West v. Louisville Gas and Electric Co.

Ct. of Appeals dismissed for lack of jurisdiction plaintiff’s appeal of Dist. Ct.’s order dismissing under Cable Communications Policy Act plaintiff’s action against certain defendants alleging that defendants’ addition of fiber optic communications wire to utilities transmission tower located on plaintiff’s property exceeded scope of utilities easement that authorized said tower. Record showed that: (1) plaintiff’s similar action against defendant-tower owner remained pending after portion of plaintiff’s case against remaining defendants had been dismissed; and (2) plaintiff subsequently entered into agreement with defendant-tower owner to conditionally dismiss his case against said defendant, but that plaintiff could revive said claim if Ct. of Appeals had reversed dismissal of plaintiff’s case against remaining defendants in instant appeal. As such, said conditional dismissal rendered dismissal order at issue in instant appeal non-final and not appealable under 28 USC section 1291. Ct. further noted that plaintiff could have attempted to seek appeal under Rule 54(b) or 28 USC section 1292(b).