Opinion
Case No. 2:02-CV-00027PGC.
October 12, 2004
ORDER DENYING MOTION FOR CERTIFICATION UNDER RULE 54(b)
The court hereby DENIES defendants' Motion for Certification Under Rule 54(b). Because an appeal has been taken, until the Tenth Circuit makes a determination as to its jurisdiction, this court no longer has jurisdiction over this case. In a case similar to this one the Tenth Circuit stated that "the district court no longer has jurisdiction over any part of this action. . . ." Certification under Rule 54(b) should be sought before an appeal is taken. It may be possible for this court to enter a Rule 54(b) certification or, if the court was incorrect, amend its judgment to dismiss Count VII with prejudice, with the permission of the court of appeals. However, absent jurisdiction, the court cannot amend its judgment.
Cook v. Rocky Mountain Bank Note Company, 974 F.2d 147, 148 (10th Cir. 1992); see also, State Treasurer of State of Michigan v. Barry, 168 F.3d 8, 19 (11th Cir. 1999) (Cox J., concurring) ("the Tenth Circuit has concluded that in these cases the district court has lost jurisdiction").
Trinity Broadcasting Corp v. Eller, 827 F.2d 673, 675 (10th Cir. 1987) ("In this circuit, Rule 54(b) certification must precede filing of the notice of appeal.").
See Heimann v. Snead, 133 F.3d 767, 769 (10th Cir. 1998) (noting a case in which, "[w]ith the permission of the court of appeals," the district court was allowed to amend its judgment to add a 54(b) certification).