908 F.2d 1218 (5th Cir. 1990), 89-3133, Kelly v. Lee's Old Fashioned Hamburgers, Inc. (Lee's Old Fashioned Hamburgers of New Orleans, Inc.)

Docket Nº89-3133.
Citation908 F.2d 1218
Party NameWendolyn A. KELLY, Plaintiff-Appellant, v. LEE'S OLD FASHIONED HAMBURGERS, INC. (LEE'S OLD FASHIONED HAMBURGERS OF NEW ORLEANS, INC.), Defendant, State Farm Fire & Casualty Company, Defendant-Appellee.
Case DateJuly 31, 1990
CourtUnited States Courts of Appeals, Court of Appeals for the Fifth Circuit

Page 1218

908 F.2d 1218 (5th Cir. 1990)

Wendolyn A. KELLY, Plaintiff-Appellant,

v.

LEE'S OLD FASHIONED HAMBURGERS, INC. (LEE'S OLD FASHIONED

HAMBURGERS OF NEW ORLEANS, INC.), Defendant,

State Farm Fire & Casualty Company, Defendant-Appellee.

No. 89-3133.

United States Court of Appeals, Fifth Circuit

July 31, 1990

Page 1219

Wendolyn Kelly Long, Grand Isle, La., pro se.

Michael J. Navitsky, Garner, Munoz & Navitsky, New Orleans, La., for intervenor.

James L. Harmon and Joseph R. Ward, Jr., Ward & Clesi, New Orleans, La., for defendant-appellee.

Appeal from the United States District Court For the Eastern District of Louisiana.

Before CLARK, GEE, GARZA, REAVLEY, POLITZ, KING, JOHNSON, WILLIAMS, GARWOOD, JOLLY, HIGGINBOTHAM, DAVIS, JONES, SMITH, DUHE, WIENER and BARKSDALE, Circuit Judges.

PER CURIAM:

We took this case en banc to consider the following question: May a district court enter a partial final judgment under Federal Rule of Civil Procedure 54(b), without reciting that "no just reason for delay" exists for its entry.

I.

The background facts of this case are stated fully in the panel opinion. 896 F.2d 923 (5th Cir.1990). We will state only the facts important to our decision today. Kelly sued several defendants. The district court granted one defendant's motion for summary judgment and dismissed all of plaintiff's claims against that defendant, but the court did not dispose of the claims against other defendants. By minute entry, the judge directed the dismissed defendant to "prepare and submit 54(b) judgment to the Court."

The order submitted and signed was captioned "F.R.C.P. 54(b) JUDGMENT." In the order, the trial court directed "that there be final judgment entered pursuant to Federal Rule of Civil Procedure 54(b)...." The order does not provide that "no just reason for delay" exists for entry of the judgment. 1

Kelly appealed the order as a final judgment. 28 U.S.C. Sec. 1291. The panel questioned whether the judgment qualified as a partial final judgment under Rule 54(b). The panel concluded that "no particular language need be included in the judgment so long as the order reflects an unmistakable intent by the district court to enter an appealable order under Rule 54(b)." 896 F.2d at 924. Finding the necessary indication of intent in the order itself, the panel concluded that a partial final judgment had been entered and therefore that the court had jurisdiction to consider the appeal.

II.

A.

With one exception, our Rule 54(b) cases follow a consistent path. Where neither the order appealed from nor related portions of the record reflect an intent by

Page 1220

the district judge to enter a partial final judgment, we refuse to consider the order appealable as a final judgment. See, e.g., Borne v. A & P Boat Rentals No. 4, Inc., 755 F.2d 1131 (5th Cir.1985); Thompson v. Betts, 754 F.2d 1243 (5th Cir.1985). Our decision in Thompson v. Betts illustrates this approach. In that case, the plaintiff appealed the dismissal of one defendant although claims were pending against a second defendant. We found "no hint in the record that the district court certified its order as a final judgment under Rule 54(b) or that the parties even sought such a ruling." Id. at 1245-46. We concluded that the judgment was not final and refused to consider the appeal.

Where, on the other hand, language in the order either independently or together with related parts of the record reflects the trial judge's clear intent to enter a partial final judgment under Rule 54(b), we consider the order appealable. See Crowley Maritime Corp. v. Panama Canal Comm'n, 849 F.2d 951, 953 (5th Cir.1988); EEOC v. Delta Air Lines, Inc., 578 F.2d 115, 116 (5th Cir.1978).

