Motion to Dismiss Appeal; Brief in Support of Motion to Dismiss

    FOR

THE

COURT OT APPEAIS

THE

ELEVENTH CIRCUIT

JT'LIA P. WILDER,

AppeIlee,

vs.

EAION !I1. LAI{BERT, €t dl.,

I,r-o.84-7287

Appellants.

MOTION TO DISMISS APPEAI

Appellee Julia P. Wilder, by her attorney, hereby moves

to dismiss this appeal for lack of jurisdiction Pursuant to

Federal Rules of Civil Procedure 54 (b) and 28 U.S.C. SS1291,

L292 (1982). The District Court judgrment of April 13, 1984

from which appellants have noticed this appeal, does not comPort

with FeC. R. Civl P. 54 (b). The District Court granted appelleer s

llotion For Summary Judgment on som'e, but not all, of the claims

raised in her petition. The District Court judgment is not a

final judgment in that the District Court did not expressly determine

that there is no just reason for delay of this appeal.

While this motj-on is pending, appellee further requests an

enlargement of time wiLhin whlch to file her brief of 2A days

IN

I.'NITED STATES



o
thisfrom the dat,e

Dated: October 25, 1984

Court rules on the pending motion.

Respect_ ty yout'd,

I,ANI GUINIER
99 Hudson Street
16th Floor
New York, New York I00I3
{2L21 2Le-1900

VAI{ZETTA PENN DURANT
639 Martha Street
Montgomery, AI 36104
(20s) 262-7337

Attorneys for ApPelLee

-2-



UNITED

In The

STATES COURT OF

For The

ELEVENTH CIRCUIT

APPEALS

JULIA P. WILDER,

Appellee,

vs.

EALON M. LAI'IBERT, €t 41.,
No. 84-7287

Appellants.

BRIEF IN STIPPORT OF
I\,IOTION TO DISMISS

On April 13, 1984 the court below granted appellee's

Motion for Summary Judgment on one of the clalms raised by

her Petition for Habeas Corpus. Appellants noticed this appeal

on April 27, L984.

In order to make its April 13, 1984 Order final und'er

Fed. R. Civ. Pro. 54 (b), the district court must expressly

determine that there is no just reason for delay and that its

decision upon some but less tfr.t, all the claims is ready for

appeal. Sears Roebuck v. Mackey,. 351 U.S. 427, 435 (1956).

In the absence of such express certification under Rule 54 (b),

the grant of summary judgment is not appealable. l4cl:egghlin

v. City of LaGrange, 662 F.2d 1385 (11th Cir. 1981); l4elancon

v. Insurance Co. of North-America v. Co -,

476 P.zd 594 (5th Cir. 1973). The Rule 54 (b) certificate is



an essential prerequisite for appeal since the April 13, 1984

judgment did not adjudicate all the claims raised by appellee-

petitioner. Huckeby v. Frozen Food Exp., 555 F.2d 542, 545-5

(sth Ci-r. L9771 .

Even though it was the understanding of the parties

that the district court intended to enter a final appealable

judgnrent, the absence of the Rule 54(b) certifj-cate requires

dismj-ssal of the instant appeal.

99 Hudson Street
New York, N. Y. 10013
(2t21 219-1900

VAIiZETTA DURANT
639 Martha Street
Montgom€ry, AL 36104
(20s) 262-7337

Attorneys for Appellee

Dated: October 25, 1984

-2-



@rtificate of Senrice

this is to certiflr ttrat I trave ttris day semad a @FY of the

fonegoing l,btiqr to Disrliss ard Eief lryon:

P. M. Johnston, Esq.
Attornelz @neral's Annex
669 Scuth Lanrrence Street,
I,trItEanerY, Alabana 35104

via ltrrited, States mail, lnstage prepaid.

Tlxis 25th da1'of october, 1984-

Attomqf for Appellee