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An Appeal from an Order without Rule 54(b)’s Magic Language is Premature

Our intent is to cover the cases decided since December 13, 2011 in chronological order. The first case we bring to you was decided by the Seventh Circuit on December 15, 2011 and addressed an issue that I am surprised was not addressed earlier. In Brown v. Columbia Sussex Corp., ___ F.3d ___ (7th Cir. 2011), Cause No. 10-3849, the Court was asked to determine whether it had jurisdiction over an order which did not contain 54(b) language if the district court entered a new order containing such language while the appeal was pending. The Court held that it did have jurisdiction.

In Brown, 268 plaintiffs brought claims against a Marriott because Marriott cancelled their room reservations and the plaintiffs felt that this was racially motivated. The plaintiffs repeatedly failed to meet discovery deadlines and the district court eventually dismissed the claims of 224 of the plaintiffs as sanctions for their discovery violations. That order did not contain 54(b) language, but it was appealed by 53 of the dismissed plaintiffs.