In Crowley, the district court dismissed appellant Rolstad's intervention but did not dispose of other claims against other parties. Rolstad moved the court to amend its order "pursuant to Rule 54(b) of the Federal Rules of Civil Procedure, to include the expression of opinion that 'the Court has made an express determination that there is no just reason for delay and that it is adjudged that the plaintiff's complaint be and the same hereby is dismissed.' " Id. at 953. The district court granted the motion but did not include in its order either the "no just reason for delay" language or language expressly directing the entry of judgment. Despite the district court's failure to set out this language in the order, we concluded that a proper Rule 54(b) certification had been made and entertained the appeal. We noted that although the "district court did not expressly include the magical language in any of its orders," the underlying motion "contained the necessary language and called it to the district court's attention, and the district court's intent ... cannot be genuinely disputed." Id. at 953. Rejecting a "form-over-substance" approach that "would not significantly advance the purposes of Rule 54(b) and would frustrate the manifest intent of the parties and the trial court," we concluded that the trial judge had made sufficient certification to enter a partial final judgment under Rule 54(b). Id.

Our decision in EEOC v. Delta Air Lines reflects a similar approach. In the order appealed from, the district court quoted portions of Rule 54(b), "but, instead of making the rule-required determination and direction merely stated: '[a]ccordingly, the Court expressly directs the entry of final judgment....' " We concluded that "[a]lthough the order does not literally track the requirements of the rule, the district court's wording is sufficiently clear to permit us to be sure the required determination and direction was intended." Id. at 116.

We are persuaded that the standards developed in Crowley and EEOC for determining whether a district judge has entered a partial final order under Rule 54(b) are sound and workable, and we will continue to follow them. If the language in the order appealed from, either independently or together with related portions of the record referred to in the order, reflects the district court's unmistakable intent to enter a partial final judgment under Rule 54(b), nothing else is required to make the order appealable. We do not require the judge to mechanically recite the words "no just reason for delay."

This view of Rule 54(b) is not inconsistent with the requirement in the rule that the trial judge make an "express determination" that no just reason for delay exists. When the court recites Rule 54(b) in the order or grants a motion requesting entry of judgment under Rule 54(b), the court expressly incorporates the entire rule by reference and signals its conclusion that the requirements of the rule have been met and entry of partial final judgment is proper. 2

Page 1221

2]

This practical, common sense interpretation of Rule 54(b) is consistent with Rule 1's direction that the rules be "construed to secure the just, speedy and inexpensive determination of every action." This interpretation is also compatible with the purpose of the "express determination" requirement:

The obvious purpose of this section, as indicated by the notes of the advisory committee, is to reduce as far as possible the uncertainty and the hazard assumed by a litigant who either does or does not appeal from a judgment of the character we have here. It provides an opportunity for litigants to obtain from the District Court a clear statement of what that court is intending with reference to finality, and if such a direction is denied, the litigant can at least protect himself accordingly.

Dickinson v. Petroleum Conv. Corp., 338 U.S. 507, 512, 70 S.Ct. 322, 324, 94 L.Ed. 299 (1950) (footnote omitted). See also J. Moore, W. Taggart & J. Wicker, Moore's Federal Practice p 54.27[2.-2] (2d Ed.1988) at 114-16.

Our interpretation of Rule 54(b), has not, to our knowledge, created problems for litigants in determining when to appeal partial judgments. Counsel should know that the district court has entered a partial final judgment when the order alone or the order together with the motion or some other portion of the record referred to in the order contains clear language reflecting the court's intent to enter the judgment under Rule 54(b).

B.

One of our cases is out of step with the approach we have developed in determining whether a partial judgment is appealable. In Mills v. Zapata, 722 F.2d 1170 (5th Cir.1983), the district court granted relief on an ancillary demand without disposing of all claims against all parties. Neither the order appealed from nor related pleadings in the record recited Rule 54(b). The Mills panel apparently inferred the district court's intent to enter a final judgment from the posture of the case and the circumstances surrounding the entry of judgment. Mills is contrary to the balance of our circuit authority and is therefore overruled.

C.

We now apply the standard discussed above to the facts of this case. As noted above, the record contains a minute entry directing the prevailing defendant to "prepare and submit 54(b) judgment to the Court." The order appealed from is captioned "F.R.C.P. 54(b) JUDGMENT" and further directs "that there be final judgment entered pursuant to Federal Rule of Civil Procedure 54(b)...."

The only question, then, is whether this language reflects with unmistakable clarity the district judge's intent to enter a partial final judgment under Rule 54(b). We have no doubt that it does. In reaching this conclusion, we make the very reasonable assumption that federal district judges know the requirements of this frequently used rule. Rule 54(b) deals only with partial final judgments. Thus, when the district court directed that a 54(b) judgment be prepared, then entered judgment...

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