McLaughlin v. Mississippi Power Co.

Citation376 F.3d 344
Decision Date28 June 2004
Docket NumberNo. 03-60214.,03-60214.
PartiesMax V. McLAUGHLIN; et al., Plaintiffs, v. MISSISSIPPI POWER COMPANY; et al., Defendants. Interstate Fibernet Inc., Plaintiff-Appellant, v. Thirty-Seven (37) Parcels; et al., Defendants, Thirty-Seven (37) Parcels of Real Property, Located in Forrest, Hancock, Harrison, Jackson, Jones, Lamar and Lauderdale Counties, Mississippi; Bancorpsouth Bank; Mary Jane Delmas Baugh; Terrell Ann Ford; Margaret Ford Murphy; Chantilly Corp.; Clemover Corp.; Columbia Ventures Inc.; Community Bank; Federal Land Bank Association of South Mississippi FLCA; John Ford, also known as Rena A. Ford, Trustee of the Rena A. Ford Inter Vivos Trust Agreement; Mary Elizabeth Ford, also known as Rena A. Ford, Trustee of the Rena A. Ford Inter Vivos Trust Agreement; Rena Ann Ford, also known as Rena A. Ford, Trustee of the Rena A. Ford Inter Vivos Trust Agreement; Marie Ford Horne, also known as Rena A. Ford, Trustee of the Rena A. Ford Inter Vivos Trust Agreement; H H White Limited Partnership; David Hobgood; Richard Hobgood; Robert Hobgood, also known as Robert Hobgood; Steven A. McRae, also known as Stephen McRae; Dennis L. Pierce; Ray Crowell Real Estate Inc.; Bryan Saliba; Nick Welch; Weyerhaeuser Co.; unknown others; Plum Creek South Central Timberlands, LLC, Defendants-Appellees, Purcell Company Inc., Defendant-Counter-Claimant-Appellees, v. Mississippi Power Company, Counter-Defendant-Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)

Michael Brunson Wallace (argued), Phelps Dunbar, Jackson, MS, Henry John Gutierrez, Richard B. Tubertini, Phelps Dunbar, Gulfport, MS, for Interstate Fibernet Inc.

Ben H. Stone (argued), Jonathan P. Dyal, Paul Richard Lambert, Balch & Bingham, Gulfport, MS, for Mississippi Power Co.

A. Malcolm N. Murphy, Lucedale, MS, for Terrell Ford and Murphy.

Michael Clayton Barefield, Gulfport, MS, for Chantilly Corp.

Henry Payson Pate, III, John M. Ford, Pascagoula, MS, for Clemover Corp., Columbia Ventures Inc., John, Mary Elizabeth and Rena Ford and Horne.

Ray Thomas Price, Hattiesburg, MS, for Pierce and Saliba.

Carl Victor Welsh, III (argued), Pittman, Germany, Roberts & Welsh, Jackson, MS, Eugene C. Thach, Jr., Heidelberg, MS, for Purcell Co., Inc. and Welch.

Gail A. Crowell, Compton, Crowell & Hewitt, Biloxi, MS, for Ray Crowell Real Estate Inc.

Paul B. Henderson (argued), Robert Evans Sanders, Young, Williams, Henderson & Fuselier, Jackson, MS, for Weyerhauser Co.

Lawrence C. Gunn, Jr., L. Clark Hicks, Jr. (argued), Gunn & Hicks, Hattiesburg, MS, for Plum Creek South Central Timberlands LLC.

Appeal from the United States District Court for the Southern District of Mississippi.

Before KING, Chief Judge, and BENAVIDES and CLEMENT, Circuit Judges.

PER CURIAM:

Mississippi Power Company (MPC) and Interstate Fibernet, Inc. (IFN) appeal an order dissolving an injunction, dismissing IFN's complaint, and refusing to certify a class. We affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

MPC, an electricity provider, owns easements across tracts of real property owned by Nick Welch, Purcell Company, Inc., Weyerhaeuser Company, Plum Creek South Central Timberlands, LLC, and the other defendants in this suit. Among other things, these easements authorize MPC to operate telecommunications lines across the defendants' properties "in connection" with their main business of supplying electricity.

MPC entered into a contract with IFN, wherein IFN agreed to contribute to the cost of constructing and maintaining a fiber optic line through MPC's easements in exchange for the right to use the line for its commercial telecommunications business. In McDonald v. Mississippi Power Co., the Mississippi Supreme Court held that MPC had the right, under the terms of its easements, to install and to use fiber optic cables. 732 So.2d 893, 897 (Miss.1999). Additionally, the court held that MPC's sublease of the line to IFN did not constitute an additional servitude on the properties. Id. But the court also held that the terms of the easements prevented MPC from subleasing space on its fiber optic cables "for purposes other than those which are in connection with providing electricity." Id. The court then remanded the case. Id. at 898.

