Peggy A. Davis v. Village of Decatur , 23 F. App'x 595 ( 2001 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 01-1437
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Peggy A. Davis; *
*
Plaintiff-Appellant, *
*
Pamela R. Nelsen, *
*
Plaintiff, * Appeal from the United States
* District Court for the District
v. * of Nebraska.
*
Village of Decatur, a Political * [UNPUBLISHED]
Subdivision; Lance Anderson, *
Individually; Sharon Huffman, *
Individually; Howard Storm, *
Individually, *
*
Defendants-Appellees. *
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Submitted: October 18, 2001
Filed: October 24, 2001
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Before WOLLMAN, Chief Judge, FAGG and RILEY, Circuit Judges.
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PER CURIAM.
Peggy A. Davis and Pamela R. Nelsen were dismissed from their positions with
the Village of Decatur (the Village) and refused grievance hearings. Davis and Nelsen
sued the Village and the members of the Board of Trustees individually, claiming loss
of a property right without due process in violation of the Fifth and Fourteenth
Amendments. The district court* dismissed the claims against the trustees, finding
the trustees were entitled to absolute immunity for their legislative acts. The district
court granted summary judgment for the Village on Davis’s claim and denied
summary judgment on Nelsen’s claim, which is scheduled to proceed to trial. Davis
appeals the judgment for the Village, but does not challenge the trustees’ dismissal
from the suit.
Although neither party questions our authority to hear Davis’s appeal, we must
consider whether we have jurisdiction before deciding the merits of the case. See
Krein v. Norris, 250 F.3d 1184, 1187 (8th Cir. 2001). Under 28 U.S.C. § 1291,
appellate courts have jurisdiction over final judgments. Orders disposing of fewer
than all the claims or all the parties are not final judgments. Fed. R. Civ. P. 54(b); see
also Murphy v. Arkansas, 127 F.3d 750, 753 (8th Cir. 1997) (holding grant of partial
summary judgment was nonappealable). Because Nelsen’s claim against the Village
remains pending, the district court’s grant of summary judgment on Davis’s claim is
not a final judgment. See Raines v. City of Kimball, Tennessee, 165 F.R.D. 75, 78
(E.D. Tenn. 1996). A district court may certify a partially dispositive order for
appellate review, but “only upon an express determination that there is no just reason
for delay and upon an express direction for the entry of judgment.” Fed. R. Civ. P.
54(b). Here, the district court did not state it was certifying Davis’s case for appeal.
Additionally, although the district court expressly granted final judgment against
Davis, the court did not make the required finding that there is no just reason to delay
Davis’s appeal until the entire case concludes. Thus, we lack jurisdiction to reach
the merits of Davis’s claim.
*
The Honorable Joseph F. Bataillon, United States District Judge for the
District of Nebraska.
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Accordingly, we dismiss Davis’s appeal.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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