470 U.S. 1067 (1985)

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U.S. Supreme Court


470 U.S. 1067

Florence TALAMINI, Administratrix of Estate of John A. Talamini
No. 84-18

Supreme Court of the United States

March 25, 1985

The appeal is dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari is denied.

Justice STEVENS, with whom Justice BRENNAN, Justice MARSHALL, and Justice BLACKMUN join, concurring.

Appellant filed a two-count complaint against appellee seeking to recover damages under two Pennsylvania statutes. [Footnote 1] The Dis-

Page 470 U.S. 1067 , 1068

trict Court granted a motion to dismiss Count II and appellant tried to appeal from that order under 28 U.S.C. 1291. The Court of Appeals for the Third Circuit dismissed the appeal, presumably because the District Court's dismissal of only one count of the complaint was not a final order . Appellant has invoked our appellate jurisdiction under 28 U.S.C. 1254, arguing that Pennsylvania courts would treat the District Court's dismissal as a final order and that the federal courts should also treat the dismissal as final under the collateral-order doctrine of Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541 (1949). I find no merit to that argument and agree that the appeal should be dismissed; treating it as a petition for a writ of certiorari, the petition should be denied.

Appellee filed a nine-page motion to dismiss or affirm in which it correctly pointed out that a court of appeals does not have jurisdiction over an appeal from a district court order dismissing less than all of the claims alleged in a complaint unless the district court has made the express determination that Rule 54(b) of the Federal Rules of Civil Procedure requires. [Footnote 2] In the concluding section of its printed motion, appellee requests the Court to award it "double costs and attorneys fees incurred." 3 Because three Members of the Court have expressed the opinion that the request should be treated as a formal motion and that it should be granted [470 U.S. 1067 , 1069]

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