24 F.3d 249NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.
Jay H. SHIDLER, Plaintiff-counter-defendant-Appellee,v.LIVADAS/SHIDLER INVESTMENT CORPORATION, Defendant,andKenneth G. Livadas, Defendant-counter-claimant-Appellant.Jay H. SHIDLER, Plaintiff-Appellee,v.Kenneth G. LIVADAS, Defendant-Appellant.
Nos. 92-56564, 93-55107.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted May 3, 1994.Decided May 6, 1994.

1
Before:  KOZINSKI and TROTT, Circuit Judges, and WILLIAMS,* District Judge.


2
MEMORANDUM**


3
Notwithstanding our recent decision in  Dannenberg v. Software Toolworks Inc., 16 F.3d 1073 (9th Cir.1994), we have jurisdiction in this case because here, unlike in Dannenberg, the parties did not manufacture a final judgment.  The claims they dismissed were refiled in state court, and so are unlikely to return to federal court.


4
As to the merits, we affirm for the reasons stated by Judge Real below.  ER 1567-73.


5
As to fees, we dismiss the appeal for lack of jurisdiction.  The district court's judgment as to fees is separate from its final decision on the merits, see United States v. RG & B, No. 92-36742, slip. op. 3581, 3586-87 (9th Cir.  Apr. 13, 1994), and cannot be treated as a motion for "costs,"  Metcalf v. Borba, 681 F.2d 1183, 1185-86 (9th Cir.1982).  As no notice of appeal was timely filed regarding fees, we are without jurisdiction.   Farley v. Henderson, 883 F.2d 709, 712 (9th Cir.1989).


6
AFFIRMED.



*
 The Honorable Spencer M. Williams, Senior United States District Judge for the Northern District of California, sitting by designation


**
 This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3


