August 23, 1966
LAMBERT C. BOER AND L. THELMA BOER, HIS WIFE, ET AL., APPELLANTS,
BORG-WARNER CORPORATION; RICHARD G. SHOLLEY AND HELEN S. SHOLLEY, HIS WIFE, APPELLANTS.
Before STALEY, Chief Judge, and McLAUGHLIN and SMITH, Circuit Judges.
Opinion OF THE COURT
The plaintiffs joined their separate claims for relief in a single action for fraud and breach of warranty. The present appeal is from a dismissal of the claims of Richard G. Sholley and Helen Sholley; the claims of the other plaintiffs are still pending.
We do not reach the merits of the question raised by the appellants because we are without jurisdiction to entertain the appeal. Absent "an express determination that there is no just reason for delay and * * * [a] direction for the entry of judgment," required by the most recent amendment of rule 54(b) of the Federal Rules of Civil Procedure, 28 U.S.C.A., the order of dismissal is not a final decision within the meaning of 28 U.S.C.A., § 1291. District 65, etc. v. McKague, 216 F.2d 153 (3rd Cir. 1954); Shipley Corp. v. Leonard Marcus Co., 214 F.2d 493 (3rd Cir. 1954); Katzman v. Hoffman, 211 F.2d 701 (3rd Cir. 1954).
The appeal will be dismissed without prejudice to the right of the appellants to apply to the lower court for such a determination and direction. However, we express no opinion as to whether the determination and direction should be made; this is a matter within the discretion of the lower court. If the determination and direction are made the appeal may come before us on the present briefs and record supplemented to show subsequent proceedings.
The appeal will be dismissed for lack of jurisdiction and the action will be remanded to the lower court.
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