Brooks v. Owensby

10 F.3d 806

NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.
M. G. BROOKS, Jr.; Harold Causby; Sam H. Decker; Ned M.
Fowler; Athos Rostan, Jr., Executor of the Estate of Athos
Rostan, Sr., deceased; Jane R. McBryde, Executor of the
Estate of Athos Rostan, Sr., deceased; John H. Shell; W.
Alex Willis, Plaintiffs-Appellees,
v.
Ernest Earl OWENSBY; Earl Owensby Corporation, d/b/a E. O.
Corp.; Earl Owensby Studios, Inc., a North Carolina
Corporation; Earl Owensby Studios, Inc., a Utah Corporation,
Defendants-Appellants.

No. 92-1602.

United States Court of Appeals,
Fourth Circuit.

Submitted: September 29, 1993.
Decided: November 23, 1993.

Appeal from the United States District Court for the Western District of North Carolina, at Charlotte.

Ernest Earl Owensby, Appellant Pro Se.

A. Ward McKeithen, Melissa Lamb Saunders, ROBINSON, BRADSHAW & HINSON, P.A., for Appellees.

W.D.N.C.

DISMISSED.

Before HAMILTON and MURNAGHAN, Circuit Judges, and BUTZNER, Senior Circuit Judge.

PER CURIAM:

OPINION

1

Appellants appeal from the district court's order granting Appellees' motions for entry of judgment, or in the alternative, granting a new trial on certain issues. We dismiss the appeal for lack of jurisdiction because the order is not appealable. This Court may exercise jurisdiction only over final orders, 28 U.S.C. Sec. 1291 (1988), and certain interlocutory and collateral orders, 28 U.S.C.Sec. 1292 (1988); Fed. R. Civ. P. 54(b); Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541 (1949). We find that the order here appealed from falls within none of the above categories of appealable orders.

2

We find that the district court improperly certified this appeal pursuant to Fed. R. Civ. P. 54(b). The district court failed to offer any reasons for the Rule 54(b) certification. See Braswell Shipyards, Inc. v. Beazer East, Inc.,-F.2d-, No. 92-1476 (4th Cir. Aug. 23, 1993); Speigel v. Trustees of Tufts College, 843 F.2d 38, 43 (1st Cir. 1988). Moreover, the district court failed to consider that judicial, economic, and other resources would best be served by this Court reviewing an appeal from all issues in this case at one time, rather than in piecemeal fashion. See Allis-Chalmers Corp. v. Philadelphia Elec. Co., 521 F.2d 360, 364 (3d Cir. 1975). Because Rule 54(b) certification is warranted only in exceptional cases, Braswell, slip op. at 6, we hold that the district court abused its discretion in certifying this appeal. Accordingly, we dismiss the appeal as interlocutory. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the Court and argument would not aid the decisional process.

DISMISSED