Opinion
No. 07-3728.
Submitted: March 9, 2009.
Filed: March 17, 2009.
Appeal from the United States District Court for the Western District of Missouri.
Before BYE, COLLOTON, and GRUENDER, Circuit Judges.
[UNPUBLISHED]
Harold Stanley appeals the district court's dismissal of his civil rights complaint. After careful review, we conclude that the court's judgment was not a final, appealable order because it did not dispose of the counterclaim raised by Marcia Stanley in her answer. See 28 U.S.C. § 1291 (courts of appeals shall have jurisdiction of appeals from all final decisions of district courts); Fed.R.Civ.P. 54(b) (any order that adjudicates fewer than all claims does not end action as to any claims or parties); Miller v. Special Weapons, L.L.C., 369 F.3d 1033, 1034-35 (8th Cir. 2004) (noting problems with allowing counterclaims that are "dead but undismissed" or are substantively resolved by non-final orders, to proceed; dismissing appeal for lack of jurisdiction where district court failed to rule on counterclaim even though it was necessarily disposed of by summary judgment order); Thomas v. Basham, 931 F.2d 521, 522-23 (8th Cir. 1991) (jurisdictional issues will be raised sua sponte when there is indication that jurisdiction is lacking; court lacked jurisdiction over appeal from summary judgment order because defendant's counterclaims were outstanding at time of order).
The Honorable Gary A. Fenner, United States District Judge for the Western District of Missouri.
Accordingly, we dismiss the appeal for lack of jurisdiction.