Stephen Alberts, II v. Wheeling Jesuit University

Filing 920100129

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-2181 STEPHEN ALAN ALBERTS, II, Ed.D., Plaintiff Appellant, v. WHEELING JESUIT UNIVERSITY; LETHA ZOOK, Defendants Appellees. Appeal from the United States District Court for the Northern District of West Virginia, at Wheeling. Frederick P. Stamp, Jr., Senior District Judge. (5:09-cv-00109-FPS) Submitted: January 8, 2010 Decided: January 29, 2010 Before WILKINSON, DUNCAN, and AGEE, Circuit Judges. Dismissed by unpublished per curiam opinion. Stephen Alan Alberts, II, Appellant Pro Se. Christopher Paull Riley, BAILEY, RILEY, BUCH & HARMAN, LC, Wheeling, West Virginia, for Appellees. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Stephen Alan Alberts, II, seeks to appeal an order entered by the U.S. District Court for the Western District of Pennsylvania recommendation adopting and the magistrate his judge's case to report the and transferring Northern District of West Virginia. appeal was entered by the Because the order Alberts seeks to District Court for the Western District of Pennsylvania, an appeal from an order of that court may only be taken to the U.S. Court of Appeals for the Third Circuit, 1294 which (2006). embraces that district this court. court See cannot 28 U.S.C. Accordingly, consider Alberts's challenge to the transfer order. Further, we decline to transfer this appeal to the Court of Appeals for the Third Circuit. Pursuant to 28 U.S.C. 1631 (2006), when an appeal is noticed for a circuit court, and the court finds "that there is a want of jurisdiction, the court shall, if it is in the interest of justice, transfer such action or appeal to any other such court in which the action or appeal could have been brought at the time it was filed or noticed." We conclude, however, that while there is a want of jurisdiction in this court, transfer to the Third Circuit Court of Appeals is not in the interest of justice because Alberts's appeal is otherwise interlocutory. Circuit courts may exercise jurisdiction only over final orders, 28 U.S.C. 1291 (2006), 2 and certain interlocutory and collateral orders, 28 U.S.C. 1292 (2006); Fed. R. Civ. P. 54(b); Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546-47 (1949). seeks to appeal is neither a final order The order Alberts nor an appealable interlocutory or collateral order. Inc., 305 F.3d 253, 919 255-56 F.2d (4th See In re Carefirst of Md., Cir. (3d 2002); Cir. is not Carteret 1990) an Sav. Bank v. Shushan, 1406 225, 230 (holding 28 U.S.C. (2006) transfer order appealable collateral order). Accordingly, damages in his favor we deny Alberts's the motion appeal to for find lack for of and dismiss jurisdiction. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. DISMISSED 3

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