Cmax, Inc., Also D. B. A. City Messenger of Hollywood and City Messenger Air Express v. Drewry Photocolor Corporation

In this matter, we do not reach the merits because we have concluded that the “judgment” from which the appeal is taken is not final under Rule 54(b), F.R.Civ.P., 28 U.S.C. and is not appeal-able under 28 U.S.C. § 1291 .

The complaint which was filed December 15, 1959, is in two counts. The first alleges' that appellant corporation (plaintiff) is an “Air Freight Forwarder” as defined in 14 C.F.R. § 296.2 (a), that it filed with the Civil Aeronautics Board its printed tariffs, as required by 49 U.S.C.A. § 1373 and 14 C.F.R. 221.3(a), that it received certain shipments from appellee (defendant), beginning in January, 1955, and continuing until to and including February, 1957, that the proper charges under appellant’s tariffs was $28, 781.85, that it received from appellee $16,085.76, and that it is entitled to recover the difference of $12,696.09. Jurisdiction was based upon 28 U.S.C. § 1337 and 49 U.S.C.A. § 1373 .

The second count repeats all of the allegations of the first, and adds: “That * * * plaintiff entered in its books of accounts its charges as shown on air bills issued by it. That the undercharges herein involved were entered in its books of account pursuant to an…