UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

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MARLIN BAER, 

 Plaintiff - Appellant,

v.

SALT LAKE CITY CORPORATION; 

LARRY BOWERS; GENO GARCIA; 

TENNO NAVAREZ; DON HUNSAKER; 

IENA SWANKE, 

 Defendants - Appellees,

and

COUNTY OF SALT LAKE; JEFFERY 

SEIGAL; TRENTON HEINTZ, 

 Defendants.

No. 14-4153

(D.C. No. 2:13-CV-00336-CW-PMW)

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ORDER

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Before BRISCOE, Chief Judge, LUCERO, and PHILLIPS, Circuit Judges.

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Appellant Marlin Baer seeks to appeal the dismissal of his claims against the Salt 

Lake City Corporation, Larry Bowers, Geno Garcia, Rosendo “Teno” Nevarez, Don 

Hunsaker, and Faifuaina “Ina” Schwenke-Tauiliili (the “City Defendants” ) for failure to 

state a claim. Mr. Baer’s claims against several other defendants remain pending in the 

district court. We consider sua sponte whether we have jurisdiction to consider this 

appeal.

FILED

United States Court of Appeals

Tenth Circuit

February 19, 2015

Elisabeth A. Shumaker

Clerk of Court

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Generally, our jurisdiction is limited to review of final decisions. 28 U.S.C. § 

1291. An order or other decision that adjudicates fewer than all claims, or the rights and 

liabilities of fewer than all parties, is not a final decision unless the district court certifies 

the order as final in accordance with Federal Rule of Civil Procedure 54(b). See Fed. R. 

Civ. P. 54(b).

To satisfy Rule 54(b)’s requirements, a district court must make two express 

determinations. Oklahoma Tpk. Auth. v. Bruner, 259 F.3d 1236, 1242 (10th Cir. 2001). 

“First, the district court must determine that the order it is certifying is a final order.” Id. 

“Second, the district court must determine that there is no just reason to delay review of 

the final order.” Id. Incorporating by reference the arguments and conclusions contained 

in a motion seeking certification does not satisfy Rule 54(b)’s requirements. Stockman’s 

Water Co., LLC v. Vaca Partners, LP, 425 F.3d 1263, 1266 (10th Cir. 2005); see also 

Schrock v. Wyeth, Inc., 727 F.3d 1273, 1279 (10th Cir. 2013) (declining to consider the 

motion seeking Rule 54(b) certification in conjunction with the district court’s 

certification order to determine whether the district court had made the requisite 

findings). We have held that the district court must set forth, “albeit briefly,” its reasons 

supporting a determination of finality and no just reason for delay in its certification 

order, or the order will not be sufficient to provide us with appellate jurisdiction. 

Stockman’s Water, 425 F.3d at 1266 (dismissing for lack of jurisdiction because the 

district court did not make the necessary findings in its certification order).

In this case, a magistrate judge recommended that the district court grant the City 

Defendants’ motion to dismiss, and the district court adopted that recommendation on 

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April 25, 2014. Mr. Baer subsequently filed several motions asking the court to 

reconsider its April 25 order and the City Defendants filed a motion to certify the April 

25 order as final pursuant to Rule 54(b). On September 11, 2014, the district court 

denied Mr. Baer’s motions to reconsider and granted the City Defendants’ motion to 

certify. In doing so, the district court quoted the text of Rule 54(b) and then stated,

For the reasons stated in the City Defendants’ Motion and Memorandum, 

and for good cause shown therein, the Court hereby GRANTS the motion, 

and certifies its Order Adopting Report and Recommendation on April 25, 

2014 (Dkt. No. 63) as a final judgment with respect to the Court’s Order 

dismissing Plaintiff’s claims against the City Defendants.

On December 1, 2014, Mr. Baer filed a notice of appeal from the district court’s 

September 11 order certifying the dismissal of the City Defendants as final. We note that 

even if the district court had issued a proper Rule 54(b) certification, Mr. Baer’s appeal 

would have been untimely and we would lack appellate jurisdiction for that reason. See

Fed. R. App. P. 4(a)(1)(A) (providing that a notice of appeal must be filed within 30 days 

after entry of the judgment appealed from). However, the district court’s certification did 

not satisfy Rule 54(b)’s requirements. The district court did not set forth its own 

reasoning nor did it make an express determination that there was no just reason to delay 

review of the April 25 order.

In accordance with the practice adopted by this court in Lewis v. B.F. Goodrich, 

Co., 850 F.2d 641, 645 (10th Cir. 1988), upon opening this appeal, the court notified Mr. 

Baer of the apparent jurisdictional defect occasioned by the insufficient Rule 54(b) 

certification and directed Mr. Baer to obtain a proper Rule 54(b) certification from the 

district court or a final judgment adjudicating all remaining claims. Mr. Baer filed a 

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response to the court’s order and the court extended Mr. Baer’s deadline for obtaining a 

proper Rule 54(b) certification until February 9, 2015.

Mr. Baer has filed another response asking the court to abate this appeal until 

February of 2016, which is when trial is set on his claims against the remaining 

defendants. In the meantime, Mr. Baer indicates he will request a proper Rule 54(b) 

certification from the district court. Lewis does not allow for a lengthy abatement of a 

premature appeal while the parties continue to litigate in district court. 850 F.2d at 645-

46 (indicating that “if no certification, or final, dispositive adjudication, is obtained and 

presented to this appellate court by the specified date, the case will be dismissed 

summarily for lack of appellate jurisdiction”). Absent a proper Rule 54(b) certification, 

we are without jurisdiction and must dismiss, but our determination that the district 

court’s Rule 54(b) certification was insufficient to confer jurisdiction on this court at this 

time does not preclude Mr. Baer from filing a timely appeal following entry of final 

judgment.

Mr. Baer has not remedied the jurisdictional defect within the time set by the 

court. Accordingly, this appeal is dismissed for lack of jurisdiction.

Entered for the Court

ELISABETH A. SHUMAKER, Clerk

by: Jane K. Castro

 Counsel to the Clerk

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