NOT RECOMMENDED FOR FULL-TEXT PUBLICATION File Name: 09a0112n.06 Filed: February 11, 2009

No. 07-3525

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

UNITED STATES, ) ) Plaintiff-Appellee, ) ) v. ) ON APPEAL FROM THE UNITED ) STATES DISTRICT COURT FOR THE TRI-STATE GROUP, INC., formerly ) NORTHERN DISTRICT OF OHIO known as Tri-State Asphalt Corp., ) ) Defendant-Appellant. ) ) )

Before: COLE, GIBBONS, and ROGERS, Circuit Judges.

PER CURIAM. A review of the record indicates that on November 6, 2006, an opinion and

order was entered denying defendant Tri-State Group, Inc.’s motion for summary judgment. On

March 28, 2007, the district court filed a judgment entry in favor of plaintiff United States “[f]or the

reasons set forth in the Memorandum Opinion filed on November 16,1 2006.” The defendant filed

a notice of appeal from the March 28, 2007 judgment entry.

No final judgment or appealable order has been entered by the district court. The November

6 opinion and order is not final and appealable because it did not end the litigation on the merits.

See Floyd v. City of Detroit, 518 F.3d 398, 404 (6th Cir. 2008) (denial of a motion for summary

1 This appears to be a typographical error, as no docket entry appears on November 16. The date should read November 6. United States v. Tri-State Group, Inc. No. 07-3525

judgment not appealable except in circumstances not present here). The March 28 judgment entry

purporting to render judgment for the plaintiff is inconsistent with the November 6 opinion and

order, which did not resolve all claims between the parties. We therefore lack jurisdiction over this

case. See 28 U.S.C. § 1291.

It is ORDERED that the appeal be and hereby is dismissed sua sponte without prejudice to

perfect a timely appeal upon entry of a final judgment.

2