FILED
United States Court of Appeals
Tenth Circuit
June 3, 2008
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
FOR THE TENTH CIRCUIT Clerk of Court
RICHARD G. KIRBY,
Plaintiff-Appellant,
v. No. 07-2125
(D.C. No. 04-CV-844-DJS-ACT)
DALLAS COUNTY ADULT (D. N.M.)
PROBATION DEPARTMENT,
Community Supervision and
Corrections Department, Dallas Co.;
MARK OLSEN; D. TODD HILL,
Probation Officer, Dallas County
Probation Department; LAURA
CARAWAY, Probation Officer
Supervisor, Dallas County Probation
Department; JIM MILLS, Assistant
Director, Dallas County Probation
Department; ROBERT L. WEBSTER,
Assistant U.S. Attorney, Dallas,
Texas; GRANT COUNTY DISTRICT
ATTORNEY’S OFFICE; JIM FOY,
Prior Grant County District Attorney;
ARNOLD CHAVEZ, Grant County
DA Investigator; MARY LYNN
NEWELL, Grant County District
Attorney; TIM GARNER, Grant
County Assistant District Attorney,
Sixth Judicial District, Silver City,
New Mexico; NEW MEXICO
SECURITIES DIVISION; BRUCE
KOHL; JAMES MAES, New Mexico
Securities Division, Santa Fe,
New Mexico; JOHN DOE; JANE
DOE, Grant County Detention Center,
Grant County, New Mexico;
DONA ANA COUNTY DISTRICT
ATTORNEY; TOM CLARK;
MICHAEL CAIN, Assistant District
Attorney, Las Cruces, New Mexico;
KANSAS SECURITIES DIVISION,
Topeka, Kansas; GARY FULTON;
SCOTT SCHULTZ, Kansas Securities
Division, Topeka, Kansas; FIRST
NEW MEXICO BANK, doing
business as Copper Country Escrow;
MARTHA STEWART; JOHN DOE;
JANE DOE, First New Mexico Bank,
Silver City, New Mexico; GENE
CRAWFORD; HAROLD JOHNSON,
Pinto Altos, New Mexico; UNITED
STATES SECRET SERVICE;
CHUCK QUINN, Agent, United States
Secret Service, Wichita, Kansas;
ANDREW BAZEMORE, Agent,
United States Secret Service,
Albuquerque, New Mexico; BUTLER
COUNTY SHERIFF’S
DEPARTMENT; RANDY COFFMAN,
Butler County Sheriff’s Investigator;
MIKE TANNER, Butler County
Sheriff’s Deputy, El Dorado, Kansas;
STEVE HOWE, Assistant District
Attorney, Olathe, Kansas; BILL
MATTIACE, Las Cruces Mayor,
Adventure Travel, Las Cruces,
New Mexico; J.D. JONES,
Investigator, Las Cruces Police
Department; RICKY MADRID, Sgt.,
Las Cruces Police Department, Las
Cruces, New Mexico; THE SILVER
CITY POLICE DEPARTMENT, Silver
City, New Mexico; HAM, Lt.;
UNKNOWN POLICE OFFICERS,
Silver City Police Department, Silver
City, New Mexico; RANDALL
HARRIS, Curry County District
Attorney, at the time, Clovis, New
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Mexico; JOHN DOES; JANE DOES;
FREDERICK SHERMAN, Attorney at
Law, for First New Mexico Bank,
Deming, New Mexico; GRANT
COUNTY DETENTION CENTER,
County of Grant, New Mexico, Silver
City, New Mexico,
Defendants-Appellees.
ORDER AND JUDGMENT *
Before LUCERO and PORFILIO, Circuit Judges, and BRORBY, Senior Circuit
Judge.
Richard G. Kirby appeals the district court’s denial of his motion for a
mandatory injunction in district court docket number 257 and its dismissal of his
claims against certain defendants in district court docket number 258. We note
that Mr. Kirby brought claims against numerous defendants in this action, and
that the district court has yet to dispose of many of his claims. Consequently, this
appeal is an interlocutory appeal. Defendant First New Mexico Bank of Silver
City has moved to dismiss the appeal for lack of jurisdiction.
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
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We have jurisdiction over the interlocutory appeal of district court docket
number 257 because that order is an express denial of injunctive relief. See
28 U.S.C. § 1292(a) (providing jurisdiction to review “[i]nterlocutory orders of
the district courts . . . or of the judges thereof . . . refusing . . . injunctions”). The
district court correctly construed the motion as one for a preliminary injunction,
and we review the denial of a preliminary injunction for an abuse of discretion.
See Utah Licensed Beverage Ass’n v. Leavitt, 256 F.3d 1061, 1065 (10th Cir.
2001). “An abuse of discretion occurs only when the trial court bases its decision
on an erroneous conclusion of law or where there is no rational basis in the
evidence for the ruling.” Id. (quotation omitted). The district court did not abuse
its discretion in denying Mr. Kirby’s motion for a mandatory injunction.
Accordingly, we affirm the district court’s decision for substantially the reasons
stated in district court docket number 257.
In contrast, we lack jurisdiction over the interlocutory appeal of district
court docket number 258. With some exceptions, such as § 1292(a), this court
generally has jurisdiction to review only “final decisions” of the district courts.
28 U.S.C. § 1291. An order that disposes of “fewer than all the claims or the
rights and liabilities of fewer than all the parties does not end the action as to any
of the claims or parties” unless the district court “expressly determines that there
is no just reason for delay” and “direct[s] entry of a final judgment as to one or
more, but fewer than all, claims or parties.” Fed. R. Civ. P. 54(b). Thus, “[i]n
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the absence of [a Rule 54(b)] determination, any order, however designated,
which adjudicates fewer than all of the claims or the liabilities of all of the
parties, is not a final appealable order.” Atiya v. Salt Lake County, 988 F.2d
1013, 1016 (10th Cir. 1993). This is so even if the order may seem “final” as far
as the particular defendants and/or claims addressed therein are concerned. Our
review of the district court’s docket indicates that, to date, claims against more
than thirty defendants remain pending in the district court. Moreover, district
court docket number 258 does not contain a Rule 54(b) determination.
Accordingly, we do not have jurisdiction over the appeal of district court docket
number 258.
The denial of Mr. Kirby’s motion for a mandatory injunction in district
court docket number 257 is AFFIRMED. First New Mexico Bank of Silver City’s
motion to dismiss the appeal is GRANTED in part, and the portion of this appeal
that concerns district court docket number 258 is DISMISSED for lack of
appellate jurisdiction.
Entered for the Court
John C. Porfilio
Circuit Judge
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