withdraw its present appeal.

3

We have considered International Insurance's argument that the order is appealable under the Cohen doctrine and find it to be without merit.

4

Upon consideration thereof,

IT IS ORDERED THAT:

5

(1) The motion for voluntary dismissal is granted.

6

(2) All sides shall bear their own costs.