While McDonald was pending in the state trial court on remand, IFN filed this suit in federal district court, seeking a declaration that it owed no compensation to any of the defendants for its use of MPC's fiber optic line, either because MPC had the right to allow IFN to use its fiber optic line or because IFN's use of the line imposed no additional burden or servitude on the properties. In the alternative, IFN asked the district court to condemn an interest across the thirty-seven parcels of land for its use. IFN premised jurisdiction on diversity of citizenship.

Two of the defendants to the suit, Welch and Purcell, filed a class-action counterclaim against IFN and a class-action third-party complaint against MPC and Southern Company, which owns MPC. Welch and Purcell's counterclaim and third-party complaint alleged violations of the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. § 1961 et seq. (2000), slander of title, trespass, civil conspiracy, unjust enrichment, fraudulent concealment, and conversion. MPC, in turn, filed a counterclaim against Welch and Purcell, seeking a declaration that it had the right to allow third parties to use its telecommunication lines, a declaration that Welch and Purcell (and any future class members) had suffered no damages, and an injunction against Welch and Purcell (and any future class members) to prevent them from interfering with MPC's use of its telecommunications lines.

After MPC was made a party to Interstate Fibernet, the district court consolidated the suit with McLaughlin v. Mississippi Power Co., a similar suit filed by Mississippi landowners against MPC. The district court's order consolidated the two suits "for all purposes."

In the meantime, IFN filed a motion with the district court to enjoin two defendants, Bryan Siliba and Dennis Pierce, from pursuing an action they had filed in Mississippi state court against IFN and MPC. The district court granted IFN's motion, pending resolution of the court's subject-matter jurisdiction.

In accordance with their class-action counterclaim and third-party complaint, Welch and Purcell filed a motion to certify a class of similarly situated landowners. Shortly thereafter, IFN moved to file an amended complaint that requested certification of a defendant and counter-plaintiff class represented by Welch and Purcell.1 Eventually, though, Welch and Purcell filed a motion to withdraw their motion for class certification and began to oppose IFN's attempts to certify a class. Welch and Purcell asserted that the typicality and adequacy requirements for class certification under Federal Rule of Civil Procedure 23 could not be met.

On February 19, 2003, the district court issued a memorandum opinion and order. After finding that it lacked subject-matter jurisdiction over IFN's claims, the district court dismissed IFN's complaint, denied IFN and MPC's motion for class certification, and vacated the injunction against state-court proceedings. The district court also purported to dismiss "the case styled Interstate Fibernet v. Thirty-Seven (37) Parcels of Real Property." IFN appealed "from the order entered in Civil Action No. 1:01CV324SR on the 19th day of February, 2003, ... and from any final judgment to be entered pursuant thereto under Fed.R.Civ.P. 58." The district court did not, however, dismiss McLaughlin, the case with which Interstate Fibernet had been consolidated. Furthermore, the district court did not enter a final judgment under Rule 58.

After IFN and MPC filed an appeal with this court, the district court continued to exercise jurisdiction over Interstate Fibernet. The district court issued an order on March 19, 2003 that, inter alia, granted Welch and Purcell's motion to withdraw their RICO claims, granted Welch and Purcell's motion to withdraw their motion for class certification, and denied as moot Welch and Purcell's motion to dismiss for lack of subject-matter jurisdiction. The order also dealt with various issues in the McLaughlin case. Then, on May 7, 2003, the district court issued an order granting John M. Deakle's motion for leave to withdraw as counsel of record for Welch and Purcell.

Based on the unusual circumstances surrounding the district court's February 19 order, this court requested the parties to address whether we have jurisdiction to hear this appeal. Welch and Purcell took the position that we lack appellate jurisdiction, and filed a motion to remand. That motion was carried with the case.

II. APPELLATE JURISDICTION
A. 28 U.S.C. § 1291

Before we consider the merits of this appeal, we must first determine whether appellate jurisdiction exists. IFN and MPC contend that we have jurisdiction over this appeal because the district court's February 19 order was a "final decision" appealable under 28 U.S.C. § 1291. Welch and Purcell respond that the order is not a final decision, under Ringwald v. Harris, 675 F.2d 768, 771 (5th Cir.1982), because the order dealt only with Interstate Fibernet, even though Interstate Fibernet had been consolidated for all purposes with McLaughlin and the two suits could have been filed as one suit. IFN and MPC disagree. We conclude, however, that the district court's February 19 order was not a final judgment because it did not dispose of all claims in the Interstate Fibernet case and the district court did not, apparently, intend for the order to be a final judgment.

"A `final decision' generally is one which ends the litigation on the merits and leaves nothing for the court to do but execute the judgment." Catlin v. United States, 324 U.S. 229, 233, 65 S.Ct. 631, 89 L.Ed. 911 (1945). Thus, "as a general rule, all...

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