BURKE v. 100 (2021)

SUMMARY ORDER

Appellant Brian Burke, proceeding pro se, sued numerous defendants under federal and state law. The district court dismissed the amended complaint with respect to all but six of the defendants. It did not enter partial judgment or certify the order for immediate appeal. Burke appealed. The district court proceedings continued with respect to the undismissed defendants. We assume the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.

We have appellate jurisdiction over “final decisions of the district courts.” 28 U.S.C. § 1291. “A final ․ order is one that conclusively determines all pending claims of all the parties to the litigation, leaving nothing for the court to do but execute its decision.” Petrello v. White, 533 F.3d 110, 113 (2d Cir. 2008). A district court order other than a final decision under § 1291 is appealable only if (1) the order relates to an injunction; (2) the district court certifies the order for immediate appeal under 28 U.S.C. § 1292(b); (3) the district court enters partial final judgment under Federal Rule of Civil Procedure 54(b); or (4) the order falls within the collateral order doctrine. See United States v. Culbertson, 598 F.3d 40, 45–46 (2d Cir. 2010).

Here, the district court's order of dismissal was not a final judgment. Although the district court dismissed most of the defendants, proceedings continued against the remaining six defendants. The district court did not direct entry of judgment pursuant to Rule 54(b) or certify the order for immediate appeal under 28 U.S.C. § 1292(b). Nor does the order involve an injunction or fall into any other exception listed in § 1292(a).

The order also does not fall under the collateral order doctrine because it does not resolve important issues completely separate from the merits of the action and Burke may appeal the dismissal order after final judgment. See Schwartz v. City of New York, 57 F.3d 236, 237–38 (2d Cir. 1995). Burke's appeal is therefore from a nonfinal order and must be dismissed for lack of jurisdiction.

CONCLUSION

For the foregoing reasons, we DISMISS the appeal for lack of appellate jurisdiction.